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Decades of neglect in nursing homes spur Biden plan for staff mandates

Industry opposes a federal minimum staff requirement, citing high costs and workforce shortages

Many experts and advocates have been demanding minimum staffing in U.S. nursing homes for decades. (Portland Press Herald/Getty Images)

Lisa Cabrera saw the warning signs of poor care at her father’s California nursing home — the bug bites on his back, the facial injuries from a fall, the times he was soaked in urine instead of being ready for trips to church. Still, she believed repeated assurances that the staff had inspected the pressure sore on his heel and changed the bandages.

But her dad, Louie Sira, 67, a disabled former janitor, kept gesturing to his right leg, indicating he felt pain. Finally, Cabrera peeled the dressing back herself, which had grown worse since the last time she looked.

“It stunk so bad, and it was bigger,” Cabrera said. The gangrenous wound had dug down to bone and tendon in his heel, according to court records. Doctors were forced to amputate his right leg above the knee. He died three months later, in August 2019.

A county jury awarded $13.5 million in civil damages to Sira’s family and other plaintiffs after lawyers argued Parkview Healthcare Center in Hayward, Calif., and its affiliated management company, Mariner Health Central, skimped on nursing staff to boost profits. State and county authorities are seeking civil penalties, alleging among other things that Mariner saved more than $4 million by short-staffing the Parkview facility in the last three years Sira lived there.

Parkview and Mariner, which are appealing the verdict, say the plaintiffs did not present sufficient evidence of neglect or, in the case of Sira, wrongful death. It has denied all allegations including that its facilities were understaffed and that it kept its nursing force low for financial gain.

Critics say the details of Sira’s suffering add to decades of accumulated evidence that residents suffer more complications, such as bedsores and falls, in nursing homes with inadequate numbers of front-line nurses and nursing assistants. Now, after years of debate and industry resistance, the Biden administration has set in motion plans for a federal minimum staffing requirement for the nation’s 15,500 nursing homes. The new rule is expected to be announced in 2023.

Health and Human Services Secretary Xavier Becerra said in an interview that the extraordinary toll of coronavirus deaths in nursing homes served as a catalyst for the Biden administration to take action. Nearly 160,000 nursing home residents have died of covid-19 in the coronavirus pandemic, a catastrophic impact on frail elderly people who were especially vulnerable to infection and living in closely packed quarters. About 2,700 staff members also have died in the pandemic.

“The dirty little secret was there,” Becerra said. “With covid, you couldn’t hide it.”

Many experts and advocates have been demanding minimum staffing in U.S. nursing homes for decades. “If we can finally get this accomplished, it’s not going to solve all the problems, but it’s going to make a big difference,” said Charlene Harrington, a professor emeritus at the University of California at San Francisco and a researcher on the impact of staff size and training on nursing home quality.

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A pivotal 2001 report produced for the agency that regulates the industry, the Centers for Medicare and Medicaid Services (CMS), found that nursing homes should deliver at least 4.1 hours of nursing care to each resident every day to avoid harm such as bedsores and falls — about the equivalent of one nurse for every seven residents on day and evening shifts.

Most U.S. nursing homes fall short of that minimum.

In 2019, the year before the pandemic, only about a third, or 5,200, nursing homes “frequently” reached the 4.1 hours threshold for each resident, according to an estimate by the U.S. Government Accountability Office. It defined “frequently” as at least 80 percent of the days in a year.

On the bottom end of the spectrum, the GAO estimate said, roughly a fifth, or 3,000, nursing homes met the minimum standard on fewer than 20 percent of the days in a year.

Amid industry opposition to mandates, however, the 2001 CMS study guidelines have never become a requirement. In the two decades since, lawsuits, state inspections, academic studies and government reports have continued to show the negative impact of low nursing staff levels on quality.

