"There's so little enforcement going on," says Toby Edelman, an attorney with the Center for Medicare Advocacy in Washington, D.C. "We don't say, 'Yes, you have to fix it for the future, but there's also a consequence because this person died.' If you don't pay your taxes, they might prosecute you if it's really bad. You can't just say, 'But I paid my taxes last year.' So what? You have to pay your taxes every year."
Since 1997, the Government Accountability Office (formerly the General Accounting Office), which audits federal agencies to determine whether they're doing good work, has been pointing out cracks in the system. Five years ago, the GAO found that the threat of sanctions doesn't force change in bad nursing homes because the homes fix things during grace periods, then lapse.
In July 2003, the GAO cited Arizona as one of several states that underreport serious problems, allowing problem homes to escape punishment.
The GAO looked at state and federal records from between 2000 and 2002, when the state boasted a 25 percent reduction in the number of serious violations found in nursing homes, the biggest drop of any state in the nation. On the surface, the statistics showed that the state's nursing homes had improved dramatically. But a closer look showed that the state wasn't doing its job.
According to the GAO, Arizona was letting nursing homes off the hook by not telling the federal government about homes with a pattern of harming residents. States are supposed to notify the feds when inspectors find two or more incidents that resulted in injury or death within two years. The feds are supposed to follow up with immediate sanctions. Arizona made 24 referrals to the feds during the two-year period, but the GAO found that an additional nine cases should have been sent to the federal government.
The GAO also determined that the state was downplaying the seriousness of violations, ruling that no one had been harmed in homes with a history of problems when, in fact, residents had suffered real injuries. In one case in which the state found no harm, a resident who was supposed to be turned every hour to prevent her bedsore from worsening went as long as eight hours without being turned. The charge nurse told inspectors she didn't know a doctor had ordered frequent turning. The woman's bedsore progressed from relatively minor to a wound deep enough that muscle or bone suffered permanent damage.
Starting last year, the Arizona Department of Health Services began levying its own fines instead of relying solely on the federal government. The change came after a critical report from the state auditor general issued the month before Governor Janet Napolitano took office in January 2003. The auditor general pointed out that the state had never fined a nursing home and that inspectors weren't following up when homes self-reported problems to the state. The auditor general also said the department wasn't releasing enough information to the public about complaints and annual inspections.
In September, the state auditor general ruled that the problems had been fixed.
But the state still has a long way to go.
When they are levied, fines are small. For example, in October 2003, state regulators determined that Sun View Care Center in Youngtown had harmed residents by improperly using bed rails. Three residents had climbed over their rails and fell, all three within a month's time. Two suffered broken bones. According to the state report, the home kept using the same rails for one woman even after she fell twice. The third time, she fractured her hip.
The state could have levied a $500 fine for each resident who fell and increased it even more with a sanction for every night someone slept in a dangerous bed.
Instead, Sun View paid a $500 fine.
In theory, there should be plenty of information about nursing homes available to the public.
The attorney general maintains an elder-abuse registry that's supposed to include a report from any state agency that substantiates an allegation of abuse, which includes neglect that has resulted in injury.
The Bush administration has advocated a market-based approach to improving nursing homes. By posting information about inspection results on the Internet, consumers can make informed choices before putting loved ones in nursing homes.
The hope is that bad nursing homes will disappear because no one would place a relative in a home that provides poor care. The reality is, there's no place consumers can check to find all the information they need.
The Arizona Department of Health Services posts the dates and amounts of state fines against nursing homes on its Web site, but no information about violations that prompted the punishments. For that kind of detail, a consumer must refer to the federal government's Web site, which has no information about fines either from the state or federal government.