Penalties at Play: Millions of dollars flow to nursing homes from fines they have paid for poor care

But much of the money – an estimated $400 million – is not being directed to help nursing homes cope with COVID-19
Published: Oct. 28, 2020 at 3:20 PM CDT|Updated: Oct. 28, 2020 at 7:20 PM CDT
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(InvestigateTV) - States are sitting on millions of dollars that could provide testing, PPE, and staff to nursing homes battling the aggressive coronavirus pandemic.

But the federal government has been unwilling to unlock most of the $400 million stockpiled in states' Civil Money Penalty funds.

Advocates, families of residents and the national association that represents nursing homes say now is the time for the Centers for Medicare and Medicaid Services to direct those funds to combat a once-in-a-lifetime pandemic.

The money dispensed as grants “to support activities that benefit nursing home residents and that protect or improve their quality of care or quality of life,” according to CMS.

But an InvestigateTV analysis of grants awarded in 2019 show that some of the funded projects do not address the most serious issues facing nursing homes: curbing infection-related problems, residents' falls and accidents, and abuse and neglect.

Rather, CMS last year approved grants to nursing homes to buy an antique popcorn machine, create song playlists for residents and build gardens.

“It’s ridiculous,” said Brian Lee, executive director of Families for Better Care, which advocates for nursing home residents. “This is the time these funds should be unlocked.”

The American Health Care Association, which represents nearly every nursing home in the country, agrees.

The group said it plans on using InvestigateTV’s analysis to persuade CMS to change course.

“In our view, the funds should be utilized to improve patient care,” said Mark Parkinson, ACHA’s president and chief executive officer. “We could make a big difference with this.”

Every year millions of dollars flow to nursing homes from the fund that is built from fines collected from long-term care facilities that have put the health and safety of residents in jeopardy.

The federal government collects the fines then allocates them to states to use as grants to nonprofit groups, universities and nursing homes.

In 2019, CMS approved more than $89.5 million in funding to nearly 300 entities, according to an InvestigateTV analysis of its 2019 State CMP Reinvestment Projects report. Some of the projects have been receiving grant funds for two, three or four years.

Nearly three dozen of the 2019 grants were awarded to individual nursing homes that themselves had paid into the CMP fund in the past three years because of serious violations that put residents in harm’s way.

Today, in the midst of a pandemic, nursing homes are struggling to keep the coronavirus at bay. COVID-19 has claimed nearly 60,00 nursing home residents.

Thousands of nursing homes report that they have staff shortages. Hundreds say they don’t have enough personal protective equipment such as masks and gowns or the ability to test residents.

The estimated $400 million of CMP money in state coffers could help shore up problems exposed by COVID-19 – lack testing and PPE, advocates for nursing home residents say. CMS policy does not allow the fund to be used to pay for staffing.

But CMS is allowing nursing homes to tap into their state fund for a maximum of $6,000 to buy iPads and to purchase materials to make protective visitation barriers.

In January, the state of South Carolina had enough money in its fund to award nearly $87,000 to every nursing home in the state. West Virginia could have doled out more than $81,000. Even Texas, which has the most nursing homes in the country, had enough to give more than $20,000 to each facility.

“There’s no better use and no better time to use CMP funds,” said Cissy Sanders whose mother resides in an Austin, Texas nursing home that has been ravaged by COVID-19.

Grants don’t address the biggest problems facing nursing homes

Brian Lee became a critic of the CMP program about 15 years ago during his tenure as Florida’s state ombudsman, which serves as a government watchdog over nursing homes and advocates for residents.

He noticed that a nursing home that had been fined hundreds of thousands of dollars received a $27,000 grant to buy a bread-making machine, to build a snack stand and to train staff on how to stock the shelves.

He visited the nursing home to see exactly how the money was spent.

“I expected the aroma of fresh-baked bread to greet me when I walked in the door. I got the exact opposite,” he said. “I was immediately bowled over by the smell of urine and feces.”

