Nursing Homes Persist as Gerontology's Greatest Challenge
by Michael Jonathan Grinfeld| Geriatric Times |  |
May/June 2000 | |
Vol. I | |
Issue 1 |
When Reba Gregory, a then-66-year-old resident of a Yreka, Calif., nursing home, fell and suffered multiple injuries in 1995, it seemed to be just another unfortunate incident that sometimes occurs with elderly patients.
She sued the nursing home. Three years later, a California Superior Court jury handed down a $95 million dollar verdict against the nursing home-nearly all in punitive damages-sending shock waves reverberating through the state. Suddenly, the issue of nursing home abuse and neglect, a perennial problem for more than a decade, took center stage.
Throughout the nation, the same scenario is repeated over and over. As jury awards grow, federal, state and local prosecutors have been busy, too, devoting millions of dollars in new resources to combat billing fraud and below-standard care. At stake are the health and welfare of more than 1.6 million elderly Americans who reside in the nations' more than 17,000 facilities. Last year alone, Medicare and Medicaid shelled out $39 billion for their care.
Despite great strides in geriatric medicine, nursing homes remain among the most challenging environments in which physicians are asked to deliver care. Faced with often complex medical issues, geriatricians must practice in a milieu too often underfunded and understaffed. This means even the simplest orders may not be followed.
"Patients in nursing homes are the toughest to care for in the health care system," John Burton, M.D., chief of the division of geriatric medicine and gerontology at Johns Hopkins University School of Medicine in Baltimore, explained to Geriatric Times. "They're the toughest because they are the oldest, frailest and the most dependent. The resources to provide care in a nursing home are also the poorest and the most limited of any within the health care system."
Federal and state legislators have largely turned to the legal system to reform nursing homes. This development threatens to marginalize the influence of health care policy-makers, including physicians. Nevertheless, there is still a role for physicians in shaping policies that will materially affect a growing number of Americans as the baby boomer population ages.
Efforts to combat the physical mistreatment of old people in residential or skilled nursing facilities have been around for a long time. By the mid-1980s, a number of states passed elder abuse statutes that were meant to curb neglect, abuse and abandonment. In California and Florida, for instance, special enhancements permit elderly plaintiffs to recover higher damages, including attorney fees and punitives, if they prevail. Those laws were purposefully enacted to encourage lawyers to take up the causes of a vulnerable and frail population.
By 1987, the federal government stepped in, mandating in the Omnibus Budget Reconciliation Act (OBRA) of 1987 that the Health Care Financing Administration (HCFA), the agency responsible for administering Medicare and Medicaid, improve its supervision of nursing homes reimbursed with federal funds.
Years passed before any real reforms took hold, however. HCFA didn't issue its final regulations governing nursing home care until 1995, after being inundated with thousands of comments, each of which had to be reviewed. Even then, it would take several more years to fine-tune the regulations, imposing an ever-increasing array of sanctions to enforce compliance with the minimum standards of care requisite for federal reimbursements.
By July 1998, following media reports of life-threatening conditions in some of California's nursing homes, the U.S. General Accounting Office (GAO) issued a blistering report that confirmed the worst of those reports. Not only did patients suffer unnecessary deaths and injuries due to abuse and neglect, but efforts by state and federal regulators to halt these catastrophic outcomes were often not effective.
Acting on charges by a California lawyer and his investigator that 3,113 California patients died under ambiguous circumstances in 971 different nursing homes during 1993, the GAO undertook an analysis of 1,370 facilities in that state, reviewing data accumulated from 1995 to 1998. The GAO found that nearly one-third of the homes were cited for serious or potentially life-threatening care problems. William J. Scanlon, the GAO's director of health financing and system issues, testified before the U.S. Senate's special committee on aging, "Despite the presence of a considerable federal and state oversight infrastructure, a significant number of California nursing homes were not and currently are not sufficiently monitored to guarantee the safety and welfare of nursing home residents."
Of the 1,370 homes evaluated, only 2% had minimal or no deficiencies. More than 60% of the facilities had deficiencies that either caused death or serious harm (30%) or that resulted in less serious harm, but nevertheless had a direct relationship to the health, safety or security of a resident (33%). After fully reviewing a 62-resident sampling of those patients who allegedly suffered avoidable deaths, the GAO determined that, in fact, 34 of them had received care that was unacceptable and sometimes endangered their health and safety.
Last November, in a follow-up report, the GAO took another look, evaluating the performance of HCFA's 10 regional offices. Despite efforts to address quality of care problems, the auditors determined that controls were still spotty and inconsistent. "HCFA does not have sufficient, consistent, and reliable data to evaluate the effectiveness of state agency performance or the success of its recent initiatives to improve nursing home care."
According to Cheryl Phillips, M.D., C.M.D., president of the American Medical Directors Association (AMDA), the GAO's criticism is largely unfair because it fails to take into account a complex set of factors that ultimately define a patient's outcome. "The Pandora's box is that abuse and neglect has become the shorthand statement for 'anything I don't like in the nursing home; anything that I'm angry with; anything that I can use from a plaintiff's perspective in litigation' gets labeled as abuse and neglect," she told GT. "Part of the frustration is that we haven't really done a good job of defining it. Bad outcome isn't abuse and neglect by definition."
Calling the influx of lawyers and prosecutors "the least beneficial for nursing home residents," Phillips said that they've done little to improve care despite the hundreds of millions in damages and defense costs that have been drained from the system.
"I went to a nursing home in Florida where a nearby billboard sponsored by plaintiff's attorney advertised: 'Do you have a loved one in this nursing home? Have they had any bed sores? Have they lost weight? Have they fallen? If so, call us.' That's not improving care, that's obscene," said Phillips.
Real reform, according to Phillips, will only come after physicians take a more active role in assuring good patient care. Important issues like level of staffing, training and improving communications with family members go unaddressed as facilities have to cope with an ever-increasing array of regulations, compliance requirements and legal entanglements.
That sentiment is shared by Russell S. Balisok, a Los Angeles plaintiff's attorney considered, after practicing in the field for nearly two decades, one of California's experts on elder abuse cases. Acknowledging that physician misfeasance or negligence is involved in a minority of the cases, he urged physicians to take a more active role in advocating for patients.
"Doctors see themselves as getting along and going along making orders and hoping for the best. The doctor should not only be interested in making orders, but in seeing that they're implemented," Balisok told GT. He encouraged physicians to be more clear in their charting about deficiencies in care they observe and in noting conversations with staff who seek improvement.
Despite thousands of doctors who spend a significant amount of their time in nursing homes, however, there are not enough of them to stem the health care crisis facing the frail elderly. "It is a big and horrible problem that no one can possibly feel good about," said Jonathan Evans, M.D., medical director of a hospice in Rochester, Minn., and AMDA's representative to the HCFA forum on abuse and neglect, in an interview with GT. "It's quite complicated because there are different stripes and colors of abuse and neglect, and it's not always so obvious."
Saying that physicians are generally absent from nursing homes, Evans added that even doctors who attend to nursing home residents tend to see them in their office rather than in the facility. "As a result, there isn't the opportunity, like in a hospital setting, to view all elements of patient care firsthand. Part of [the problem] is simply a lack of awareness."
According to American Medical Association officials, the public's frustration over nursing home conditions has caused legislators and regulators to turn to legal fixes that aren't going to work, rather than coming up with social remedies and medically based programs. "You can know as a physician what needs to be done, but if there are no resources, and no one to do it, then reform isn't going to happen," an AMA spokesperson told GT.