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Laws Offer More Patient Protection in Nursing Homes: Critics of the Legislation Say the Problem Has Not Been the State's Laws, But the State's Enforcement Record
By Jennifer Levitz, The Providence Journal
July 3, 2005
Responding to nursing-home failures in Rhode Island, the General Assembly has passed a much-awaited package of legislation that is designed to strengthen regulation of the state's roughly 100 nursing homes.
The House and Senate gave final approval Wednesday to the Long Term Reform Act, sending five bills to Governor Carcieri, who is expected to sign the legislation into law on Tuesday.
The bills include the Germaine Morsilli Act, named for an 87-year-old woman whose bedsore deepened into a bloody crater over 117 days, while the Health Department gave the chronically troubled Hillside Health Center in Providence chance after chance to meet minimum standards of care.
The package of bills aims, above all, to prevent another patient from suffering as Morsilli did or another nursing home from failing as Hillside did. It orders the state to be less tolerant of nursing homes that have poor inspections or show signs of financial problems.
Instead, the Health Department, under the new laws, would focus like a laser on nursing homes that have mismanagement, bedsores, bounced paychecks and complaints.
The laws also would require nursing-home owners to prove they have sufficient cash on hand for day-to-day operations.
"Our intention is to guarantee that every person who lives in a Rhode Island nursing home is getting the care that he or she needs," Sen. Elizabeth H. Roberts, D-Cranston, co-chairwoman of the Joint Committee on Health Care Oversight, said in a statement.
Rep. Steven M. Costantino, D-Providence, co-chairman of the committee, said in a statement that the legislation was a bipartisan effort "to take a hard look at Rhode Island's nursing-home industry, figure out where the strengths and weaknesses are, and come up with a comprehensive plan that will refocus the whole system, top to bottom, on improving care for residents."
Yet, advocates for the elderly caution that the new laws won't matter if they aren't enforced.
Rhode Island already has forceful nursing-home laws, but a March report by the state's Auditor General found that the Health Department often ignored them.
The laws, for instance, already require the Health Department to conduct inspections every other month if substandard care is found. That didn't happen in the case of Hillside, which opened in 1999 and had a pattern of poor care and harming residents until it closed in June 2004.
"It was the failure to implement the laws appropriately, I think, that led to the problems," said Toby S. Edelman, senior policy attorney for the Center for Medicare Advocacy Inc., a Washington, D.C.-based organization that has followed Rhode Island's nursing-home crisis.
Since Hillside, the Health Department has temporarily stopped admissions at four other nursing homes because of poor care.
Dr. David R. Gifford, confirmed as the new Health Department director in the spring, said the new laws would provide more tools and clarity to the Health Department. The laws, for instance, would force nursing-home operators to disclose more financial information about cash on hand and overdue bills.
The most useful part of the legislation, he said, is "allowing us to use and collect data to target our investigations."
The Health Department is charged with making sure nursing homes that receive public Medicare and Medicaid money are up to standards.
The new legislation won't increase inspections for all homes.
In fact, the laws allow the Health Department to prioritize, to essentially visit stellar homes annually, while focusing on nursing homes where trouble might be brewing.
How will regulators know where to direct resources? The laws require the Health Department to track complaints, staffing, patient acuity, financial reports and inspections, and to put certain homes on a frequent-inspection list.
In effect, regulators and the state Department of Human Services would form a crisis team for problem homes, increasing inspections, scrutinizing financial books, and possibly forcing the nursing home to hire "quality monitors."
If a nursing home, for instance, requests an advance on Medicaid payments, indicating financial problems, that nursing home could be flagged for an inspection.
In no case, states the new legislation, would a home that has been flagged receive fewer than three inspections each year. If inspectors found substandard care, the inspections would be bimonthly.
The laws also create a triage system of complaints, requiring serious complaints to be investigated within 24 hours. The audit of the Health Department in March found that complaints were languishing for months.
The Germaine Morsilli Act requires the state to create a plan to notify residents and their families in cases of substandard care. Gifford, the health director, yesterday said the Health Department would ask nursing homes to mail inspection reports to families.
"Just posting it on a wall" -- as current law requires -- isn't enough, Gifford said.
If the Health Department verified that financial problems were affecting conditions at a nursing home, that information would also become public after 10 days. That disclosure was argued for by senior advocates and the American Civil Liberties Union.
The Germaine Morsilli Act also requires nursing homes to report nursing-home staffing levels to the state.
Some advocates for the elderly say the state was wrong to leave it up to nursing homes to self-report staffing levels. The Senior Agenda, a consortium of senior advocacy groups, argued for the state to impose minimum-staffing levels, as some states have done.
Jessica Buhler, program coordinator for the Senior Agenda, said the group plans to monitor the staffing reports filed by nursing homes to see that the reports are true. "We're going to be making sure [to watch] what's going on with that," she said.
The reform legislation also tightens controls on ownership, requiring, beginning in January, nursing homes applying for a license to disclose contracts with management firms and to identify anyone who has an ownership interest of 5 percent or more in the nursing home.
Nancy Costa, a registered nurse who has worked in nursing homes, said new regulations are only a "Band-Aid." Costa's late mother had been a resident at Oakland Grove, a Woonsocket nursing home that was temporarily closed to new admissions last fall because of problems with care.
"Patients just aren't getting the care they deserve," Costa said. "If a place can't provide the care, a person shouldn't be in operation, especially making a profit."
The legislation that passed the House and Senate last week included input from Carcieri, Lt. Gov. Charles J. Fogarty and Attorney General Patrick C. Lynch.
Norm Chapman, a member of the Rhode Island Silver Haired Legislature, a lobbyist group for the elderly, said he's pleased that the officials are "all focusing on the needs of the elderly; it's wonderful that they're looking seriously at nursing homes and conditions."
Like others, though, Chapman said the laws won't do any good if the nursing homes are just told "naughty, naughty." Penalties and enforcementare needed, he said.
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