He has since regarded the CMP fund as nothing more than a “slush fund” for nursing homes.

“This is money that was collected because people suffered, (were) abused, neglected and even died,” he said. “This is kind of blood money.”

Of the 294 projects given the green light last year, more than a third were aimed at “training,” according to InvestigateTV’s analysis of the grants.

The federal government approved nearly $35 million in CMP spending for these initiatives. Some of the projects were designed to help nursing homes come into compliance with CMS requirements such as a $2 million grant in Kentucky where all nursing homes in the state were to learn new emergency preparedness procedures.

“The grant was particularly important to protect nursing home residents in a state that ranks in the top 10 of presidential disaster emergency declarations,” said Betty Shiels, director of the LTC2 Program at the Kent School of Social Work at the University of Louisville.

She said that securing grants is a lengthy process that must include, among other things, proof of a gap and justification for the need.

CMS also granted $726,000 to Ohio State University to train several hundred nursing home staff members and volunteers in the state on how to create “LifeBio Story Booklets,” where residents document their life history, notable events, hobbies and more.

OSU officials said in a report that the pilot program has been a success.

“The LifeBio program is an emerging best practice developed in Ohio to improve the quality of care for nursing facility residents. LifeBio creates personal life histories for vulnerable older adults so that the staff that cares for them have in-depth background information to help with the provision of their care. Recent evidence suggests that “life story work” can enhance PCC for older adults, including those with dementia, by enabling those providing care to have a holistic view, and see the resident truly as a person and not just a resident,” the OSU report says.

The fund also paid $1,400 to the University of Louisville to rent a meeting room at the school for required nursing home staff training.

“The goal of this fund is to improve the quality of care, life and safety of residents,” Lee said.

Many of the projects fail that standard, he said.

For years, no issue has plagued nursing homes more than problems relating to preventing and controlling infections. It is the most cited deficiency.

Yet only 17 grants approved last year were aimed at improving infection-related problems. Only six involved preventing falls.

Shiels, of the University of Louisville, said nursing homes are receiving an infusion of cash through other federal agencies through the CARES Act to address infection control.

Mountain Manor of Paintsville in Kentucky has been cited for five violations in the past three years related to its lack of infection control practices and for not doing enough to prevent accidents and falls involving residents.

Yet, it has received a $46,485 grant beginning in 2017 to buy tablets that help connect 52 residents with memory issues to their families.

That same year, the nursing home was fined more than $430,000 for, among other things, failing to perform required lab tests on a resident taking antibiotics, according to a November 2017 inspection report. The resident died because of drug toxicity.

Mountain Manor is one of 32 nursing homes that have been fined by CMS in the past three years and also received CMP funds. It did not respond to requests for comment.

“It’s grossly unfair to the families who have loved ones who have been victimized by those facilities,” Lee said. “Where’s the justice for those families? There is no justice.”

Parkinson, from the nursing home association, said that facilities that have been fined should have access to the CMP funds but for projects that would address their failures.

CMS needs to “direct funds to improvements in those buildings where serious issues have been found,” he said.

Last year, CMS also approved a total of $3.5 million to individual nursing homes to buy or build items to entertain residents. Lee said that many of these projects should be paid for by the nursing home as routine cost-of-doing business expenses.

Projects funded last year included:

  • A $7,771 grant to a Michigan nursing home to implement a therapeutic biking program and purchase a tandem bicycle with a wheelchair attachment to share among 240 residents. The nursing home reported that the program was a huge success. Residents “were able to fondly remember their youth…enjoying the fresh air on their faces.”
  • A $33,568 grant to a North Carolina facility for a “Blooming Oasis.” The project called for “updates” to an outside area to increase socialization and exposure to the outdoors.
  • A $1,974 grant to a New Mexico nursing home to buy special eating utensils for six residents with hand tremors.

One project especially rankled Lee and reminded him of the bread machine from years ago in Florida.

