In this Issue - December 2016
The first phase of revised federal nursing home regulations
took effect on November 28, 2016, implementing numerous changes to the federal standards that have been in place since 1991. The new regulations are a mixed bag for nursing home residents
that affect almost every aspect of life in a nursing home. Unfortunately, the most important new requirement – a ban on pre-dispute arbitration agreements – has been stayed by a federal court order in Mississippi
ruling on behalf of the American Health Care Association.
The National Consumer Voice for Quality Long-Term Care published a summary of key changes
to some of the requirements, including regulatory sections on Residents Rights; Freedom from Abuse, Neglect, and Exploitation; and Admission, Transfer and Discharge Rights. As we go to press, Congressional Republicans have moved to repeal all regulation packages promulgated within the last 60 days of the Obama administration, including the nursing home regulations. Stay tuned.
The nursing home crisis in Humboldt County
triggered by Shlomo Rechnitz’s decision to close three of the five freestanding skilled nursing facilities in the County took a dramatic turn for the better with his November 7th announcement that he had rescinded plans to close two of the three nursing homes
. Reportedly, Seaview and Eureka Rehabilitation and Wellness Centers will remain open and only Pacific Rehabilitation and Wellness Center will close. This reversal is very good news for current residents of these facilities, who were facing possible transfers to nursing homes hundreds of miles away. Mr. Rechnitz had seemingly used their lives as bargaining chips while seeking higher Medi-Cal rates for the nursing homes. Senator Mike McGuire described the situation as “a completely avoidable crisis brought on by a billion dollar corporation that has consistently put profits over people.”
Even as the crisis subsided, there were new revelations
that the Department of Public Health had given Rockport Healthcare Services permission to close the nursing homes despite the fact the Department never gave Rockport approval to manage the facilities. A Rockport application to manage the nursing homes has been pending since 2014. The Department of Public Health’s failure to protect the residents during this crisis once again raises serious questions about its leadership, mission and priorities. California nursing home residents deserve far better from the agency charged with protecting their rights.
On November 27, 2016, NPR Weekend Edition Sunday reported that hospitalized patients unknowingly end up in substandard nursing homes where they suffer bed sores, infections and other types of neglect because hospitals usually fail to warn them about dangerous nursing homes or guide them to better ones. The report, Rule Change Could Push Hospitals to Tell Patients About Nursing Home Quality
, told the story of Elizabeth Fee, an 88-year-old woman who died in January 2012 about two weeks after the California Pacific Medical Center (CPMC) in San Francisco discharged her to its own skilled nursing facility unit, which reportedly had a one star rating by CMS at the time. Mrs. Fee’s death due to an undiagnosed bowel obstruction was the subject of a CANHR Nursing Home Violation of the Month in September 2013
because of the nightmarish conditions surrounding her death. NPR reports that a proposed Obama administration rule that would require hospitals to tell patients about the quality of nursing homes they are considering is in jeopardy.
On October 26, 2016, PennLive reported that its national analysis of 11,000 nursing homes found that nearly half had registered nursing (RN) levels on Nursing Home Compare that were 50 percent higher than shown in their federal reimbursement reports. The PennLive report, Think your nursing home is understaffed? It’s probably worse than it looks
, is part of its continuing series, Failing the Frail
The national analysis compared RN hours in two sets of data self-reported by nursing homes. The first set includes unaudited staffing reports completed by nursing homes during their annual inspections. The staffing levels compiled from these reports is reported on Nursing Home Compare and CMS uses it to calculate the staffing component of each nursing home’s Five-Star Rating. The second data set contains the Medicare/Medicaid cost reports filed with the federal government.
The analysis found that nearly half of nursing homes across the nation appear to be significantly inflating their RN staffing levels on Nursing Home Compare.
PennLive created a national searchable database, Is your nursing home inflating its staffing level?
, that allows the public to compare, by facility, the RN staffing levels reported on Nursing Home Compare with the levels reported in the Medicare/Medicaid cost reports. Most California nursing homes are included. In some cases, the RN staffing levels on Nursing Home Compare exceed the levels shown in the Medicare/Medicaid cost reports by over 1,000 percent.
The Medi-Cal recovery provisions of SB 33 (Hernandez), which were incorporated into SB 833, became effective January 1, 2017. While these new statutory changes give advocates plenty of reason to celebrate, there are some significant issues that have arisen in implementation of the new law.
- The recovery unit has clarified that there will be no recovery from surviving spouses or registered domestic partners on or after January 1, 2017 regardless of when the Medi-Cal spouse died.
- The Department has accepted the definition of probate estate at Probate Code §19000 accordingly: (g) “Probate estate” means a decedent’s estate subject to administration pursuant to Division 7 (commencing with Section 7000).
- Small Estates & Probate Code §13100 - The Department has also agreed that those estates that are eligible for summary administration ($150,000 or less) under the Provisions of Division 8 of the Probate Code (Disposition of Estate Without Administration) will not be subject to recovery. Thus, unless the estate is subject to formal probate administration, there will be no recovery.
- Probate Code §13050 includes a list of exclusions from probate or probate administration. This includes the exclusion of “any manufactured home, mobile home, commercial coach, truck camper or floating home registered under Part 2 (commencing with Section 18000) of Division 13 of the Health and Safety Code (manufactured homes). Basically, if the mobile home is registered with Housing and Community Development, it is exempt from inclusion under this section.
- Still outstanding – whether the Department can/will try to recover for all IHSS services, rather than just those personal care services provided under the Section 1915(c) waiver programs. Current California regulations at 22 CCR §50961(c) exempt payments made for personal care services provided under the IHSS program, but the Department is suggesting that they are permitted to expanding recovery for IHSS and that would impact all IHSS recipients who are 55 and over – estimated at over 400,000 IHSS consumers.