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Nursing home lobbyists write bills to restrict inspections, lawsuits against owners

Lexington Herald-Leader - 2/11/2019

Feb. 11--Lobbyists for Kentucky's nursing home industry have helped write two bills so far in the 2019 General Assembly that would place new restrictions on state inspections of nursing homes and on wrongful death and personal injury lawsuits filed against owners of the facilities.

House Bill 210, filed by House Majority Leader John "Bam" Carney, would require inspectors with the Kentucky Cabinet for Health and Family Services to let nursing home management attend their interviews with employees during inspections. Inspectors also would have to sign a newly crafted confidentiality agreement barring them -- at risk of losing their jobs -- from revealing information to anyone outside of the cabinet about what they witnessed during nursing home inspections.

The cabinet is reviewing Carney's bill and is not ready to comment on it, spokesman Doug Hogan said Monday. But a national expert on nursing home regulation said the bill "raises red flags."

Inspectors get valuable information from talking privately to employees who are willing to reveal problems like under-staffing and patient neglect, which is unlikely to happen if their boss is in the room, said Toby Edelman, senior policy attorney for the Center for Medicare Advocacy in Washington.

And inspectors sometimes feel obligated to publicly blow the whistle on serious issues they see at nursing homes that aren't being addressed by their regulatory agencies, an act that would violate the confidentiality agreement, Edelman said.

For example, in 2016, former Kentucky nursing home inspector Tony Cisney filed a whistle-blower lawsuit against the cabinet in Jefferson Circuit Court, alleging that his superiors ordered him to soften his enforcement of health and safety violations at several facilities. Cisney's case went to trial last fall, but he backed out of a settlement deal with the cabinet.

"To me, this bill sounds like it's trying to restrict what the surveyors can do in uncovering problems at facilities," Edelman said. "How is that an improvement? It's hard enough to be a surveyor as it is. They work nights and weekends, they have to travel all over the place, the pay isn't very good, and frankly, there is political pressure brought to bear on them by the facility owners and their friends."

The cabinet presently permits nursing home managers to attend inspectors' interviews with employees, but that is meant to be an "occasional" exception only allowed for employees who suffer from "extreme anxiety," according to a cabinet newsletter sent last November to Kentucky nursing homes. And that policy is being abused by some supervisors, the cabinet warned.

"We are often told in confidence that management has required staff to ask for them to be present during interviews with surveyors, sometimes at risk of losing their jobs if they don't comply," wrote Sandra Houchen, director of the cabinet's Division of Health Care, in the newsletter. "It should be noted that trying to obstruct the ability of survey staff to conduct private interviews as required by the survey process could be considered as impeding the survey process."

In an interview Monday, Carney said the language in question in his bill was crafted for him by the Kentucky Association of Health Care Facilities, the state's nursing home lobbying group and one of Frankfort's larger campaign donors.

The Kentucky Association of Health Care Facilities announced in its 2017 annual report that its members raised more than $170,000 in political donations for state Senate and House races, and it "successfully fought to oppose all legislation that negatively affected long-term care," including a bill that would have cracked down on bedsores.

Carney, R-Campbellsville, said his bill originally was meant to have a much narrower focus. He wanted to allow nursing home residents diagnosed with dementia or Alzheimer's the right to refuse an interview with state inspectors unless they could be joined by their legal representatives who held either power of attorney or health care surrogacy. That section remains in the final bill.

Reviewing Carney's original provision on Friday, Edelman said all residents already have the right to refuse to speak with inspectors, so this "doesn't add any new protection for residents."

Carney said he became interested in inspections last year because of a local controversy in his district, when the state moved to close The Grandview, an 81-bed nursing home in Campbellsville, for failing to meet health and safety regulations. Carney said the facility had some problems, but it was working to fix them, and until recently, it had enjoyed a good reputation.

"Some of us felt like there were personality conflicts and that sort of thing with the survey teams," Carney said. "I know there are nursing homes out there that have had issues. But we want due process for both sides."

Carney said he was contacted by Bruce Linder of the Kentucky Association of Health Care Facilities with ideas that could be added to his bill, including the confidentiality agreement and management's right to attend interviews. Linder, the group's executive vice president, handles its political action committee and oversees campaign donations.

"The association wanted that," Carney said. "That's certainly something I'm willing to talk about if it turns out people have a problem with it."

Betsy Johnson, president of the Kentucky Association of Health Care Facilities, said the language her group provided Carney is proper. One concern her group has with inspectors' interviews is that employees sometimes are asked "more clinical-type questions" that they don't fully understand, so "I think there should be a witness in those types of interviews," she said.

"As an employer, I think that's the right of an employee, to ask for their management," Johnson said. "There's nothing in federal or state law that prohibits that, so I don't see what the question is."

As for the confidentiality agreement, that mirrors existing federal law prohibiting inspectors from revealing to others outside their agencies privileged information from the job, Johnson said.

"State surveyors should not be out in their communities talking about their surveys," Johnson said.

Carney's bill has been assigned to the House Health and Family Services Committee.

Another measure, House Bill 289, filed by Rep. Steve Riley, would shield "passive investors" in nursing homes from personal injury and wrongful death lawsuits. The bill defines passive investors as owners of nursing homes who do not make daily management decisions about how the facility is operated.

It's not unusual for corporate-run nursing homes to have a half-dozen or more owners collecting revenue from their operations, with one management company identified for the record. Families suing a nursing home often have to go hunting as assets are shifted from one company to another, said Lexington attorney Christopher Goode, who represents nursing home residents and their relatives.

"It's essentially a shell game," Goode said.

Riley, R-Glasgow, did not return calls Monday seeking comment. But Johnson acknowledged that her group helped write this bill, too. Passive investors are unfairly snagged in the "blind net" thrown by trial attorneys looking for whomever has "deep pockets," she said.

"Don't you think we should be suing the people who actually have decision-making authority over skilled nursing facilities and hold those people accountable?" Johnson asked.

Riley's bill has not yet been assigned to a committee.

The Herald-Leader reported last October that 43 percent of Kentucky's 284 nursing homes were rated as "below average" or "much below average" by the U.S. Centers for Medicare and Medicaid Services because of serious problems discovered with the quality of care they provide their roughly 12,500 residents, according to the newspaper's analysis of federal data.

That's among the worst collective ratings for nursing homes in the country.


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