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It is not yet clear what ratio the administration will impose, and whether it will adhere to the 2001 guidelines or pick another range. It is conducting a new analysis of nursing home operations to help it decide. Wherever it lands, Biden’s plan will run up against the lobbying clout of the nation’s nursing homes, which have won previous debates over a national staffing minimum, including in 2016, when President Barack Obama’s administration rejected the idea.

The industry contends minimum staff mandates of 4.1 hours per resident per day would cost up to $10 billion per year and are unworkable because of a shortage of workers willing to do the job. It says government has never provided enough funding, especially through Medicaid programs, to support that level of staffing, which it says could require 187,000 new workers.

“It’s one thing to announce we are going to get all these workers in all these buildings, but are we as a society willing to pay for it? So far the answer has been no,” said Mark Parkinson, president and chief executive of the American Health Care Association, which represents the nursing home industry.

“If you have more staff, it’s better than having less staff,” he added. But imposing a broad mandate does not make sense, he said. The association cites federal data showing total nursing home employment dropped to 1.34 million workers from 1.58 million during the pandemic.

“The administration can propose it and may require it to be done,” Parkinson said, “but the workers are not there and it will not happen.”

The association has said most nursing homes in the country are grappling with the fallout of staff shortages made worse by the pandemic. LeadingAge, an association that represents nonprofit nursing homes, also opposes the mandate. It said in written comments to the administration that the rule “unjustly punishes nursing homes that are unable to meet standards due to factors beyond their control.”

Critics counter that the nursing home industry has abundant profit available to boost staffing and make the jobs more attractive. But the industry’s business model, with multiple related corporate entities often receiving payments from a single nursing home, makes it difficult to follow the money.

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Shortchanging the direct-care workforce — primarily made up of women and people of color — with low pay, poor training and insufficient numbers is a tempting way for nursing homes to boost the bottom line, said Kelly Bagby, vice president at AARP Foundation Litigation and a former senior counsel in the Health and Human Services inspector general’s office.

“It’s the simplest way to maximize your profit,” she said.

‘Staffing is scary unsafe’

A review of enforcement actions and lawsuits filed against nursing homes illuminates the ways a poor ratio of residents to staff can lead to alleged poor care and neglect.

In Washington state, for instance, a state inspector documented staffing levels at the Arcadia Healthcare — University Place on Jan. 27, 2020. For 110 residents, there were four direct-care nurses on duty during the day shift, a ratio of one nurse assistant to 27 residents, according to the report. That day, multiple residents received their insulin hours late. The inspection report cited other examples of allegedly deficient care, including untreated pain and poor wound care.

A registered nurse at the facility told the inspector “staffing is scary unsafe here.” Representatives of the facility did not respond to requests for comment. A New York venture capital and private-equity firm listed in federal records as an indirect owner of the facility, Goldner Capital Management, also did not respond. In the facility’s corrective action plan included in the inspection report, the facility said it would provide 30 days of 24-hour manager coverage to ensure staffing levels were safe. The report said the facility also “consolidated resident rooms to provide safer staffing abilities.”

In Detroit, an inspection report for the Westwood Nursing Center said that on the weekend of Aug. 27 and 28 this year, several residents reported they could not find nursing staff and did not receive daily medications. Some of them called 911. Investigators confirmed in a review of records that multiple residents did not get their pills, including medications for pain, hypertension, blood clotting and heart problems. The inspection report said the nurses scheduled to work that weekend “called off” and that some managers, unable to obtain nurses from an outside agency, attempted to provide care themselves but did not distribute medications.

Subsequent inspections revealed a number of alleged violations at Westwood. In one, the inspection report found, a resident was restrained on multiple days in a recliner by an attachable table top. The resident was observed “pulling on the secured table and yelling out.” A staffer told the inspector the table was in place to keep the resident from falling. The resident was supposed to be released from the restraint arrangement every two hours, according to a physician’s order, but there was no evidence that order had been followed, the report said. The report also documented bedrooms allegedly strewn with garbage and swarming with flies. Westwood did not respond to a request for comment. Previously, a letter to the facility from the state in May 2022 said Westwood did not have any noncompliance issues at that time.

