Maryland Nursing Home Patients at RiskOctober 10, 2016 |
by Morgan Eichensehr, Associated Press
BALTIMORE — In December, a 59-year-old woman who cannot speak after throat cancer surgery was left outside of a Baltimore homeless center with no money and no phone — in a city where she had no family and no close friends.
Vonda Wagner of Rowlesburg, West Virginia, had fallen into a black hole in the regulatory system designed to protect nursing home patients.
She wound up alone on the streets on a Saturday night due to multiple failures in Maryland’s nursing home system. The NMS Healthcare nursing facility in Hagerstown, Maryland, ordered Wagner to leave on Nov. 11 because her temporary Medicare benefits expired, according to Wagner’s medical records.
NMS sent Wagner to what regulators have identified as an unlicensed assisted-living facility in West Baltimore called Isaac Supportive Living Service LLC. The owner, Sharon Isaac, faces second-degree assault and theft charges in Baltimore Circuit Court following an altercation with Wagner, who accused Isaac of pushing her to the floor and attempting to choke her.
The West Virginia woman filed a restraining order in Baltimore District Court against Isaac that accused her of taking her bank card and cellphone and leaving Wagner on the sidewalk in front of an Our Daily Bread Employment Center in the shadow of an elevated expressway in downtown Baltimore.
“I felt like I was kidnapped,” Wagner said. During interviews, Wagner wrote her answers in longhand on a legal pad, since she was unable to speak.
Wagner’s case is an example of a long-standing problem within the nursing care system in Maryland, according to Anne Hurley, a former Maryland Legal Aid attorney involved in Wagner’s case. Nursing homes are required to discharge patients to facilities deemed safe and secure, a term that is vague, she said.
The system deals with sick patients, many of whom have problems paying for their care. In addition, the nursing homes see a financial incentive in discharging patients who cannot pay or are on Medicaid. And patients who are discharged may find themselves in an unregulated underworld of group homes and unlicensed assisted-living facilities.
“Our experience is a lot of people that end up in this situation are people who are already without a lot of support and are already in a very desperate situation,” Hurley said.
Hurley said group homes, which do not provide daily care to their residents, do not require licensing in Maryland. Assisted-living facilities, on the other hand, provide care for residents in need of daily help or medical assistance.
Some of these assisted living facilities, Hurley said, have continued to operate though the state has cited them for failure to have a license. This presents a problem regarding the oversight and regulations under which licensed assisted-living facilities are supposed to function, Hurley said.
“When you’re not licensed, you’re not on anyone’s radar,” Hurley said.
The Wagner case and a separate assault and theft case involving Andrew Edwards, a 30-year-old man from Bunker Hill, West Virginia, led police and the state’s attorney’s office to investigate Isaac.
And in a separate complaint investigation in March, the Maryland Office of Health Care Quality examined one of two facilities Isaac runs, the Isaac Supportive Living Service LLC at 1010 Walnut Ave. in West Baltimore. The agency investigated “allegations of poor quality of care for residents in an unlicensed assisted-living facility.”
Isaac faced a potential $10,000 penalty if she failed to either obtain an assisted-living license or shut down the facility within 30 days of the original investigation report. The Office of Health Care Quality reported it was “still reviewing the matter” and as of April 25, a follow-up survey revealed four residents were still living at the two-story white house.
She denied the charges brought by Wagner and Edwards. Isaac said “an assault never happened.”
“I just don’t have any understanding of how somebody would make an accusation about me,” she said in an interview with Capital News Service. She spoke in a February interview while awaiting a hearing on second-degree assault and theft charges against Wagner; trial on that case is scheduled for Oct. 13 in Baltimore Circuit Court. Isaac said she and her assisted-living facility are known in the nursing care community.
“I network with everybody,” Isaac said. “And everybody — Hagerstown, University of Maryland, Mercy Hospital — they all contact me. Everybody, when they’re looking for placement, they give me a call. You know, I run a good business. And I treat people like I’d want somebody to treat me. That’s what it’s about.”
NMS Healthcare’s chief operating officer, Mark Yost, said he felt “horrible” about what happened to Wagner and Edwards.
“It’s very unfortunate what happened to both these individuals,” Yost said in an interview. “But it’s not something we could have controlled. We can only control what happens in our facilities.” Yost said he could not comment on the specifics of the Wagner or Edwards cases due to patient privacy laws.
When NMS Healthcare was notified of the Wagner and Edwards cases against Isaac, the company stopped sending any more patients to her business, Yost said.
