State health department mum on program it claims will improve nursing homes
Oct 29, 2018
It’s been more than two years since the state Department of Health was told by the state comptroller's office to get tougher on nursing homes that consistently and repeatedly fail at its most basic task — to protect the health and well-being of their residents.
Exactly what the Department of Health has done since then, is a mystery.
The Democrat and Chronicle filed a Freedom of Information Law request into the DOH's Performance Monitoring Program in May. The program apparently started in response to a recommendation by the Office of the State Comptroller that the health department consider assessing fines for certain classes of deficiencies found during inspections. The comptroller said this should be considered "especially for those facilities that demonstrate a pattern of repetitive citations."
The Department of Health denied the FOIL request in September, and denied the appeal in October. The state also denied a FOIL request by Elder Justice, which is part of Metro Justice and advocates for residents in nursing homes.
The department also denied the Democrat and Chronicle’s appeal, changing the wording on the initial request to interpret that the request was a series of questions. In the denial, Record Access Appeals Officer David J. Spellman said FOIL “is not a vehicle for submitting questions.”
I reworded the FOIL and sent it back to the health department. Government entities have five business days to acknowledge it received at FOIL request and 20 business days to respond. I know the DOH has the new request. Considering it took five months and three days for the first one to reach its conclusion, any information from this one will take at least that long.
In early 2016, my colleague Sean Lahman and I looked at the number of repeat deficiencies at the 34 nursing homes in Monroe County. Our analysis found that more than one-third of violations cited by state health inspectors were for regulations that had been cited before.
A follow-up analysis showed that violations in five categories accounted for about 30 percent of deficiencies at homes in Monroe County.
So what is the Performance Monitoring Program and why is it important?
Good questions. As soon as the Department of Health tells me, I’ll tell you.
Solutions for repeat problems This whole thing started in February 2016, when the Office of the State Comptroller chastised the health department for the way it dealt with a home where inspectors found repeat violations.
The report “Nursing Home Surveillance” analyzed deficiencies cited between January 2007 and May 2015 and named then-Westgate (now Creekview Nursing and Rehabilitation Center) in Gates as having the most citations of any active facility. It tracked deficiencies over time and used Westgate as an example of how, despite repeated problems, the nursing home had not been fined.
The comptroller’s report said that inefficiencies prevent the Department of Health from assessing fines in a timely manner and that DOH chooses not to levy fines in more than 80 percent of violations it cites. Among its four recommendations, the report suggested DOH use fines particularly for homes with repeat problems.
Two months after the report, the DOH’s Division of Nursing Homes and Intermediate Care Facilities for Individuals with Intellectual Disabilities Surveillance met to discuss fines for citations that were at a level of greater than minimal harm.
However, “during this meeting, Division officials decided against issuing fines for these citations and instead implemented the Performance Monitoring Program,” according to an audit of what DOH did with each recommendation. The audit was sent as a letter to DOH Commissioner Dr. Howard Zucker, who appears to have provided information for the audit.
It appears DOH provided some general statements. The program is used to conduct greater oversight of nursing homes where conditions affect the rights, quality of life, or the health and safety of residents.
The goals are:
Increase program oversight over nursing homes with performance concerns throughout the State and across the Division. Improved the likelihood of successful and sustained nursing home correction action implementation, thereby reducing the volume and frequency of repeat deficiencies. Identify and share regional office best practices. This audit of the recommendations was sketchy on details.
According to the division officials, 16 nursing homes had been placed in the program from its start, which you can assume is April 2016 because that’s when DOH officials met to discuss the fines, to the March 8, 2018 date of the letter to Zucker. Of the homes in the program, 10 “implemented corrective actions and were removed from the program.”
The state also apparently increased the amount of fines until April 1, 2020, but there was no mention of which homes were hit with the penalties.
No questions allowed
My FOIL request listed 11 items, including the date when the program started, names and dates of the homes involved, guidelines and regulations for the program, what landed the home in the program and what it had to do to graduate; fines levied and paid, and other actions taken against the homes.
In denying my first FOIL request, the Department of Health said it had no records of any letters sent to nursing home administrators to tell them of the performance monitoring program. It then withheld the guidelines and regulations of the program, claiming they were protected under law.
The DOH then denied the other nine items by saying they were all questions, which are not covered under FOIL, and rewriting my original document to back up that assertion.
Robert Freeman, executive director of the Committee on Open Government, guides journalists and others in the public who seek government records.
"The Freedom of Information Law, in my opinion, is intended to make life easy, not difficult," he said. "From my perspective, when a government agency in its heart knows the nature of the record being requested, there should be no necessity that the person seeking the record use magic words or identify specifically the nature of the record sought. FOIL requires that the applicant must reasonably describe the records, so when an agency knows ... which records have been requested, it should not split legal hairs as a means of delaying a substantive response."
You can go to non-profit advocacy groups such as the Long Term Care Community Coalition and find out about nursing homes. To go closer to the source, you can check the Centers for Medicare & Medicaid Services. The state enforces those regulations, and as it should, has its own site with plenty of nursing home information.
But apparently, only what it wants you to see.
I find it interesting when regulatory agencies boast of their “oversight” responsibility. Do they mean careful and vigilant supervision? Or do they mean they forgot to do something or left something out? Which definition fits what the DOH is doing when it comes to the Performance Monitoring Program?