DiNapoli: State health department should improve enforcement of nursing home violations

Fines delayed for up to six years, nursing homes cited repeatedly for problems with limited consequences

The state Department of Health needs to fix problems and delays with how it is assessing fines to nursing homes after violations are found, according to an audit released today by state Comptroller Thomas P. DiNapoli. While DOH is frequently inspecting nursing homes and acting quickly on serious complaints, auditors found some facilities had repeated violations that escalated into more serious problems with limited consequences.

This audit is part of a series examining issues impacting New York's senior citizens. In December, DiNapoli released an audit that called for more oversight of providers of adult day care services.

"The state health department needs to strengthen its enforcement policies to better protect the health and well-being of nursing home residents across the state," DiNapoli said. "DOH is not using the full array of enforcement actions available, and this trend has recently worsened, taking the teeth out of a significant deterrent to unsafe practices and conditions.

"DOH officials deserve credit for their timely inspection of nursing homes, but more must be done. Families need to know their loved ones have safe accommodations and providers are being held accountable when problems are found."

DOH oversees nursing home facilities in New York and acts as an agent for the federal government's Centers for Medicare and Medicaid Services in monitoring quality of care in nursing homes. DOH is responsible for ensuring nursing homes comply with federal and state regulations, which establish standards governing their operations.

DiNapoli's auditors, looking at the period of Jan. 1, 2012, through Sept. 17, 2015, found DOH met quality measures for conducting surveys in accordance with federal regulations, including assessment of the scope and severity of citations. Between calendar years 2007 and 2014, DOH generally inspected all nursing homes within the required 15.9-month cycle and had a statewide average of 11.8 months between surveys.

The same diligence was not being applied to the collection of fines, however. Auditors discovered DOH does not use the full array of enforcement actions available to it, choosing to not levy fines for categories of violations that account for almost 85 percent of the problems found. DOH only imposes fines if it finds a problem has already resulted in actual harm to an individual or is currently placing people in immediate jeopardy - less than 4 percent of all violations.

Even when fines are imposed, problems with DOH's enforcement procedures have resulted in delays of up to six years between when a violation is cited and a fine is imposed. Auditors analyzed data from calendar year 2014, and found the average time between when deficiencies are first identified and the issuance of fines was nearly four years. This compares to just six months for fines issued in 2007. Further, between January 2014 and July 2015, DOH collected only 12 fines totaling $152,000. This compares to $628,000 in fines levied in 2011.

DiNapoli's auditors also noted that, prior to 2008, the maximum fine allowed for a violation was just $2,000 per incident - even for those that result in serious physical harm or death. The law was amended to allow DOH to assess a $5,000 fine for some repeat violations and a $10,000 fine if a violation results in serious physical harm to a resident, but that change is slated to expire in April 2017. Unless lawmakers take action, the maximum fine for any violation will revert to $2,000 - less than the equivalent of one week's revenue derived from one nursing home bed.

Sen. Kemp Hannon, chair of the Senate Health Committee, said, "The department should be moving to collect fines that have been assessed as quickly as possible."

Assemblyman Richard Gottfried, chair of the Assembly Health Committee, said, "New York really needs to step up nursing home enforcement. We have excessive use of psychotropic drugs, high levels of serious bedsores, and inadequate staffing. Our frail elderly deserve better."

Richard J. Mollot, executive director, Long Term Care Community Coalition, said, "We are truly grateful to state Comptroller DiNapoli for shedding light on this serious problem. Far too many of our nursing home residents suffer needlessly due to substandard care and neglect. And, far too often, New York taxpayers pay for services that are subpar or worthless. We join the state comptroller in urging the state Department of Health to take the swift and meaningful action needed to improve accountability."

DiNapoli's auditors also found:

•DOH has only one part-time employee assigned to process enforcement referrals and prepare enforcement packets;

•The agency routinely waits at least six months before processing enforcements in the event fine assessments are amended or withdrawn as a result of appeals. However, it does so at the expense of timely management of other enforcement activities; and

•DOH uses a database that, by its staff's own admission, is fragmented and incomplete.

DiNapoli recommended DOH:

•Eliminate the backlog in enforcement activity and maintain timely processing of future assessments of fines;

•Take steps to initiate the assessment of fines earlier to better align survey results with the assessed penalty;

•Develop a single, more comprehensive system to track and monitor all enforcement actions; and

•Consider assessing fines for citations covering lower-level infractions, especially for those facilities that demonstrate a pattern of repetitive citations.

Department officials indicated they have taken steps to implement the recommendations. DOH's comments can be read in the audit. Read the report at http://www.osc.state.ny.us/audits/allaudits/093016/15s26.pdf.