Nursing homes at 'crisis point'

Advocates for elderly and disabled, care providers seek solutions to polarizing issue Nashville Business Journal
- by Linda Bryant Staff Writer

Nashville nursing home patient rights advocate Floyd Stewart says he’s waited nearly three decades to see a serious discussion in Tennessee about nursing homes.

Stewart, 60, was paralyzed from the neck down 25 years ago after a car accident. He spent six years in Nashville’s Bordeaux Long Term Care.

Convinced a nursing home should be a last option, he earned a college degree, found employment and was able to move out of the facility, eventually buying a home.

Now, Stewart’s three-decade wait for meaningful dialogue on the subject of nursing home care may be on the verge of ending.

Nursing home operators in Tennessee battled with lawyers and advocates for the elderly and disabled last year over a bill aimed at minimizing lawsuits against nursing homes.

The power struggle was expected to resurface this spring, but the state has delayed the legislation for a year, in hopes the opposing sides can find common ground.

The legislation is called the Nursing Home Protection Act. It seeks to rein in lawsuits against nursing homes by limiting damages for neglect and abuse to $300,000. A legislative committee has extended the public comment period for the bill until February 2010.

One of the most debated portions of the proposed nursing home reform bill is a requirement that nursing home residents sign an agreement that would mandate arbitration instead of a jury trial in the case of a lawsuit. Proponents of the bill say if nursing homes could spend less money on settlements, insurance and lawyers, they’d be able to funnel the money back into improving patient care.

Opponents say care has deteriorated at the state’s nursing homes and patients’ civil rights will be severely jeopardized if the bill passes.

"We've reached a crisis point in Tennessee,” says Steve Flatt, senior vice president for development for nursing home operator National Healthcare Corp. in Murfreesboro, in testimony before the Nursing Home Tort Reform Study Subcommittee Jan. 21. “We are forced to spend $90 million a year defending lawsuits.”

National Healthcare (AMEX: NHC) is one of the nation’s largest nursing home operators, earning $45 million in 2007. Flatt says the state’s nursing homes are bombarded with suits from out-of-state law firms that are “trolling for business.”

Advocates for the elderly and disabled, including AARP Tennessee and the Tennessee Justice Coalition, want more time to tell their side of the story.

“I challenge every legislator to find one word in the bill that protects nursing home residents,” says Daniel Clayton, a partner at Kinnard Clayton & Beveridge in Nashville and president of the Tennessee Association for Justice. “We have a serious problem with our nursing homes in Tennessee, and it’s continuing to be ignored and denied.”

“One of the most important things to talk about in this debate is staffing,” Stewart says. “We have to talk about how to elevate the levels of education for the people working in the nursing homes. If those people were trained better and not working such long hours, I think the abuse and neglect reports would go down.

“It’s very easy to take advantage of people in nursing homes,” he adds. “A lot of them wouldn’t have to be there if they had family or someone to help with their personal care. Somebody needs to speak for them.”

Staffing, care levels in question

In Tennessee, nursing homes are required to have a minimum of two nurses on duty per shift. The minimum amount of daily care for each patient is two hours a day by nursing staff — with 24 minutes of that time with skilled nurses instead of nursing aides.

By contrast, the U.S. Department of Health and Human Services recommends 4.10 hours of care per resident per day as an optimum level, and the National Citizens’ Coalition for Nursing Home Reform recommends at least 4.13 hours of care per resident per day.

Nursing homes and senior advocates are at odds about state and federal reports that have pointed to violations and dangerous conditions in the state’s nursing homes.

In 2005, state inspectors issued 35 immediate jeopardy violations to nursing homes. That number increased to 152 in 2007. Immediate jeopardy violations are inspectors’ most serious reprimand and often follow cases where patients were physically or sexually abused or left without medications.

State inspections uncovered an unprecedented number of dangerous conditions in 2008, which led to the closure of 23 nursing homes.

“Tennessee has some of the worst nursing homes in America,” Clayton says. “We have every indication and numerous reports showing care is bad.”

In May 2008, a report from the Government Accountability Office, the investigative arm of Congress, rated Tennessee as one of nine states that most commonly failed to identify serious nursing home violations. State inspectors missed deficiencies about 26 percent of the time, the report says.

And in December 2008, the Centers for Medicare and Medicaid Services, in its first annual report on nursing home care, ranked Tennessee as the third worst state in the country for quality of nursing home care.

Of Tennessee’s 319 nursing homes, 111 received one star, the lowest rating. Only 22 of nursing homes, or 7 percent, received the centers’ top rating of five stars.

Only two of 30 nursing homes in Middle Tennessee earned five stars, which means they were judged as “much above average.” Eleven Mid-State nursing homes received one-star ratings, which the centers call “much below average.”

The state’s nursing home advocates, owners and lobbyists reject the survey and say it was conducted unilaterally, without the knowledge of the nursing homes.

“We can show how that process is inadequate, how it is flawed,” says Ron Taylor, executive director of the Tennessee Health Care Association, a nonprofit advocacy group for nursing homes and assisted-living facilities in Tennessee. “It is not a sufficient measurement of the quality” of Tennessee’s nursing homes.

legal challenges costly

Tennessee is one of 16 states that does not put some type of monetary limit on damages for lawsuits against nursing homes. In states where limits have been passed, the number of lawsuits dropped by as much as 80 percent, Flatt says.

Flatt points to a study by Chicago-based Aon Risk Consultants for Tennessee’s nursing home industry that found legal costs for nursing homes in the state averaged $4,800 per nursing home bed in 2006 — about $500,000 for each nursing home or $92 million statewide. He says that amount is the second highest in the country.

Clayton questions both claims, saying the states in which the number of lawsuits dropped addressed issues such as quality of care and staffing levels.

“Without neglect and abuse, you have no lawsuits,” he says.

He criticizes the Aon survey, saying only 22 percent of the state’s nursing homes were included in the survey.

In addition to spending millions of dollars defending the lawsuits, nursing homes will get less state money this year. Tennessee is cutting Medicaid funds earmarked for nursing homes by 7 percent, Taylor says. He estimates a $65 million loss for the nursing homes because of the cuts.

Although the nursing home debate is a polarizing issue, testimonies from both sides showed a willingness for an extended discussion in 2009 — and perhaps compromise.

“We welcome an honest and vigorous discussion,” Clayton said in his testimony. “But I would ask that we work to find the root causes of abuse and neglect in our nursing homes.”

Taylor also struck a civil tone.

“This is an extremely difficult and complex issue that’s not going to be solved through emotion,” he said. “It will be solved through facts.”

Serious Violations Force Closures

The Tennessee Department of Health suspends a state nursing home’s admissions when conditions are determined to be detrimental to nursing home residents’ health, safety or welfare.

The following are some of the cited reasons for nursing home closures in Tennessee in 2007 and 2008.

• Risk of injury or death by fire
• Maggots in wound
• Broken bones unattended for days
• Extreme weight loss due to improper nutrition/oversight
• Impacted bowels caused by inattention/oversight
• Extreme pain with no relief
• Fear of staff
• Abusive staff member
• Failure to control flies