Nursing Home Enforcement by United States Attorneys: What Happened to the Regulatory System?

Two recent cases – one in Georgia and the other in Pennsylvania – enforce nursing home quality of care standards through actions by United States Attorneys.   In neither case had the regulatory agencies cited deficiencies for the significant care problems at the three facilities in question.   In addition, two of the three facilities have high ratings on the "Five-Star Quality Rating System" of the Centers for Medicare & Medicaid Services (CMS).[1]

Georgia Settlement

Settling False Claims Act allegations in a lawsuit originally filed by a physician whistleblower in 2010,[2] the U.S. Attorney's Office in Atlanta announced on January 2, 2013 that the Federal Government and the State of Georgia had settled federal and state False Claims Act claims against GGNSC Holdings, LLC of Plano, Texas, the operator of nursing facilities in the Atlanta, Georgia area under the Golden Living name.[3]  The case involves what the U.S. Attorney describes as "inadequate and worthless wound care services to residents" at two Golden Living facilities between January 1, 2006 and May 31, 2011.  Under the settlement, GGNSC will pay a total of $613,300.  The United States will receive $423,544, the state of Georgia, $189,756, plus (according to Golden Living's Press Release discussed below) "interest and legal fees."

In addition, a Corporate Integrity Agreement signed between the Office of Inspector General, U.S. Department of Health and Human Services and GGNSC requires six GGNSC's facilities in the Atlanta area "to continue to implement certain policies and procedures to ensure compliance with applicable statutes and regulations governing patient care."[4]  The U.S. Attorney's News Release reports that an independent monitor will also oversee operations at the six Atlanta-area Golden Living facilities "for up to five years to verify that the policies and procedures are working effectively and that patients receive appropriate care."

In a press release issued January 2, 2013, Golden Living "steadfastly denies that patients were harmed as claimed in various of these untested allegations, or that the services it furnished were without value to its patients."[5]   Golden Living President and CEO Neil Kurtz said, "'Golden Living agreed to the settlement not to dignify these baseless charges, but because we would rather spend the money on our patient care and staff than on the legal fees necessary each month simply to respond to the government's actions in the investigation.'"  He also said "'the appropriateness of our patient treatments and services has been validated in multiple surveys by state and federal agencies, and is reflected in the CMS Five-Star Quality Ratings received by our Atlanta-area Living Centers.'"

Both facilities score relatively well on Nursing Home Compare. As of January 3, one facility named in the False Claims Act lawsuit received three stars, the other facility received four stars.

The three-star facility received a wound care deficiency as a result of complaint investigations on both May 3, 2011 and September 24, 2009, but the deficiency was cited as "no harm" in both surveys.  Nursing Home Compare indicates that the facility was not sanctioned with either of two federal sanctions – a civil money penalty or denial of payment for new admissions – in the prior three years.  The other facility did not receive a wound care deficiency.

Pennsylvania Settlement

Three years after quitting his job to take care of his wife, Barry Vernick thought he could no longer safely care for her at home.  He placed her at the nursing home at Cathedral Village, a continuing care retirement community in Philadelphia.  On November 17, 2008, her first night in the facility, Mrs. Vernick injured her back in a fall.  On November 28, she was transferred to the hospital.  Mrs. Vernick was sent home under hospice care and died at home on December 12, less than a month after she had gone to the nursing facility.  On April 27, 2009, in response to a complaint filed by Mr. Vernick, the state health department found no regulatory noncompliance at the nursing facility.  The Center for Advocacy for the Rights and Interests of the Elderly (CARIE), a resident advocacy group based in Philadelphia referred the complaint to the U.S. Attorney for the Eastern District of Pennsylvania.  In November 2012, Cathedral Village entered a settlement agreement with the U.S. Attorney's Office.[6]

The November 2012 settlement, among other provisions, requires Cathedral Village to:

1. Maintain and enforce, facility-wide, a recently revised Code of Conduct and Corporate Compliance Program.
2. Maintain and enforce at Bishop White Lodge, for at least three years, revised policies and procedures on: (a) medical documentation; (b) fall risk assessment, prevention, and monitoring; (c) post-fall assessment, investigation, evaluation, reporting, and recovery; (d) wound care; € restraints; (f) quality assurance; (g) internal communications; (h) hydration; (i) nutrition; and (j) recreation.
3. Provide Dementia Unit employees with both annual competency-based training (including on areas that are set forth in the revised policies and procedures) and dementia-focused training by a professional with expertise in dementia.
4. Create a $45,000.00 Quality of Life Fund that must be spent on quality-of-care enhancements other than those budgeted for in the ordinary course of business.
5. Require Cathedral Village's Director of Nursing and Nurse Managers to be professionally certified in Gerontological Nursing.
6. Maintain – and require that Cathedral Village's Medical Director perform duties consistently with – an updated Medical Director position description that is modeled on recent American Medical Directors Association standards.
7. For three years, have a corporate compliance consultant perform reviews of – and report to the United States and Cathedral Village on – Cathedral Village's performance under the parties' agreement.[7]

As of December 28, 2012, the facility received five stars in CMS's Rating System, the highest rating possible. 

Discussion

In the Georgia False Claims Act case, only one of the two facilities was cited with a wound care deficiency during the time period covered by the case and CMS and the state viewed the deficiency as not causing harm to residents.  In the Pennsylvania case, no deficiency was cited at all as a result of Mr. Vernick's complaint about the care his wife received during her 11 days at the nursing facility.  The regulatory system found no problems worth citing or sanctioning.  Yet in both cases, the U.S. Attorneys had sufficient concerns that they entered agreements with the facilities to improve care in the facilities.  In the Georgia case, the United States intervened in the whistleblower's case, a generally unusual action by the Government.

Conclusion

These cases suggest that the regulatory system is quite seriously failing to adequately enforce federal standards of care and is overlooking significant problems in quality of care.  In the absence of an effective regulatory system, the United States Attorneys are stepping in to fill the void.