State prods nursing homes over care with soaring fines
The Pennsylvania Health Department doubled its fines against nursing homes to $2.3 million in 2018, an amount that also was more than 10 times as much as it levied just three years earlier, according to the state’s records.
Last year’s fine tally, which came from violations found on 165 different inspections, represents an effort by the state to help motivate Pennsylvania’s 702 nursing homes to avoid deficient care, Health Secretary Rachel Levine suggested.
“We want our civil penalties to be meaningful but not punitive,” Dr. Levine said in an interview. “It’s one thing that can induce change. We want them to be meaningful to ensure safety and quality of care.”
In 2017, the state issued 100 fines totaling about $1.1 million, which also was far higher than in prior years. The two-year increase in both the number and size of fines, which averaged in excess of $14,000 last year, followed several years of public
criticism that enforcement of nursing home quality had been too lax, a contention acknowledged by department officials.
Enforcement actions had gone particularly dormant during the administration of prior Gov. Tom Corbett, whose four-year tenure included 2012, when not a single fine was issued. The penalties grew throughout the first term of Gov. Tom Wolf in 2015-18.
Local nursing homes largely avoided sanctions last year, with just four of 62 in Allegheny County being penalized. Those facilities and fines, as reported on the Health Department’s website, were: Manorcare Health Services-Shadyside, $15,000; Longwood at Oakmont, $13,250; Monroeville Rehabilitation and Wellness Center, $7,000; and UPMC Heritage Place, $5,931.90.
Both the nursing home industry and consumer advocates monitor the state’s enforcement actions, and, as expected, they had contrasting reactions to last year’s penalty levels.
“The question should be asked whether more stringent penalties actually improve care, and does the department have evidence that issuing sanctions and monetary penalties results in improved quality in nursing homes, or is it just increasing burdens for an already struggling sector?” said Pete Tartline, chief operating officer of the Pennsylvania Health Care Association, which represents for-profit nursing homes.
The uptick in fines was applauded by Sam Brooks, a Philadelphia-based Community Legal Services attorney who agreed in 2016 with a state auditor general’s report contending such penalties had been under-utilized.
“I think they’re taking a more aggressive stance now against nursing homes,” Mr. Brooks said.
Auditor General Eugene DePasquale has said a new review will be released this year with an updated assessment of the department’s enforcement actions.
Anne Henry, chief government affairs officer for LeadingAge PA, with nonprofit facilities as members, said the state took an unusually long time to assess fines last year — sometimes many months or even more than a year after a nursing home inspection — and its decision-making is puzzling to operators.
“We continue to have a lack of understanding on how they calculate their fines,” she said. “We certainly would love to understand that. We would also love to understand, if they’re current now, are they going to put some internal time frames in place so we don’t see a facility receiving a state fine a year or longer after a survey.”
Dr. Levine acknowledged that some procedural changes created a lag in actions in 2018, and public notifications of penalties also have been delayed by a new policy not to post fines on the Health Department website until the appeals process allowed to a nursing home has been completed.
She said the department in some cases has begun calculating fines on a per-day rather than per-incident basis, which has driven penalties higher. In making decisions, it also takes into account what kind of potential harm was created by a violation, how many residents could have been affected, whether the problems are repeated violations and other factors.
“The priority is not the fine; the priority is to make sure the problem is corrected,” Dr. Levine said.
The department in 2018 significantly reduced its use of a second type of enforcement action: provisional licenses, which are intended to bring a nursing home under closer watch by the state as well as alert the public to problems at the facility. The provisional licenses last six months instead of the standard annual license, cutting in half the time frame between comprehensive inspections.
After issuing 38 provisional licenses in 2016 and 33 in 2017, which were both substantial increases over prior years, the Health Department utilized them only three times in 2018. Dr. Levine had no immediate explanation for the reduction in an interview last week.
Department spokeswoman April Hutcheson said in a follow-up conversation that various factors determine the need for a provisional license, and that the state had set no policy to reduce them. Provisional licenses are used most frequently with facilities that have serious problems, she said — particularly repeated problems — as a licensing downgrade can be the first step to a nursing home losing its license altogether, which is a rare occurrence.
“There’s no magic formula,” Ms. Hutcheson said, for determining when a provisional license should be used instead of or in combination with a fine. “We’re looking at each case and trend within each nursing home. We’re not benchmarking nursing homes in general, saying we should have X number” of provisional licenses or fines statewide.
Some view provisional licensure as a more severe penalty than a fine and would like to see them utilized more.
“To a lot of companies, [a fine] is the cost of doing business, even though they’re higher than what Pennsylvania has invoked before,” said Diane Menio, executive director of the Center for Advocacy for Rights & Interests of the Elderly. “But if there’s a license hanging on the wall that says provisional, that hurts them. To a family member or visitor coming in, it means something.”
At the same time, both consumer advocates and industry leaders are awaiting the Wolf administration’s proposal this year for the state’s first substantial update of nursing home regulations in two decades. Dr. Levine expects a draft of the new regulations to be sent to the governor’s office in the spring and released for public comment over the summer.
She said the regulations will cover many issues beyond enforcement penalties — such as staffing levels — that affect quality of care. The nature of nursing homes and their populations has changed dramatically in this century, she and industry representatives noted. The long-term patients they care for are generally in far worse health than residents of the past, because those with moderate rather than severe health issues frequently can access home care options.
“Just bringing some rationality to the regulations would be one thing we’re looking for,” Mr. Tartline, the nursing home association executive, said. “Our facilities are more like hospitals today than when the regulations were first implemented.”