Isaac’s case is working through a regulatory and legal system hampered by outdated laws and overworked employees. The Office of Health Care Quality, the primary regulator for 15,043 nursing homes and health care facilities in Maryland, is struggling to maintain staffing. A state legislative budget review blamed heavy workload as one reason for the vacancies. About one in every five Office of Health Care Quality positions were unfilled by the end of 2015— nearly a doubling of vacancies from the previous year, according to a state legislative budget review.
The state legislative review also noted that its staffing problems were a hindrance to proper-assisted living facility oversight, as the agency “has faced chronic staffing shortages” in recent years according to a 2017 budget analysis. In addition, Hurley added that regulations meant to ensure patients are safely and securely discharged can be vague, making it difficult to enforce them.
Dr. Tricia Nay, executive director of the Office of Health Care Quality, declined an interview request to discuss staffing or the issues raised with the Wagner case.
Christopher Garrett, communications director for the Maryland Department of Health and Mental Hygiene, said in an email the “OHCQ has made significant progress in gaining regulatory efficiency and effectiveness, in the past three years.” He added the agency “remains committed to performing the required surveys to hold providers accountable for maintaining appropriate levels of care to Marylanders.”
These challenges in the long-term care system won’t go away overnight as nursing homes see a rise in aging baby boomers demanding long-term medical care.
According to the Centers for Disease Control and Prevention, there were about 1.4 million residents in nursing homes in 2014. Kaiser Health News reported the number of nursing homes decreased by nearly 9 percent from 2000 to 2009.
CONTEXTUALIZING THE PROBLEM
Wagner’s case illustrates systemic tensions and a rising trend of contested nursing home discharges statewide. The Maryland Office of Administrative Hearings reported 1,048 requests for hearings involving nursing home discharges between 2010 and 2015. In the 2010 fiscal year, 163 patients requested hearings about their discharge notices, whereas 242 patients sought hearings in the 2015 fiscal year, according to Office of Administrative Hearings data.
Eileen Bennett, long-term care ombudsman program director in Montgomery County said only two skilled nursing homes in her county send noticeably frequent discharge notices. Both are managed by NMS.
Bennett works as an advocate for county residents in the elderly care system. Every time a skilled nursing facility issues a notice of discharge for a resident, she receives a copy of the notice. Between July and December 2015, she received 161 notices of involuntary discharge from NMS Silver Spring and NMS Springbrook. She received only 71 of these notices from the 32 other county nursing homes for the entire calendar year.
“That gives you a sense as to the business practice being very different for that chain than all of the other nursing homes that operate in Montgomery County,” Bennett said.
Medicare, which provides health insurance for people age 65 and older, covers nursing home stays generally for 100 days. Most homes in her county work with residents to find payment solutions after their 100-day Medicare periods expire, rather than hastily discharge them, Bennett said. But in a majority of cases, she said, NMS chooses the latter plan of action.
“What the Office of Health Care Quality has shared with us is that it’s not illegal to do things the way that they do them,” she said. “We do hear and understand that this is common practice (at NMS facilities), and NMS has told us that straight-up: ‘This is our business practice, and we’re not going to change it.’“
Yost, the NMS chief operating officer, said the company’s discharge practices are proper.
“I know we tend to be a little more aggressive than other nursing homes with the discharge statements,” Yost said. “We do it to protect our facilities,” he added, as NMS needs to pay its employees and cannot have patients there who are not paying.
Yost said NMS discharges patients mostly for financial reasons — when a patient does not have sufficient income to pay or their temporary coverage lapses.
Yost said NMS tends to take on unhealthier and less affluent patients whom other nursing homes don’t, so problems are bound to arise. But, he said, the company follows regulations – including those involving discharges — “to the T” — and does its best to ensure safe discharges.
“We can’t just evict someone,” he said. “We have to have a safe location to discharge them to.”
An interdisciplinary team including the social worker, the administrator, usually a nurse unit manager and the attending physician will look at the discharge options and evaluate what’s appropriate for a particular patient, he said.
“We promote an incredible amount of resources, and more than any nursing home I’ve ever been involved in,” he said. “We just believe strongly in rehab.”
Yost said the hope is that people who come into NMS for temporary care under Medicare can be rehabilitated and return home without the need for ongoing care.
The Wagner case, however, raised questions about NMS’s decisions when discharging patients. Despite Wagner’s partial paralysis and need for medical assistance when moving around, she ended up in an assisted-living home with limited space and multiple floors, which were only accessible by stairs. Hurley said this was one of the aspects of her case that pointed to an inappropriate discharge.