Duncanville Healthcare and Rehabilitation Center in Texas received a $20,658 grant for a project it described as “culture-changing, one step at a time.”

The money was to be used to buy a soft-serve ice cream machine and an antique popcorn popper.

Though it has not been fined in the past three years, Duncanville has faced serious violations. A November 2019 inspection report shows the facility failed to stop a resident with known wandering habits and cognitive issues from leaving the facility. He ended up at a nearby store parking lot where police found him. The facility didn’t even know he was missing until a family member told them.

Duncanville has CMS’s lowest rating for overall quality. It also has battled COVID-19 outbreaks with 21 cases among its staff and 47 among its residents; five of the residents died, according to state data.

Nursing home administrators did not respond to requests for comment.

Parkinson said that some of these grants may seem “frivolous” and probably should have been paid for through the nursing homes' annual budgets.

They are examples of why he believes the CMP program doesn’t work and needs major overhauls so that money is directed to poor-quality nursing homes and to improve infection control.

“You want to do everything you can to give the residents as good of a life as possible and part of them giving them a good life is to make sure they’re safe,” Parkinson said. “A lot of the (CMP) funding really needs to go to infection control, making sure there’s enough staff. Etcetera. Etcetera. Etcetera.”

A daughter pushes for CMP funds to protect her mother

In the early weeks of the pandemic, Riverside Nursing and Rehabilitation Center in Austin, Texas became a COVID-19 hotspot.

Residents were contracting and dying from the virus.

Sanders feared for her 70-year-old mother who is a cancer survivor now battling dementia.

On April 8, she said she received a call from the nursing home to alert her that three residents had contracted the virus.

“I just knew the virus was going to spread like wildfire. And it did,” she said.

She believed the key to stopping the spread involved getting rapid testing machines into the facility. She started calling lawmakers and public health officials where she heard about the Civil Money Penalty fund.

She found out that Texas had about $14 million in its stash. She collected fund balances from every state.

“I thought, ‘Oh wow. That would be the perfect way to buy these molecular point-of-care rapid testing machines,’” she said.

Each machine, which also has the ability to test for flu viruses, costs about $13,000, she said.

She began calling state and federal officials asking them to release CMP funds for testing.

“It’s been very frustrating for me because in this pandemic, and the nursing home residents being at ground zero, it just seems to be very obvious that you would use those dollars to ensure the residents' safety,” she said. “And one of the ways to ensure the residents' safety is to make sure that you’re regularly and robustly testing the nursing home staff who are primarily responsible for bringing the virus into the building.”

In early May, she began emailing CMS about releasing these funds for testing. Ultimately, she said she didn’t receive a clear answer about why that wouldn’t happen.

Even seven months into the pandemic, more than 200 nursing homes reported to the federal government in early October that they don’t have the ability to test residents within a seven day period. Nearly two-thirds said they couldn’t test because they lacked the supplies.

Now, nursing homes across the country face a second wave of the coronavirus. Infections are increasing across the country, especially in states where colder weather has forced them indoors.

Between Oct. 1 and 23, 44 states reported at least a 10% increase in cases, according to InvestigateTV analysis of COVID data from Johns Hopkins University.

Sixteen of them have had at least a 30% increase in cases.

Texas has seen a 13% increase. As of mid-October, the virus sickened 69 residents at the Texas nursing home where Sanders' mother lives; 14 of them died.

In a statement to InvestigateTV, Regency Integrated Health Services, which owns Riverside, said that it purchased rapid antigen testing machines in September.

Sanders said CMP funds should be used to buy for all nursing homes molecular testing machines, which the Food and Drug Administration says may be more accurate.

Sanders doesn’t want her mother to become one of those tragic statistics and will continue to push for releasing CMP funds to help nursing homes battle COVID-19.

“Fear is what was the driving force behind my advocacy,” she said. “I feel responsible as her daughter to make sure that I reach out to everyone I possibly can.”

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