Kentucky nursing homes seek less regulation

• Kentucky has 289 nursing homes with at least one in all 120 counties.
• Some of Kentucky's nursing homes have been fined nearly $16 million for violations.

Some of Kentucky's most vulnerable people — frail, elderly and disabled individuals in nursing homes — have been threatened, ridiculed, slapped, injured or sexually abused, but the state's nursing home industry is seeking relief from what it calls heavy-handed state oversight.

A review by The Courier-Journal of more than 100 reports of state inspections of Kentucky nursing homes over the past three years found multiple instances where residents had experienced such treatment or lived in squalid conditions amid urine, feces, mice and insect infestations. Several residents died after what regulators said was poor or neglectful care.

Some of Kentucky's 289 nursing homes have been fined nearly $16 million in the past three years for violations outlined in hundreds of pages of state inspection documents. They include:

• A months-long scabies outbreak at a Nicholasville nursing home, leaving tormented residents "itching, scratching and digging at their skin" from the mite that burrows into human skin.
• A nurse at a Western Kentucky facility popping a hot pepper into a resident's mouth, then laughing and calling the resident's response — weeping and crying out in pain — "priceless."
• A man at a Bardstown nursing home dying the day after he fell face down out of a wheelchair pushed by an aide. The man was not immediately treated for injuries that included facial, nasal and spinal fractures.
• A fistfight between a resident in a wheelchair and an aide at a Louisville nursing home so fierce that it took three staff members to pull them apart. An official at the facility, cited for multiple violations, admitted "it was obvious the system was broken" when it came to handling alleged abuse of residents.
• Repeated cases of "elopement," where residents wandered away, including one in which a resident left a Louisville nursing home in 28-degree weather, walking more than a mile to a bingo hall. In another case, a resident left a Northern Kentucky facility and was found by police along Interstate 75. In yet another, a resident in a locked Alzheimer's unit in Winchester simply opened a window and climbed out.
• An incident at a Williamstown nursing home where a resident took test tubes of unattended blood samples from a nurse's station, opened one, and appeared to be drinking from it when staff noticed the resident covered with blood in a wheelchair.

Yet Kentucky nursing home representatives are protesting what they say is excessive regulation, arguing that statistics show Kentucky inspectors are more likely to cite "immediate jeopardy" violations than regulators in other states — even though Kentucky nursing homes compare favorably in other categories, such as staffing or quality measures.

An immediate jeopardy violation is one that causes harm, serious injury or death, or is likely to do so, and carries fines of up to $10,000 a day.

Citing a "broken regulatory environment in Kentucky," Betsy Johnson, executive director of the Kentucky Association of Health Care Facilities, appeared before a legislative committee in Frankfort last month to complain about what she said is overly strict enforcement of rules meant to ensure safety of residents. The association represents 230 of the state's 289 long-term care facilities.

In a follow-up letter to the House-Senate Health and Welfare Committee, Johnson, a former state Medicaid commissioner, suggested such regulation leads to more lawsuits against nursing homes.

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"We firmly believe that the current regulatory environment only exacerbates the toxic litigation environment in Kentucky," Johnson said.

The nursing home industry has lobbied for years for a state law to limit lawsuits.

Testifying with Johnson was Mary Haynes, president of Nazareth Home in Louisville, who said many providers of nursing care "believe our state is in a crisis" when it comes to regulation.

"Kentucky is an outlier," said Haynes, citing Kentucky's high rate of immediate jeopardy citations.

The industry campaign has stunned advocates for quality nursing home care who say the state must not weaken oversight meant to protect the 23,000 residents in long-term care facilities.

"That's ridiculous," said Bernie Vonderheide, a Lexington man who has worked for years for better conditions at nursing homes through his group, Kentuckians for Nursing Home Reform.

Brian Lee, executive director of Families for Better Care, a Florida-based nonprofit that advocates for quality nursing home care, said lawmakers should consider details of violations before accepting the industry's claim of too much regulation.

"If you look at these inspections, all of them, all of them ... this is serious stuff," Lee said. "It's not dust bunnies in the air vents."

The industry campaign also prompted a forceful response from the state's top nursing home inspection official, Maryellen Mynear, the inspector general for the Cabinet for Health and Family Services, who, in a letter to the committee, took issue with the industry's conclusions about excessive regulation.

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"The fact that an industry believes it is over-regulated does not make it so," she said.

And some committee members raised questions at the hearing.

