Pa. fining nursing homes more often

The Pennsylvania Department of Health has fined nursing homes more in the first four months of this year than in the previous three years combined, as regulators started using a more rigorous penalty system after coming under fire for going too lightly on substandard care.

This year's four-month total for fines was $796,750, compared with $639,500 total for the three years ended Dec. 31, state Health Department records show. The totals do not include federal fines that are recommended by the state and are typically much larger.

State surveyors sanctioned 86 facilities so far this year, compared with 72 in all of last year and 47 in 2014 and 2015 combined.

The Health Department said it was responding to an auditor general report issued last summer.

"When the auditor general looked at our oversight of nursing homes, one of the key recommendations was to be more aggressive in our oversight, and we are," the department said this week in a statement.

As to whether the tactic is improving care at the state's 700 nursing home, state regulators said that "it is too early to tell the impact this is having."

An industry spokesman said the impact was clear: The heavier sanctions are a financial strain on operators but are not likely to produce better outcomes for residents.

"Any time a dollar leaves the bedside that didn't have to leave the bedside, that's an opportunity lost to enhance the care provided," said Russ McDaid, president of the Pennsylvania Health Care Association and the Center for Assisted Living Management, both trade groups in Harrisburg.

But an advocate for the elderly who helped spur tougher oversight of nursing homes with a 2015 report that criticized the Health Department for dismissing 92 percent of the complaints against Philadelphia nursing homes welcomed the change.

"This jump in fines sends a clear message to nursing home operators that the days of lax oversight are over," said Sam Brooks, a lawyer at Community Legal Services in Philadelphia.

"For years, nursing homes were allowed to provide inadequate care that resulted in widespread harm to nursing home residents across Pennsylvania. Easily preventable deaths and injuries became common, as nursing homes did not fear any penalty," Brooks said.

Secretary of Health Karen Murphy announced in October that the department would start using more discretion in deciding how much it would fine facilities, taking into account the level of harm, how long it takes for a problem to be fixed, the facility's track record of compliance, and other factors.

Two of the three operators with the highest totals of fines at their facilities are no longer operating in the state.

Golden Living, which is based in Texas and ranked first with $165,150 in fines dating to 2014, sold the operating licenses for 36 facilities in four transactions on Oct. 1 and Feb. 1, the Health Department said. Golden Living also had the largest total for a single facility, $68,900 at the former Golden Living Center-West Shore, in Camp Hill.

After agreeing to a $2 million settlement with the state's attorney general for allegedly not providing enough staff to adequately care for residents, Reliant, based in Eddystone, sold 17 nursing homes last August, according to the Health Department. Former Reliant facilities had fines totaling $97,900.

Ranking second for total fines was Oak Health & Rehabilitation Centers Inc., a 501(c)(3) that, in 2015, assumed the Pennsylvania operations of Extendicare Health Services Inc., a Canadian company that divested its U.S. operations after agreeing in 2014 to pay $34 million because it billed for "nursing services that were so deficient that they were effectively worthless," the Justice Department said.

Problems have continued at the facilities now operated by Oak Health & Rehabilitation Centers, whose board president is Bala Cynwyd lawyer Howard Jaffe, according to the organization's latest Form 990 tax filing.

Oak facilities received $121,450 in fines, including the second-largest facility total in the state, $37,500 at Suburban Woods Health & Rehabilitation Center in East Norriton. It was cited, among other things, for incidents in October and November when the same resident, who suffers from incontinence, fell out of bed while being cleaned by a single nursing assistant, instead of two, as required to perform the task safely.

Jaffe, who has also been affiliated with a nonprofit that owns the troubled Towne Manor East in Norristown, did not respond to requests for comment.

Ron Barth, CEO of LeadingAge PA, a trade group for nonprofit long-term care providers, acknowledged that there are horror stories in nursing homes and bad facilities, which he said the department rarely shuts down. Instead, he said, the department seems to have decided that it will "fine all facilities into compliance."

That approach is destroying morale, Barth and others in the industry said.

One reason for higher fines is a new approach to citing nursing homes for "immediate jeopardy," which is defined by federal regulators as "a situation in which the facility's noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident."

Brooks, the CLS lawyer, said an example of immediate jeopardy is when residents who are not supposed to eat solid food are left alone during a meal. This is a dangerous situation that can and has led to choking deaths.

Last year, the state had 39 immediate jeopardy citations, up from 12 in 2015 and 11 in 2014. The state said a major reason for the increase was the decision to allow anonymous complaints in 2015. "Each time there is a complaint, our surveyors investigate, and by being on-site more frequently they identified more immediate jeopardy cases. When there is an immediate jeopardy case, the issue must be corrected before the surveyor leaves to ensure the safety of the patients," the department said.

In a case that has baffled those in the industry, a surveyor cited a facility near Harrisburg for immediate jeopardy in March because the hot water available from a water purifier outside the CEO's office and near the activity room was too hot and residents could have been hurt if they pressed and held two red buttons to dispense hot water. In the past, the surveyor probably would have pointed out the potential problem and suggested that management fix it, Barth said. Now, the nursing home will be fined, and its rating on Nursing Home Compare will plummet, he said.

"In the meantime, there are bad facilities out there that the department still allows to operate," Barth said.