By Brandy Schnautz Mann

On Friday, February 12, 2010, the Texas Department of Aging and Disability Services (“DADS”) issued a press release heralding the agency’s intention to launch a self-described “blitz” of investigations of 1,550 nursing homes across the state beginning later this month.  DADS also announced that it will begin hiring 35 new investigators in March as part of an “aggressive” new campaign to improve the agency’s response time to complaints and incidents involving nursing facility residents.  DADS is the state agency charged with regulating licensed long-term care facilities in Texas.  As such, it is responsible for conducting on-site visits of facilities to ensure that they are in compliance with state law and Medicare conditions of participation. 

Perhaps not coincidently, DADS’ announcement came just two days in advance of the publication of the first installment of a two-part exposé titled “Elders Unprotected” in the Sunday, February 14, edition of the San Antonio Express-News.  The article relates in detail several anecdotal cases involving specific residents in San Antonio-area nursing homes.  Its clear that the journalists’ intention is to portray these cases as evidence of an institutional failure on the part of DADS to protect the state’s elderly population residing in nursing homes. 

Based on information gathered through public information requests, the Express-News article reports that DADS received 16,200 “reports of poor treatment” of nursing home residents in 2009, but that four out of five of the reports were found by DADS to be “unsubstantiated.”  The article does not define what it considered to be a report of “poor treatment.”  Nor does it mention that a large number of the reports DADS receives come from the nursing homes themselves, which are required by law to self-report everything from accusations of theft between resident roommates to anonymous allegations of abuse or neglect—even when there is no corroborating evidence and the purported victim denies anything occurred.

The Express-News article also reports that in 2009 DADS failed to respond in the timeframe required by state law in two out of three cases in which residents were “possibly harmed by their caregivers." According to DADS, backlogged complaints are on average 53 days past their investigation due date.  However, the article does concede that in “nearly all cases,” DADS responded to the most serious complaints within the mandated two-day deadline. 

Indeed, DADS’ February 12 press release touts the agency’s track record of responding to 99% of the most serious, “priority one” complaints within 24 hours.  Thus, it appears to be the less serious, lower priority complaints that will be the subject of DADS’ investigation “blitz” planned for February and March.  According to DADS, not only is the agency hiring 35 new investigators, it is also implementing “specialized complaint investigation teams throughout the state,” which will be “dedicated solely to conducting investigations of complaints and self-reported incidents.”  DADS reports that rather than creating 35 new jobs, it will convert vacancies to investigator positions.  

Although the Express-News article focuses most directly on the “failures” of DADS, its portrayal of the nursing home industry is far from positive.  For example, the article repeatedly notes that facilities identified as being in violation of standards merely promise to make corrections or “do better” in order to make state regulators “back off.”  The article fails to mention that facilities are required by law to develop and implement formal “plans of correction” to remain licensed and that it is not uncommon for facilities to be forced to wait months before DADS surveyors return to verify that plans have been put in place.  Similarly, the article laments that during investigations, DADS investigators often find “a lack of evidence to confirm complaints.”  Rather than concluding that this fact could possibly mean that numerous complaints are unfounded, the article implies that the evidence of wrongdoing disappears before the investigators arrive.     

Although it appears that DADS intended its February 12 press release to mitigate the adverse publicity of the Express-News’ story, long-term care providers need to prepare for increased scrutiny in the coming weeks.  Providers should ensure that paperwork documenting their investigations of complaints is in order and ready for surveyor inspection.  This is true even for complaints considered to be minor in nature—including those properly reported to DADS months in the past.  Providers should also continue to carefully document, investigate, and report all allegations (even the most minor) with the expectation that DADS surveyors will be aggressively scrutinizing every complaint—not to mention that a number of these surveyors will be new and inexperienced in their jobs. 

Also, as stated above, the Express-News article draws specific attention to the fact that investigators found four out of five complaints to be unsubstantiated in 2009.  Providers need to be prepared for the possibility that DADS may respond to the publication of this statistic by seeking to substantiate complaints even when evidence is wholly lacking.  Thus, providers should conduct all incident investigations as thoroughly as possible, assuming they will be required to prove their compliance with the law and facility policies and procedures.   

Moreover, the Express-News article specifically notes DADS’ failure to enforce a state regulation requiring nursing facilities to report the details surrounding the deaths of any resident in order for DADS to analyze these reports in order to identify problems and trends.  Providers should ensure that they continue to report deaths in compliance with state law and DADS rules (Texas Health & Safety Code § 242.134 and 40 Texas Administrative Code § 19.606) regardless of DADS’ historical lax enforcement of this requirement. 

Finally, providers might consider it some consolation that the article highlights problems with the state and federal rating systems for nursing facilities.  It reports that thirty-one states’ attorneys general (though not Texas’), in addition to many long-term care industry representatives, support the suspension of the Centers of Medicare and Medicaid’s (“CMS”) new five-star rating system as ineffective and misleading to consumers.
 
If you have any questions regarding this e-Alert, please contact Carla Cox at 512-236-2040 or cjcox@jw.com or Brandy Schnautz Mann at 512-236-2310 or bmann@jw.com.