Surviving the survey process ... or hiding behind it?

The human cost of running a "yo-yo" facility

This past September, CLTC conducted a telephone interview with Aaron Baranan, 76, who had been owner-administrator of the Ansley Pavilion Nursing Home in Atlanta for 43 years. Baranan left us with a snapshot of what appeared to be a successful mom-and-pop nursing home operation. But soon after the article appeared in the February 2001 issue, we began to receive e-mails and phone calls from members of the Georgia long term care community. Did we not know that Ansley Pavilion had been shut down recently because of substandard resident care? Although CLTC subscribes to several news feeds, this development had, unfortunately, not come to our attention before the issue went to press in December, and even then only after readers took the time to contact us. Our readers' concerns prompted us to look further into the matter. What we found was sad and disturbing.

The last of Ansley Pavilion's 72 residents moved out Dec. 15, 2000. A month earlier, the facility had become the first Georgia nursing home in nearly a dozen years to be shut down because of substandard care. One by one, the residents were taken away, many against their will. Be it ever so troubled, Ansley Pavilion had been their home. But now they would bid tearful farewells to staff members and fellow residents. A few would go home with family members. Most would travel by Medicaid van or ambulance to another nursing home.

"We usually would not endorse a relocation of this magnitude unless we felt that residents' lives were in danger," says Karen Boyles, program director of the Long Term Care Ombudsman Program of Metro Atlanta. "It's so traumatic to move people."

How bad does a nursing home have to be before it closes? Given today's chronic staffing shortages and inadequate Medicaid reimbursements, even a facility with a good record can be cited for serious problems with resident care. According to regulatory officials, what pushed Ansley Pavilion over the edge was the scope and severity of its deficiencies. In October 2000, the facility was cited for immediate jeopardy conditions for the third time in three years.

"They weren't helping people who needed assistance with activities of daily living, and there were serious problems with pressure sores that shouldn't have been," says David Dunbar, director of long term care for Georgia's Office of Regulatory Services (ORS). As a result, ORS recommended to HCFA that Ansley Pavilion's agreement with Medicaid/Medicare be terminated.

This was not the first time that Ansley Pavilion had been in trouble, Twice before, the nursing home had narrowly avoided termination of its Medicaid/Medicare funds. It had become what some regulatory officials call a "yo-yo" facility--continuously bouncing between compliance and noncompliance. Aaron Baranan, Ansley Pavilion's administrator, routinely denied deficiencies cited by ORS and filed numerous appeals. According to HCFA, he now owes three civil money penalties totaling $395,300. Hearings on these fines are still pending, and the backlog of appeals is already several years old.

Some critics say that flaws in the current survey system may contribute to in-and-out compliance. "I think the regulatory system is quite tolerant of poor care," says Toby S. Edelman, an attorney for the Center for Medicare Advocacy in Washington, D.C. "I don't see it as particularly punitive, because a lot of bad things keep going on and facilities get additional chances."

Tom Burke, a spokesman for the American Health Care Association (AHCA), says that, "Yo-yo compliance happens because it's a very process-oriented, bureaucratic system. It doesn't look at quality outcomes, and it doesn't take into account customer satisfaction."

According to Rick James, chief of the Survey and Certification Branch in HCFA's Atlanta regional office, there have been many improvements to the survey and certification program. "They are focusing on patient outcomes, rather than just the administrative capability to provide the service," he says. "They do check to see what the capabilities are, but they also check to see how the service is delivered and whether it's effective."

A downward spiral

Baranan entered the nursing home business in 1957, in days that were pre-Medicaid, pre-HCFA, pre-OBRA '87, and pre-PPS. "Mr. Baranan just got to the point where he hadn't kept up with all the regulations, and he hadn't changed with the modern times," says Fred Watson, president of the Georgia Nursing Home Association (GNHA), whose membership includes 362 of the state's 372 nursing homes. "When OBRA came along, the nursing home profession changed dramatically. Operators who were not willing to change fell behind in both meeting the requirements and in keeping up with sufficient reimbursement to pay their employees adequately."

