Report Raises Concerns Over Safety, Lack Of Accountability In Nursing Homes

Sep 9, 2020

About a quarter of COVID-19 patients in nursing homes die, according to the Centers for Medicare and Medicaid. There have been nearly 200 deaths in New Mexico nursing homes since the start of the pandemic, reports Searchlight New Mexico’s Ed Williams, who found there’s little government oversight to curb substandard care, and some facilities skirt accountability for abuse or neglect by having patients sign arbitration agreements. Meanwhile, nursing homes including those run by the national chain Genesis Healthcare continue to make profits. Williams told KUNM’s Khalil Ekulona about a contract an 87-year-old COVID patient signed upon admission to the Genesis-owned Canyon Transitional Rehabilitation Center in Albuquerque.

ED WILLIAMS: Tucked right in the middle, was an arbitration agreement which is basically a voluntary form that asks you to waive your constitutional right to a jury trial if anything goes wrong. These are standard documents that nursing homes all over the place use and they've been under fire by advocacy groups and the ACLU and the American Bar Association because the consensus among defense attorneys and advocates is that they basically deprive people of their right to a trial by jury and give carte blanche to these nursing homes to abuse and neglect with no risk of, you know, any kind of legal accountability.

KUNM: If their charge or mission statement is to give quality care, why are they seeking said protections in case they don't?

WILLIAMS: It's just the way that they've operated. They're for profit companies and it's a high risk job especially now in COVID, and there's a high probability that if you abuse or neglect someone you're going to face a lawsuit.

KUNM: New Mexico's not really in good shape when it comes to severe health and safety violations in nursing homes. What does Pro Publica's data show?

WILLIAMS: New Mexico, a few months ago, had the most health and safety violations in the country in terms of an average per home. We have a long standing problem with infection control violations. And when I say infection control what I mean is rules that would prevent the spread of infectious disease: washing hands, sanitation, making sure that catheters and other things are appropriately applied. These violations, have been widespread and really just kind of thought of as a cost of doing business. No fines are ever really levied against the companies for infection control. It might get a citation and they say that we fixed that practice, but you know statewide 85% of the nursing homes in New Mexico have been cited for infection control violations.

KUNM: Do you think this creates an access issue when it comes to elders seeking health care during this pandemic?

WILLIAMS: Here's the thing about the way that nursing homes are set up in New Mexico and elsewhere, the homes that we're talking about that have really abysmal health and safety records, the ones that are run by Genesis and others. These are homes that specifically focused on Medicaid patients and Medicare. So, the homes that have better, I'm generalizing here, but the homes that have better safety and health records are the ones that you pay a lot of money per month to live in. And so we have a system that's really discriminatory based on wealth. And if I can just expand on that a little bit, you know one of the biggest problems that these homes have is staffing. There's been problems with being short-staffed - chronically short-staffed in Genesis homes especially, and Canyon included in that - but in for-profit homes across the state. When your business model is to squeeze a profit out of a federal subsidy like Medicaid the only way to really do that and improve the profits that the company is making is to cut staff to the bone to where you're not having to pay employee hours, health benefits and all those other things. That makes you earn more profits it also puts your residents at a lot more risk. We've talked to employees who say that they are cut to the bone and at minimum staff, even during the COVID crisis, to where they're literally running from one room to the next without time to wash hands, without time to do any of the proper infection control practices. And the federal government suspended the staffing reporting requirements during the first quarter of this year, and so we don't know whether or not Canyon and other companies that are running nursing homes during the pandemic are still continuing this practice of understaffing in order to maximize corporate profits. But all of the analysts and all of the observers I talked to say that it's almost certain that that's the case.
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Here's the response from the Governor's Office to concerns raised by Ed Williams' investigative reporting for Searchlight N.M. "No More Normal" Executive Producer Marisa Demarco sent these questions via email. Spokesperson Breanna Anderson responded.

KUNM: Why did the state give a contract for housing seniors with COVID to a company that the DOJ called an unscrupulous provider that offers substandard care?

  • In the weeks following the first COVID-positives in New Mexico, the state arranged a contract with Genesis Healthcare to create a COVID-only Nursing Home. The goal has and is to create a space where:
  • Positive individuals can receive care, outside of the hospital, to lighten the burden on the health care system
  • Positive residents can be transferred to Canyon Transitional in order to contain the spread of the virus inside nursing homes with little to no other positives—creating relief to nursing homes with positives, and ultimately saving lives
  • COVID-positive residents have access to the appropriate level of care, staffing, equipment, and technology to give them the best chance at recovering from the virus

ANDERSON: Not only was Genesis one of the first organizations in the country to operate a COVID-only nursing home, they owned Canyon Transitional, located in Albuquerque where New Mexico was experiencing a large outbreak.  Additionally, the facility had residents that were receiving short-term therapy and had bed availability.  In order to alleviate strain on our hospitals and given Genesis’s experience, combined with the availability of beds, New Mexico worked with Genesis to expediently convert Canyon Transitional into a COVID-only facility, making New Mexico one of only several states in the nation to create this live-saving measure. As of Aug. 27, we have seen 220 COVID positive patients successfully recover and be discharged home. 

When Canyon Transitional became the sole COVID-only nursing home in the state, the facility had cleared their findings and remain in substantial compliance with state and federal regulations.

KUNM: And one that requires patients to sign away their right to a trial by jury should anything go wrong?

ANDERSON: In regards to their entry paperwork, you’ll need to reach out to Genesis for that information.

NOTE: Genesis, in a separate email to Williams, said people are not required to sign away their right to a trial by jury in order to be admitted to their facility. But as Williams points out in the story, the people being admitted are sick with COVID and are handed a big stack of papers to sign when they get to the facility. The paperwork signing away this right is somewhere in the middle.

KUNM: New Mexico is tied with Arkansas for having the worst rate of deficiencies in our nursing homes. How is the state working on that during the pandemic?

ANDERSON: The scope and severity of deficiencies vary widely and not all citations are directly related to patient care. Simply counting the number of deficiencies does not provide an accurate picture of the quality of care provided to residents.

KUNM: Are you worried about how patients are being treated in Canyon? Has the state been checking on this during the pandemic?

ANDERSON: Of course! We are concerned about all residents in long term care settings.  The priority is to keep them safe and protected from this virus, abuse and neglect, while also helping to alleviate the effects of isolation. We have a Long-Term Care Medical Advisory Team that has and continues to provide guidance and recommendations on both levels (isolation and safety). We also meet routinely with Canyon to discuss care. And we encourage residents, family members, financial institutions, and care givers to report any issues of abuse or neglect by contacting our Ombudsman, the State Department of Health’s Division of Health Improvement, or Adult Protective Services.

DOH DHI reports:

  • The Division of Health Improvement conducted an onsite COVID 19 visit on 6/24 and the survey was deficiency free.
  • DHI conducts ongoing off-site video surveillance visits with Canyon to determine compliance with PPE, infection control protocols and resident care.
  • Any reports of resident abuse, neglect that rises to the level of immediate jeopardy are investigated within 2 days of report."