Rep. Darryl  Owens, a Louisville Democrat, asked about high-profile cases such as that of Hurstbourne Care Center at Stony Brook, which federal officials shut down this year because of filthy, unsanitary and dangerous conditions.

Haynes said she couldn't speak about that particular case but added this: "I think in any endeavor there will be those organizations that have a high level of success and others who struggle."

But the nursing home association's claim appeared to appeal to some lawmakers — among them Sen. Ralph Alvarado, a physician who has directed several nursing facilities.

"Maybe we can reduce the cost to our residents and facilities just by decreasing the regulatory burden we have in long-term care," said Alvarado, a Winchester Republican.

Rep. Tim Moore, an Elizabethtown Republican, wondered if regulators might learn a lesson from the old Andy Griffith television show featuring the small-town sheriff and his overly-zealous deputy, Barney Fife.

"There were times when Barney applied the law in such a way that it really wasn't helping anybody and it was just a burden to everybody and Andy had to rein him in," Moore said.

Mynear said at the hearing that the inspector general's office takes its work very seriously.

It conducts inspections of Kentucky nursing homes on behalf of the federal government, which provides most of the funding for nursing home care. In fiscal year 2015, Kentucky nursing homes received nearly $1 billion in Medicaid funds or an average of $3.25 million each, Mynear said.

Mynear said that the U.S. Centers for Medicare and Medicaid Services makes the final call on the severity of a violation and how much to fine the facility — not Kentucky inspectors. In some cases, the federal government has rejected Kentucky's recommendation for a lesser penalty and insisted on a higher fine and more severe citation.

She noted Kentucky has a relatively low percentage of "five-star" nursing homes under the rating system used by CMS, with five stars being the highest. Among the eight states in the CMS Atlanta region, Kentucky has the largest percentage — 42 percent — of facilities than rank below average.

Only 36, or 12 percent, have five-star ratings.

"We have a lot of very good providers," Mynear said. "We also have a few who are not good providers."

Kentucky's seemingly high number of immediate jeopardy violations may be skewed by the fact that some troubled homes rack up multiple or repeated citations, she said. For example, the Hurstbourne Center was cited for 17 separate immediate jeopardy violations, she said.

It was fined $629,000 for scores of violations detailed in a 700-page inspection report.

The Diversicare of Nicholasville facility was fined $891,350 this year for failing to curb the scabies outbreak. And Brownsboro Hills Health and Rehabilitation Center — where the aide and resident got into a fistfight — was fined $500,000 last year for a host of violations.

In the 2013 fiscal year, 47 of the state's 289 facilities had violations serious enough for fines; in 2014, 53 were fined; and in 2015, 40 were fined for serious violations, Mynear said.

The average fine for the last fiscal year was $52,000 per facility, she said.

Mynear also disputed Johnson's claim that citations lead to lawsuits and litigation costs for nursing homes.

In several recent Kentucky lawsuits involving egregious abuse or wrongful death cases, no violations had been cited or fines imposed, including one in which a jury awarded an $18 million judgment against a Berea facility. In that case, state inspectors had not been notified and had not investigated the facility after a 94-year-old resident died from infections from bedsores, including a softball-sized ulcer that left nerve endings and bone exposed, Mynear said.

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Wanda Delaplane, a Lexington woman who became active in reform efforts after her father died in 2002 in a Frankfort nursing home from an untreated bowel obstruction, said she is outraged the industry is lobbying to loosen oversight.

"It's clear the nursing home industry is not willing to deal with the facts," she said. "If they would take care of the people, they wouldn't have to be lobbying for anything."

Last month's hearing ended with an agreement for the nursing home industry and state officials to discuss areas of concern and possible resolution of disputes. Mynear said she's willing to talk but that doesn't mean her agency is willing to back down when it finds problems.

"We have to fulfill our mission to protect our elderly," she said.

Reporter Deborah Yetter can be contacted at (502) 582-4228 or at dyetter@courier-journal.com.

Kentucky nursing homes by the numbers

» 23,000, mostly frail, elderly people live in nursing homes.

» Kentucky has 289 nursing homes with at least one in all 120 counties.

» Medicaid pays $1 billion a year for nursing home care.

» Nursing homes in Kentucky paid $16 million in fines for violations over the past three years.

How to check out a nursing home

» The Inspector General's office for the Cabinet for Health and Family Services has inspection reports at http://chfs.ky.gov/os/oig/

» The federal government offers a rating system for facilities at Medicare.gov/nursinghomecompare

» All nursing homes are required to keep on file a copy of their most recent state survey, or inspection, and provide it upon request.