‘I couldn’t take care of everybody’

Certified nursing assistants provide the bulk of care in nursing homes. They earned a median wage of $14.41 an hour in 2021, according to the nonprofit policy group PHI, citing the Bureau of Labor Statistics data. They lift patients in and out of bed — a task that sometimes requires two people. They shower, bathe and groom. They are supervised by smaller numbers of higher-skilled nurses — registered nurses and licensed practical nurses — who dispense medications and monitor vital signs.

The federal staffing requirement for each facility is one eight-hour shift per 24 hours for a registered nurse — who can make vital judgments for medical interventionsand one licensed practical nurse on duty at all times.

For the total nursing staff needed — including the people who deliver most of the care, the certified nursing assistants — the government’s rule is vague: whatever an operator determines is “sufficient” to assure the safety and well-being of residents.

To fill the void left by the lack of specific federal requirements, 35 states and D.C. have adopted their own minimum staffing standards. With the exception of D.C., they fall below the standard the CMS study identified as appropriate in 2001. In a study by the nonprofit Kaiser Family Foundation, D.C. ranked No. 1 among states on Medicare’s quality rating system, with 53 percent of facilities listed at five stars.

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In Chicago, Jacinda Gaston, who was a trainee resident assistant, described her struggles this year trying to care for residents on what she said was an understaffed floor of the Alden Lakeland Rehabilitation and Healthcare Center. On many of her shifts, just two caregivers were available to take care of 72 residents, she said in an interview. Other times, there would be three caregivers and rarely there would be four, she said.

When she arrived at 3 p.m. for the start of the evening shift, she said, she would often find residents who had been lying in bed, soaked in urine and feces for hours.

“It was disturbing. I couldn’t take care of everybody,” she said. “Knowing that these people have been sleeping in their own waste all day, we had to figure out who was the worst” and prioritize them for cleaning and fresh undergarments.

Gaston worked at Alden Lakeland from March to August of this year, she said. She now works at a different nursing home that she says is better staffed. A state inspection report of Alden Lakeland in June cited Alden as deficient for failing to provide sufficient staff.

Alden Lakeland’s Chicago parent company, Alden Group, which operates more than 50 nursing homes, is the subject of a class-action lawsuit alleging chronic short-staffing and neglect.

Alden declined to comment on specific allegations, citing pending litigation. “Alden vigorously denies any and all allegations of wrongdoing set forth by the plaintiffs and their attorneys and is confident the judicial process will vindicate Alden in this action,” the company said. “Alden is committed to providing quality care, and the well-being of our residents has been and always will be our top priority.”

In Beaver, Pa., a federal investigation into alleged staffing violations led to criminal indictments on charges of conspiracy and fraud against executives and administrators of the 589-bed Brighton Rehabilitation and Wellness Center. The facility was the scene of one of the worst coronavirus outbreaks in the country in the spring of 2020, requiring the intervention of Pennsylvania National Guard troops. As of early October, 94 residents had died at Brighton from coronavirus infections, according to federal data. A spokesman for the operators, Comprehensive Healthcare Management Services, did not respond to a request for comment. Comprehensive pleaded not guilty in the case, which is pending in U.S. District Court.

Unanswered phones

Bobbie Johnson’s mother, Shirley Mike, checked in to Brighton in 2016 after a bout of sepsis. Johnson said the facility seemed nice at first. But as time went on, she said, she saw signs that her mother’s care was lacking. Her room smelled bad and her toenails grew so long they curled under her toes and caused her to limp, Johnson said. She had an unexplained bruise on her hand.

“It looked like her hair, like they didn’t try to comb it,” she said. “It didn’t look right to me.”

Johnson would bring her McDonald’s cheeseburgers and a diet soda on visits. Then in 2020 the pandemic hit. Visitors were no longer allowed. On April 3, 2020, Johnson received a call saying her mother had fallen and had been taken to the hospital. She was returned to Brighton later that day. Desperate, Johnson said she called Brighton repeatedly to check on Shirley’s condition, but the phone would just ring and ring, unanswered.