GNHA dropped Baranan from its membership more than a year ago due to the number of complaints against Ansley Pavilion. At one point, the association had offered assistance. "We referred two or three consultants to Mr. Baranan to help him, and he would not follow their instructions and guidance," says Watson. "That's another reason that we felt that we couldn't keep him in our association. For the past five years, there had been serious problems at Ansley Pavilion. Mr. Baranan would get them back into compliance, and then it would go right back to the old way.

James says that yo-yo facilities generally achieve compliance just long enough to pass the next surveyors' visit. "Over time, they build a record where it's pretty clear that they're not going to be able to maintain compliance," he says. "The Ansley situation, I think, is exemplary of that."

The rat poison incident

In 1997, a burgeoning rodent population helped create an immediate-jeopardy situation at Ansley Pavilion. A survey report dated Feb. 11, 1997, states that, in lieu of hiring a professional exterminator, Baranan had rat poison placed in residents' rooms. [1] The report said that on Feb. 9, 1997, "an alert, interviewable resident noticed one packet of rat poison under her bed and thought it was a package of candy. She opened the packet and placed some of the pellets in her mouth. She stated that she found them very bitter and spit them out. The physician was notified and the resident was sent to the emergency room for evaluation."

The woman survived, but the Poison Control Center confirmed that the pellets were a warfarin preparation that could have been fatal if swallowed or absorbed through the skin.

Baranan requested that this incident be deleted from the survey report because the poison had been removed from residents' rooms two days prior to the surveyors' revisit. "No actual harm occurred, and as soon as the potential harm was identified the problem was immediately corrected," was Baranan's written response.

HCFA imposed a civil money penalty of $3,050 for each day that the poison had remained in residents' rooms. Baranan submitted a plan of correction for pest control and appealed the fine. Four years later, the matter still has not gone to a hearing.

"Deficiency denied"

In October 1998, surveyors found that conditions at Ansley Pavilion placed residents' health and safety in immediate jeopardy involving use of restraints and quality-of-care issues. Earlier that month, a resident had died when she tried to crawl out of bed and got her head caught between the bed rail and the bed frame. A 52-page survey report dated Oct. 16, 1998, lists deficiencies in areas ranging from residents' rights to incontinence care. Furniture and equipment were found to be dirty, rusty, or broken. Staff members told surveyors that on some 11:00 p.m.-7:00 a.m. shifts, only one CNA was on duty in the 72-bed facility. Incontinent residents often lay for hours in their own waste before someone came to their assistance, they said. Baranan also was cited for violating residents' rights. In once instance, he had removed a resident's telephone and personal television from her room without her permission. Moreover, admission contracts had required residents to either waive their right to sue the facility or pay an additional $300 a month.

In response to the October 1998 survey, Baranan adopted the tactic that would become his mantra: "I always responded to the state surveyors, in their charges of deficiencies, with the words 'deficiency denied' or something similar," he explains. (See "Point/Counterpoint," page 18.) "Then I told them what I was going to do about the alleged conditions .... Since each of the alleged deficiencies had been denied--and never brought to a hearing--these could not be used against us by anybody."

Nevertheless, HCFA imposed fines on Ansley Pavilion of $7,500 per day and threatened to terminate its provider agreement if the jeopardy was not removed by Nov. 11, 1998. The jeopardy was removed in time, and the fine was reduced to $400 a day. Ansley Pavilion's residents continued to live in a facility that ORS had determined "was not administered in a manner that enabled it to use its resources effectively and efficiently to maintain the highest practicable physical, mental, and psychosocial well-being of each resident."

Another resurvey found Ansley Pavilion still to be in noncompliance. Once again, ORS recommended to HCFA that Ansley Pavilion's provider agreement be terminated if compliance could not be achieved. This time the cut-off date was April 16, 1999. Again, Baranan replied to each citation with "deficiency denied" followed by a plan of correction. The facility would stay in operation for another two years.

A tangle of red tape

In November 1998, while HCFA and ORS wrestled with Ansley Pavilion's noncompliance, Cheryl Harris--an ombudsman with the Long Term Care Ombudsman Program of Metro Atlanta--sent a letter requesting that Georgia's State Board of Nursing Home Administrators investigate Baranan and evaluate his ability to function as a licensed nursing home administrator. Apparently, the letter became ensnarled in red tape as it traveled through various government offices. According to Harris, "It was the following August [9 months later] that I actually got a written response back that said: 'We find [Baranan's] facility is presently in compliance with ORS, therefore he's in compliance with our requirements. We've encouraged him to work more closely with the Ombudsman Program.' And that was the end of it."

