Randel Herring used to drive from Garner to Wilmington multiple times a week to see his son at NorthChase Rehabilitation and Nursing Center. Thirty year-old Jeremy sustained a traumatic brain injury in 2020 near Wilmington. He has needed full-time care ever since.
The long drives from the Triangle to the coast were tiring, but worth it to see his son, Herring said.
But the visits left him worried. Once, he found Jeremy lying in his own waste, Herring said. Jeremy also developed bedsores. He needed staff to help him eat his soft foods diet, but Herring said they often rushed and his son vomited.
Herring complained to the nurses, but they seemed understaffed and said they had other patients, he said. He also asked repeatedly to transfer his son to Garner, but said the staff told him that wasn’t possible, he said.
Herring succeeded in taking his son home in 2023 and now takes care of him with his wife. But if Jeremy had received better care, his condition might have improved, Herring said.
“That’s the most heartbreaking thing on my mind,” he said.
Herring filed a written complaint at the facility and went to administrators, but with no results, he said.
Sarah Revis, administrator at NorthChase, wrote in an emailed statement to Carolina Public Press: “The care and safety of our residents is our utmost concern. Due to legal constraints, we are unable to discuss any matter that involved the privacy of a resident.”
Principle Long Term Care, with which NorthChase is affiliated, directed questions to NorthChase.
The Centers for Medicare and Medicaid Services, a federal agency also called CMS, relies on state government officials to look into complaints.
But state agents are behind on their nursing home inspections, according to the state Division of Health Service Regulation, part of the broader North Carolina Department of Health and Human Services.
A 2023 U.S. Senate report said nearly a third of the nation’s nursing homes are behind on annual inspections, which advocates said led to complaints of abuse and neglect going uninvestigated for months.
President Joe Biden’s administration’s nursing home proposal would require long-term care facilities to have a registered nurse 24 hours a day and one certified nursing aide for every 10 patients. It would also include stronger enforcement measures. Yet the proposal may partly rely on states to carry out the new rules, according to CMS.
Falling behind
The state Department of Health and Human Services has 97 professionals to conduct the inspections and investigations that ensure enforcement of nursing home rules, a DHHS spokesperson wrote in an emailed statement. On Nov. 30, 2023, 17 of those positions were vacant.
Nursing home care complaints increased almost 30% from 2016 to 2022, the DHHS spokesperson wrote. The number of inspector positions has stayed stagnant for years, and staff face uncompetitive salaries and high turnover rates, the spokesperson wrote.
According to DHHS, the funding from the agency’s contract with CMS is “insufficient to cover our costs to fulfill the federal obligations” and federal funding has remained flat for nearly a decade.
Yet inspectors may have new responsibilities; a CMS spokesperson wrote the agency currently “envisions” that surveyors would enforce the proposals for new nursing home rules, such as the staffing requirements.
The spokesperson wrote in an emailed statement that President Biden has called on Congress to increase support for inspections and the agency expects to integrate the new requirements into the current survey process, “which the state inspectors already carry out.”
“Thus, we would not anticipate any significant concerns or time impact from the proposed staffing requirements being incorporated into the current survey process,” the spokesperson wrote.
The state division is also partially funded by the General Assembly, which increased salaries but not to the level that Gov. Roy Cooper recommended, the DHHS spokesperson wrote. The General Assembly also hasn’t added any inspector positions since 2021, the spokesperson wrote.
Cindy Deporter was the state agency director at the Division of Health Services Regulation until retiring in May 2021, and is a board member of Friends of Residents in Long Term Care. She said the inspector job requires long hours and has an extensive training process.
“It is very difficult to keep surveyors because of the rigors of the job,” she said.
Enforcing nursing home rules for staffing
Along with the proposed nursing home rules, CMS announced the agency would increase staffing audits and make sure facilities receive consequences for cited deficiencies in Sept. 2023.
Eric Carlson is the director of long-term services and supports advocacy at Justice for Aging, a low-income senior advocacy organization. He said regulators must find actual harm or a widespread violation that could cause more than minimal harm to impose penalties.
Carlson said CMS needs to be able to assess penalties solely for failing to meet the federal staffing requirements if those pass, without having to prove harm.
“A root cause of bad outcomes is not having adequate staff, because the staff doesn’t have time to really pay attention to people,” he said.