ANOTHER EXAMPLE OF DISCHARGE-GONE-WRONG
Combine the business strategy of companies like NMS with the weaknesses and blind spots in the regulatory system, Hurley said, and the results can be tragic.
Andrew Edwards, 30, was a patient at NMS Healthcare in Hagerstown for several months until he said he was discharged involuntarily on Jan. 13.
Like Wagner, he was receiving physical therapy and treatment for ongoing medical conditions including partial paralysis in his legs due to complications from past kidney failure. In an interview, Edwards said he has been attending weekly dialysis treatments since he was 17.
Also like Wagner, Edwards said he was sent by NMS to a home run by Isaac. He ran into problems immediately: Edwards said Isaac neglected to take him to a dialysis treatment. They got into an argument, and Edwards said Isaac assaulted him.
“As I was confronting her about everything . I was sitting on the couch with my walker, I had my legs propped up on it, and she became irate at the confrontation and she kicked my walker from underneath of me,” Edwards said. “My legs – they don’t bend at all – my legs dropped to the floor pretty severely, caused a lot of pain.”
According to court records, Isaac is charged with theft for making $860 worth of unauthorized charges on Edwards’ debit card. In an interview, Edwards said some of the unauthorized purchases included $115.18 at Sam’s Club, $10.59 at McDonald’s and $23.00 at Rainbow Car Wash.
Isaac dropped Edwards off at an emergency room in Baltimore on Jan. 14, he said. Missing a single dialysis treatment meant Edwards had to stay in St. Agnes Hospital for about two weeks to be treated for high potassium. “Just one day can do a lot of harm,” Edwards said. Yost said he could not comment on the Edwards case due to patient privacy issues.
Isaac faces charges of second-degree assault and theft of less than $1,000. Her case is scheduled to be heard on Oct. 13 in Baltimore Circuit Court. Isaac denied knowledge of the charges when interviewed in February. She has declined to comment since then.
“I don’t have anything to do with” the assault, Isaac said. She said the dialysis issue was a separate dispute that didn’t involve her. Isaac has declined comment since the February interview.
NMS’ handling of the Edwards discharge still distresses Joanne Davenport, Edwards’ mother. They appealed NMS’ notice to discharge Edwards in November, Davenport recalled. She was trying to work with NMS so Edwards could receive Medicaid, stay in the nursing home, and continue with his rehab. Davenport thought they were making progress, so she cancelled her appeal of the discharge. She continued to email paperwork with the NMS business office for Medicaid coverage until January 8, when she said NMS made an abrupt turn. “And then, all of a sudden, he’s being discharged,” Davenport said.
REGULATORY BLACK HOLES
Hurley and other patient advocates view it differently. They assert the nursing homes are obligated to discharge patients to a safe place, and some nursing homes in the state comply with these rules more than others.
Others, Hurley said, have discharged patients to unlicensed group homes, like in Wagner’s case, or homeless shelters.
“All nursing homes, public or privately owned . have to follow the same discharge rules,” Hurley said. “Even if they don’t request (an appeal or mediation), there’s still the ongoing obligation of every nursing facility to discharge a person to a safe and secure environment.”
Nursing home patients may not be aware of their rights in some cases. For a nursing home patient to be discharged, the nursing home must issue a 30-day notice to the patient, who has the option to request an appeal or mediation and hearing.
Maryland regulations include five acceptable reasons for involuntary discharge or transfer from a nursing home, including if the patient’s health has improved to the point of not needing ongoing care, or if the patient fails “after reasonable and appropriate notice,” to pay.
For the public, gathering information on the discharge process is difficult. Gwen Winston, a quality improvement coordinator at the Office of Health Care Quality, said her organization doesn’t maintain data on discharges.
If her agency identifies discharge problems in a nursing home inspection, they are noted in a “statement of deficiency” provided to the facility, she said. These are complex regulatory documents that can be shared with the public with some redactions.
A nursing home may have difficulty discharging a patient to an appropriate facility, Hurley added. “So what ends up happening is, if they try many different places and they can’t find a placement, many times they end up getting frustrated and so they go to these particular assisted-living facilities that are not licensed,” Hurley said.
Hurley said many people who end up like Wagner or Edwards may lack a support system from family or friends. Others are vulnerable, suffering from chronic behavioral health issues, severe mental illness, or substance abuse. And some people just wind up in the wrong hands, Hurley said: “And I think there is a level of people treating them like they’re not worthy of the same treatment as other human beings.”