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U.S. Toughens Enforcement of Nursing Home Standards

By: Robert Pear
The New York Times, December 4, 2000

WASHINGTON, Dec. 3 — In a new crackdown on substandard care, federal officials have imposed fines on hundreds of nursing homes across the country, and courts have upheld penalties of more than $1,000 a day for each violation.

The officials said they had increased the number of fines under instructions from President Clinton to toughen enforcement.

In the most recent fiscal year, which ended on Sept. 30, the federal government imposed five times as many fines as it had in 1996: a total of 1,000, up from 199.

The nursing homes have been accused of filing false claims for federal medical insurance when they harmed patients by not meeting federal standards.

The United States Court of Appeals for the 10th Circuit, in Denver, recently upheld a penalty of $1,300 a day against a Utah nursing home that had allowed patients to develop pressure sores, or bedsores.

The court said the fine was "appropriate and reasonable" because the home, the South Valley Health Care Center in West Jordan, Utah, had caused harm to patients by flouting federal standards.

In another case, Beechknoll Convalescent Center in Cincinnati was fined $153,000. The government said the home had failed to respect patients' privacy rights and to care properly for patients suffering from pressure sores, infections and incontinence. The home is contesting the fine.

Doctors and nurses consider bedsores potentially serious problems because, if neglected, they can damage surrounding tissue, extend deep into the muscle and bone and cause long hospital stays.

About 1.6 million people live in about 17,000 nursing homes nationwide. Ninety-five percent of the homes are subject to federal standards because they participate in Medicaid or Medicare, the government programs for low-income people and the elderly or disabled.

Using a new strategy, the Justice Department has begun to attack substandard care by asserting that nursing homes violate the False Claims Act when they file claims with the government seeking payment for care that was not adequate.

In recent lawsuits against three nursing homes in Philadelphia, the government said the homes had filed "false, fictitious or fraudulent claims" because they did not provide the nursing, nutrition and other services they had promised.

David R. Hoffman, an assistant United States attorney in Philadelphia, said: "The common thread in these cases is that nursing home residents received grossly inadequate care. They were profoundly malnourished, lost significant amounts of weight and developed pressure ulcers that did not heal and were not treated.

"When nursing homes submit claims, they certify that they comply with all laws and regulations. But in these cases, that was false."

Nursing homes say they have a strong incentive to settle such cases because if they lose in court they can be required to pay $10,000 for each false claim, plus three times the amount of any losses sustained by the government.

Two of the Philadelphia homes, the Mercy Douglass Center and the Stephen Smith Home for the Aged, agreed to settlements under which they paid the government $80,000 apiece. They also agreed to accept the appointment of temporary managers to operate the homes, and to pay for federal monitors, who will visit the homes at least once a month to assess the quality of care.

The third home, the Ashton Hall Nursing and Rehabilitation Center, agreed last month to pay the government $60,000 and to spend $100,000 over the next two years on lighting, air-conditioning and other equipment.

Most of the recent cases involve civil fines or payments to the government to settle civil charges, but in a few cases the government has won criminal convictions.

In October, a former deputy commissioner of the Oklahoma Health Department and a nursing home owner were convicted of federal bribery charges. Prosecutors said the state official, Brent VanMeter, had given favorable treatment to certain nursing homes in return for the bribe.

Rodney A. Johnson, a lawyer in the Dallas office of the federal Department of Health and Human Services, said the recent enforcement actions had touched off "a maelstrom" in the world of long-term care.

"On almost any given day in this country," Mr. Johnson said, "a Medicare-certified nursing home receives a letter from the Health Care Financing Administration, notifying the home that one or more remedies have been imposed, including perhaps civil monetary penalties."

David M. Shell, a lawyer for the South Valley nursing home in Utah, said he thought the government had "run amok" in its crackdown. "The inspectors, the surveyors, are instructed to find deficiencies," he said. "It's very difficult for the homes to win, or even to get a fair hearing."

But consumer advocates welcome the federal crackdown. Esther Houser, the state long-term care ombudsman in Oklahoma, said, "We've been trying for at least 15 years" to get the state Health Department to take a more aggressive approach to enforcement.

In July 1998, under pressure from Congress, President Clinton ordered federal health officials to step up enforcement, to focus on nursing homes with a history of poor performance and to conduct more inspections at night and on weekends.

In February, the United States Supreme Court ruled that nursing homes must go through an elaborate sequence of administrative appeals before they can challenge fines in court. In that case, Shalala v. Illinois Council on Long-Term Care, the justices said they realized that their decision would cause hardship for some nursing homes, but they insisted that Congress wanted all Medicare claims to be reviewed first in the Department of Health and Human Services.

Marie C. Infante, a Washington lawyer who has advised many nursing homes, said: "In view of that decision, the cards are stacked in favor of the government now. For nursing homes to pursue an appeal is a tortuous process."

The federal government has posted evaluations of most nursing homes at www.medicare.gov