The CMS spokesperson wrote that the agency can impose penalties for not complying with federal nursing home rules, including staffing requirements, and currently exercises that power.
Ernest Tosh is a lawyer focused on nursing home abuse who testified about financial and staffing practices of nursing homes to the U.S. Congress. He said facilities have a financial incentive to take on sicker patients, because they receive a higher reimbursement rate from Medicare and Medicaid.
Even if facilities meet the minimums required by the nursing home rules once passed, Tosh said, residents who need more care may not receive it if the facility is only concerned with the requirement.
“If the care needs of the individuals in that facility are significantly higher than the minimums, it’s going to be an absolute disaster,” he said. “Because they will only staff to the minimum.”
Currently, facilities must have “sufficient nursing staff,” which is determined by resident assessments and individual care plans to ensure staffing to residents’ acuity, according to the CMS spokesperson. That includes a registered nurse at least eight hours each day and licensed nurses 24 hours a day. CMS and state surveyors assess compliance in their inspections.
If the proposed nursing home rules for staffing minimums are passed, the CMS spokesperson wrote that the agency would “continue to ensure facilities staff higher than the minimum staffing requirements as needed to meet residents’ needs.”
Tosh said enforcement often falls back on individual litigation, which hasn’t proven to be a deterrent. While it may be true that staffing is harder for rural facilities, Tosh said, those facilities still must make sure they’re staffing to what their patients need.
Tosh said he’s seen “rampant fraud” in the system, wherein facilities lie about having sicker patients to receive higher rates. But that’s often only discovered if someone from the facility speaks out, he said.
According to a Department of Justice press release, Saber Healthcare Group agreed in 2020 to pay $10 million to resolve allegations that facilities in North Carolina and other states placed new residents into the category with the highest Medicare reimbursement, even if residents didn’t need it.
SavaSeniorCare LLC, which also had some N.C. facilities, agreed in 2021 to pay $11.2 million over similar allegations of billing Medicare for unnecessary therapy.
Saber Healthcare Group did not respond to requests for comment. Sava planned to cease operations by early 2023.
In an emailed comment, Adam Sholar, CEO of the North Carolina Healthcare Facilities Association, wrote that nursing homes already file audited reports to show where their funding goes, and that federal and state agencies review the staffing information and judgements of acuity.
“It is very uncommon for those examinations to result in adverse findings,” he wrote. “To suggest that the heroes who provide care to our state’s most vulnerable residents are acting fraudulently is insulting.”
Calling for financial transparency
The Biden administration proposed increased payment transparency, but Justice for Aging commented that those measures fail to address “related party transactions,” or when management uses services from entities they’re connected to.
The HHS Office of the Inspector General announced new oversight work of those transactions in Sept. 2023.
Owners can cite those payments to related parties as costs in their expense reports, Carlson said.
A 2023 NPR investigation found nursing home owners throughout New York drained facility coffers through payments to companies that the owners controlled or ran.
The CMS spokesperson wrote that the agency issued final nursing home rules in Nov. 2023 that require nursing homes enrolled in Medicare or Medicaid “to disclose additional information regarding their owners, operators and management.”
That includes providers of administrative services or clinical consulting services, and “entities that exercise financial control over the facility,” the spokesperson wrote.
Tosh said corporate owners can make it look like they’re doing poorly financially by only reporting on the nursing homes.
“The nursing home industry as a whole is driven by corporate greed,” he said. “That’s what people don’t understand, because the industry has been so effective in delivering the message that they lose money.”
Sholar wrote that state Medicaid agencies have “routinely provided inadequate funding to pay the wages needed to recruit and retain an adequate workforce,” and that nursing homes often lose money because of the agencies’ underfunding.
Editor’s note: This article is part of the project “Falling Short: Rebuilding elderly care in rural America” from news organizations across the United States. Rural nursing homes nationwide, already understaffed, face significant new federal staffing requirements. With on-the-ground reporting from INN’s Rural News Network, and data analysis assistance from USA TODAY and Big Local News at Stanford University, Carolina Public Press is one of eight newsrooms exploring what the rule change would look like for residents in communities across America. Support from The National Institute for Health Care Management (NIHCM) Foundation made the project possible.
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