She would not know the extent of her mother’s facial injuries from the fall until more than a week later, after her mother had died of covid-19 and an undertaker informed her that Shirley had stitches in her mouth.

Brighton had given Shirley a coronavirus test on April 11, which came back positive on April 14. But Johnson was not told of the positive test until after her mother died, on April 15, according to a lawsuit alleging neglect and short-staffing filed against Brighton by Johnson and multiple other families.

“I was desperate to find out what was going on,” Johnson said. “Did they just let her lay there and die?”

Wound care gaps

Allegations of inadequate staffing took center stage in the 2021 civil trial against the Parkview nursing home and its operating company, Mariner Central. The lawyer for Lisa Cabrera and plaintiffs representing nine other residents, Susan Kang Gordon, said Parkview failed to meet California’s minimum staff threshold of 3.5 hours per day per resident of direct nursing care on 328 days over a three-year period.

State and county officials also have cited Parkview in their sweeping investigation of Mariner’s operations: “The facility routinely failed to have sufficient staff to meet the needs of its residents,” they said in a court filing in January of this year. It also has alleged that Mariner submitted inflated staff reports to the government.

The companies denied all of the allegations in a statement: “Parkview Health Care Center and Mariner Central vehemently disagree with the judgment entered in the Alameda County Superior Court and are pursuing an appeal. The companies strongly believe the appeal will be successful and the judgment will be reversed.”

Responding to the state’s claims against it, the companies added, “Parkview and the affiliated entities look forward to vindicating themselves as they defend against these scurrilous allegations.”

In the case of Louie Sira, who arrived at Parkview in 2016 after a stroke and several heart attacks, the pressure sore on his heel started as a red spot the size of a fingernail in December 2018, Gordon told the jury in the civil trial. She contended the staff neglected to follow doctor’s orders and treat it correctly by relieving pressure. He also suffered six falls in the first four months of 2019, Gordon said. He allegedly was infected multiple times with scabies and head lice.

After his daughter peeled back the heel bandage and saw the horrible nature of his wound in May 2019, he suffered a cardiac arrest while his leg was being amputated. Lawyers said he was never the same. He required a feeding tube. An expert witness testified the root cause of his death in August 2019 was the pressure injury on his right heel.

The plaintiffs’ lawyers alleged during trial that huge gaps existed in documentation of his wound care. A doctor ordered an examination by a wound specialist on Dec. 28, 2018, but there was no record the wound was examined by the wound specialist until 55 days later, according to an analysis of Sira’s medical records by the plaintiff legal team. In April 2019, 14 days passed without any record that his wound had been checked by nurses, the plaintiffs said.

Mariner has countered in court records that Sira died of preexisting conditions and that plaintiffs failed to prove that the nursing home’s conduct caused the death.

It remains uncertain how much the Parkview plaintiffs will recover after the jury award (which was modified to $8 million plus $6.6 million in attorneys’ fees). In addition to appealing in state courts, Mariner Health Central filed under Chapter 11 of the U.S. bankruptcy code in September 2022 to protect itself from paying the judgment, calling it a necessary step to keep its nursing homes open. Mariner, headquartered in Atlanta, is part of a network of 50 related companies, but only three are subject to the jury verdict, according to its bankruptcy filing documents.

Cabrera wonders now if she should have tried harder to move her father to a different facility after she noticed signs of neglect. But at the time she was concerned about moving him away from his family in Hayward, away from the community where he grew up as an avid Oakland A’s fan, where he worked for decades of his life before he was disabled by a series of strokes.

“I was always verbal about my dad’s complaints, and we did have a couple of meetings (with Parkview administrators) and we would come up with a plan of action, but nothing ever followed through,” Cabrera said. “I have never had to deal with somebody being in a home like that before. I trusted that they were going to take care of him.”

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