Nursing home abuse comes under government spotlight

Nursing homes and hospitals with long-term care facilities can help protect themselves against charges of patient abuse by establishing protocols to address this thorny but increasingly high-profile problem. Now would be a good time for compliance officers to check protocols as the government zeroes in on this issue.

The General Accounting Office (GAO) told the Senate Special Committee on Aging March 4 that 30% of the nation’s 17,000 nursing homes have been cited for deficiencies involving actual harm to residents or placing them at risk of death or serious injury in recent years. The actual extent of the problem is probably even worse, it added, but no one really knows how much worse.

According to the GAO, it is a difficult problem to quantify for several reasons. First, states differ in what they consider abuse; some states do not count incidents that other states or the Centers for Medicare & Medicaid Services (CMS) would count as abuse. In addition, for a variety of reasons, victims, their families, and witnesses often are reluctant to report abuse.

Committee chairman John Breaux (D-LA) said another problem is lack of coordination among government agencies charged with oversight in this area. He said that while many agencies have it within their jurisdiction to respond to claims of abuse, all too often, no single agency has ultimate responsibility to investigate allegations.

The GAO also reported that while some research focusing on citations of nursing homes for abuse-related violations are maintained in a CMS database, these data reflect only the extent to which facilities fail to comply with federal or state regulations.

"Abuse incidents that nursing homes handle properly are not counted because no violation has been committed that warrants a citation," according to the agency.

According to health care attorney Joe Bianculli of Bianculli & Impink in Arlington, VA, that is not exactly correct. In fact, he says, one reason there are so many abuse citations is that they cite the abuse itself and the facility’s failure to investigate properly under the same tag. "Some of the abuse citations are really failure-to- investigate’ citations," he explains.

If a facility investigates a complaint properly and responds properly, it is up to each state agency whether to cite abuse, says Bianculli. He adds that in some CMS regions, certain memos instruct surveyors not to cite abuse if a facility had in place appropriate training, policies, and procedures, and promptly investigated, reported, and responded. "But that is by no means a universal practice by state agencies," he adds. "In fact, in many states, if you self-report, you are asking for a citation."

In addition, Bianculli says that surveyors sometimes cite "failure to determine the cause" for unexplained bruising or other injury as abuse as well. That frequently leads to citations for unexplained incidents, he says.

Bianculli agrees that nobody knows how pervasive the problem really is. He points out that the instances of abuse cited at the hearing took place years ago.

But even without any hard evidence, he fears that some lawmakers may dramatize the issue based on isolated, anecdotal horror stories.

Bianculli says a useful rule for facilities to follow is, "When it doubt, always report it." But he says the problem with that is, the more reports a facility makes, the greater the likelihood that a survey agency will conclude that an appropriate investigation was not performed or that a certain set of facts may have constituted abuse. "That pattern varies not just considerably but wildly from state to state," he says.

Delta Holloway, a registered nurse and licensed nursing home administrator, told the committee that, to make the system function better, providers must take two immediate steps. First, they must establish an efficient reporting system predicated on a clearly defined standard of abuse.

Second, they must work as partners with all parties involved in the complaint and investigation process. "With regard to identifying abuse, this is not as simple as it may seem," warned Holloway, president and quality assurance officer for Western Health Care in Boise, ID. But if the standard is clear, it will be easier to enforce.