According to LaSharn Hughes, current executive director of Georgia's Board of Nursing Home Administrators, Baranan is still licensed as a nursing home administrator.

Final jeopardy

Following the October 2000 survey, despite a disproportionate number of residents with facility-acquired pressure sores, it looked as though Ansley Pavilion might squeak through again. The facility had hired a skin-care specialist to help with treatment of pressure sores. But a repeat inspection Nov. 16 found that the jeopardy had not been removed. "On this last survey cycle, they weren't able to clear the bar," says HCFA's James. "Given their track record, the termination was put into effect and it went through."

Baranan remains recalcitrant even today as he repeatedly states that Ansley Pavilion was a good nursing home. "We ran a high-quality place," he says. "So I don't agree with any of those deficiencies. Never agreed with them."

New management

On Feb. 1, 2001, Baranan sold his nursing home to Presbyterian Homes of Georgia. As this issue of CLTC goes to press in early March, the Quitman, Ga-based company plans to reopen it as a 62-bed facility under the name "Westminster Commons." Camp Neel, the facility's new administrator, declined to reveal the purchase price but says that the building needs work. "We're sheet-rocking the entire facility, putting carpet in the halls and dayroom areas, and replacing all the furnishings and most of the equipment," says Neel. Following a screening process, Presbyterian Homes retained about 40 percent of the existing staff.

Judy Dalton, who worked at Ansley Pavilion off and on for 20 years, will continue to handle admissions under the new management. She declined to comment on the facility's past. "I would rather work on what the future will bring," says Dalton.

Harris, who visited Ansley Pavilion many times as ombudsman, says that she is glad that the employees who were retained will be working for a good company. She has also followed up on former Ansley Pavilion residents. "To my knowledge, most of them are doing very well," she says.

Preventive medicine 

Many long term care providers say that the industry is already overregulated and that the current survey system does not always fairly represent a nursing home. But even with regulatory systems in place, an erratic facility can still keep operating despite deficiencies. How can this be prevented?

HCFA's James feels that Ansley Pavilion was handled correctly. "I can't think of anything that could be done differently," he says. "The survey and certification program, and the regulations that set out minimum standards for health and safety are just that--they're standards for health and safety. That you can have poor care despite those standards is just a fact." James adds that extreme cases of in-and-out compliance are unusual.

"I don't know that the answer is always going to be more stringent regulations, or more stringent enforcement--although that's certainly not something that we should back away from," says ORS's Dunbar. "I think we need to seek better opportunities to train staff on clinical approaches to problems of hydration, nutrition, and pressure sores so that even with staff turnover, a high level of care can be maintained."

Watson disagrees strongly with closing a facility and requiring residents to move. "If a facility is not making good-faith efforts to come into compliance, then the state should have an opportunity to put in monitors and a temporary manager," he says. "That probably should have been done a long time ago."

Part of the solution may lie within the long term care industry itself. "State associations could monitor their own members or provide peer counseling for their members who are having problems," says Edelman. "It's not a surprise which facilities provide the worst care--this is pretty general knowledge."

It is often the troubled facilities that make the newspaper headlines, and every nursing home "horror story" affects the public image of the entire long term care community. More self-monitoring within the industry--and working with legislators to effect constructive changes in the regulatory system--could help raise the quality of care while improving public perception of nursing homes.

Reference:

(1.) Survey Report for Ansley Pavilion Nursing Home, Form HCFA-2567L, Feb. 11, 1998;2.

Point/counterpoint

Here's how Administrator Aaron Baranan responded to the following excerpts from the October 1998 survey of the Ansley Pavilion Nursing Home. (All survey documents and responses were obtained by CLTC through an Open Record Request to the Georgia Department of Human Resources, Office of Regulatory Services, Long Term Care Section, Atlanta.)

What the surveyors said:

Admissions contracts violated residents' rights by requiring them to: "Relinquish the right to have visitors after 5 p.m. unless special arrangements were made with the office and the Head Nurse."

Baranan's reply:

"F-151 Deficiency denied .... As a matter of safety, the nursing staff usually starts locking the exit doors after 5:00 p.m., and they try not to admit anyone they do not know. So if you want to come late to visit, just telephone in advance so they will know to admit you and not think you are a prowler."

What the surveyors said:

Regarding the death of a resident who was strangled when her head caught between the bed rail and bed frame: "Administrative nursing staff interviews at 4:15 p.m. on 10/15/98 confirmed that full side rails were routinely used for this resident while in bed, but an assessment for use or effectiveness of the side rail had never been conducted despite repeated falls. It was further revealed that the facility did not assess any residents for use of side rails."

Baranan's reply:

"F-221 Deficiency denied. The procedures for assessing residents' possible needs for restraints have been reviewed and revised. The attached protocol for 'Falls, Injuries, Unusual Behavior,' plus the attached 'Restraint Assessment' form will be utilized. Restraint assessments and fall assessments have been done on all the cited residents and all other residents with falls or injuries within die last 90 days. The final decision will be that of the resident's physician as to type, time, and duration of restraints, if any. The DON or designee will monitor, and these will be further reviewed at the monthly QA meetings. This plan will insure proper care for residents 2 and 19 and any other residents that could have been affected by the practice. Completed 10/28/98."

What the surveyors said:

"During a group meeting conducted on 10/14/98 at 2:00 p.m., nine (9) of nine (9) residents stated that the administrator was aware that religious services were a significant part of their lives. He had refused to respect their wishes and allow church services or ministers within the facility .... Interview with facility staff on 10/15/98 at 2:40 p.m. confirmed that the residents witnessed a preacher conducting services asked, by the administrator, to leave the facility and not return. It was further stated that the residents were visibly upset and many were in team."

Baranan's reply:

"F-242 Deficiency denied. This was a one-time incident with one preacher who had many residents crying. Religious programs have continued. Religious programs that bring happiness to residents have always been encouraged. Programs that bring some residents to tears and distress have been discouraged. The attached schedule of sermons has been implemented and will be continued with the same or equivalent sermons. This plan will assure religious services for the cited residents and any other residents that could have been affected by the practice. Completed 10/18/98."

What the surveyors said:

"On 10/14 at 9:40 a.m., during an individual interview, resident 'R,' identified as cognitively alert, was told by staff that she was too fat to be moved out of bed .... Resident #35 was observed on 10/14 at 8:25 a.m. crying. The resident was lying on top of urine-saturated linens .... Resident "S" was observed lying on top of wet shredded newspapers and multiple paper towels. When questioned about using a cloth incontinence diaper instead of paper, the resident stated that cloth stays wet too long, and the paper dries quicker."

Baranan's reply:

"F-241 Deficiency denied. CNAs are being inserviced on the importance of each resident's dignity and respect, and the importance of refraining from embarrassing comments and on the proper, way to converse with residents, and have been inserviced on incontinent care. This will be monitored by the Charge Nurses. This plan will assure proper care for the cited residents and any other residents that could have been affected by the practice. Completion date 11/20/98." In an addendum dated Nov. 3, 1998, the administrator stated that "The DON will visit with resident 'R' and resident #35 to apologize and to make sure they know how to report any such happenings in the future."

What the surveyors said:

"Resident #20 had a physician order for a urinalysis and culture and sensitivity written Oct. 13, 1998. On Oct. 16, 1998, the specimen still had not been collected. Resident #20 also had a Peg for continuous tube feeding. On Sept. 21, 1998, the feeding tube was noted to be very soft and ballooning. The attending physician ordered to have the tube replaced. On Oct. 16, 1998, the tube still had not been replaced."

Baranan's reply:

"F-309 Deficiency denied. Presently we have on staff a special LPN to do the specialized nursing treatments that many residents require. The nurse is being given the additional duty to monitor the charts to assure that physician orders are being carried out and that follow-up is being done. This will be monitored by DON or designee. This will insure that the physician orders will be carried out on the cited residents and all other residents that could have been affected by the practice. Completion 11/20/98."