Regarding the tragic shooting deaths of 11 people in a North Carolina nursing home on Sunday, March 29th, there is little that can be said.  

We offer our grief.  And, our prayers.  

We are in the business of solace and healing.  Let us hope the families of the victims will find both.

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The Secret of NIMS

March 28, 2009

This past week I attended the Life Services Network annual meeting in Chicago.  Honestly, it was a great conference, and many of the things I learned, whether in the sessions themselves or the hallways, receptions, drinks with colleagues, etc., will likely find there way, in one form or another, into this blog.  One notion that particularly caught my attention was an idea that has apparently been coming down the pike for quite some time, but with the stimulus money, finally might have the chance for real government backing and implementation.  In its simplest terms, state departments of public health are considering including nursing homes in regional emergency response teams, much like hospitals are now. 

What interested me about this development is really two things: 1) I know many of my colleagues, especially those that work in skilled nursing facilities, already work hand in glove with their local emergency management agencies.  So, of course, I was left to wonder what shape this involvement would take.  And 2) the plan to include nursing homes in a fundamental way into the emergency response plans will require training in the government’s emergency response system, the  National Incident Management System or NIMS.

The official handbook to NIMS describes its origin and usefulness in this way (link here): Since the September 11, 2001, attacks on the World Trade Center and the Pentagon, much has been done to improve prevention, preparedness, response, recovery, and mitigation capabilities and coordination processes across the country. A comprehensive national approach to incident management, applicable at all jurisdictional levels and across functional disciplines, would further improve the effectiveness of emergency response providers1 and incident management organizations across a full spectrum of potential incidents and hazard scenarios. Such an approach would also improve coordination and cooperation between public and private entities in a variety of domestic incident management activities.

The actual training in the NIMS system consists of some on-line, work at your own pace training with some short term (one hour) classroom training, and, at higher levels, or for executive management, full day, multi-day training.  Although, NHAs, as a profession, suffer from an ever expanding job description, I think it is a good idea to include nursing homes into the emergency response mix.  The simple fact is that aside from hospitals (and in someways superior to hospitals), nursing homes are the go-to infrastructural asset in the face of a large emergency.  No other type of facility has the concentration of health care technology, personnel and space to serve the public in time of great need.  Therefore, I like the idea that may be coming to a state near you; NHAs trained in the decision making process the government has created, assisting their communities through the careful application of their expansive expertise.

As reported on McKnights.com, the Patient Safety and Abuse Prevention Act of 2009 (PSAP) was reintroduced to the Senate this week.  The proposed law would expand upon a seven state pilot program that provides funding for nursing homes to conduct Federal Criminal Background checks on all nursing home employees. 

Like many bills introduced in this first Congressional session of the Obama administration, this bill has been around the block a time or two.  In its previous incarnation, the PSAP included a funding provision to conduct federal criminal background checks on potential residents as well as employees, but it appears that provision was dropped to make this new bill more palatable.  This is probably a good “single-subject” modification, as background checks for employees and residents are truly different topics.  And, screening employees with a Federal Criminal background check is too important for the bill to be defeated based on a parallel, but unrelated, analysis. 

To illustrate the point, consider the following from an article in Modern Health Care:

 “Forty-one states require criminal background checks on most aides prior to employment, but only half of those    require criminal background checks at the federal level. In 2004, state agencies reported that they received more than 500,000 reports of elder and vulnerable adult abuse.”

This new version of the PSAP is really a funding bill, more than a mandate.  Essentially, it would open up money, in the form of grants, tying with said money an admonition to conduct checks on all current and future employees, to nursing homes meeting a certain set of criteria (essentially those receiving Medicare money). 

Personally, I am an advocate for this type of bill.  Sure, there is already a huge amount of processin the Long Term Care hiring process.  From CNA databases, state level criminal background checks and some Federal checks, hiring is a costly, and time consuming process.  But, two arguments win out on the other side: 1) Such checks really will keep elders in LTC safe, or at least safer, from criminals moving from one state to another to work in LTC; 2) from a legal liability standpoint, such checks create a prima facie argument that a facility was not negligent in hiring. 

Negligent hiring lawsuits have made hay in the past few years, and not only in health care.  One benefit from so much mandated process in when hiring someone for LTC, is that should the worst happen – – should an employee harm a resident, the facility can insulate itself from the inevitable lawsuit by pointing out that a) the state and federal government require a lot of work from employers before they can hire an employee and b) by doing all of that work, the facility has done everything reasonable within its power to prevent just the sort of harm that has happened.  The failure of this duty is what is at bottom of negligent hiring suits.

So, I welcome the reintroduction of the Patient Safety and Abuse Prevention Act.  Hopefully, this bill will move swiftly through Congress and the president’s desk.   The money from this bill will increase resident safety, and afford LTC providers another shield against the sword of negligence suits.

The working life of a nursing home administrator can be a tough one.  There are innumerable tasks that fill up the days (and nights), and one drawback of the job is that we often suffer under a woefully underdeveloped job description.  In an effort to put out today’s fires, we can miss some pretty important pieces of information that come down the pike.  For example, I only recently got around to reading the AAHSA (American Association of Homes and Services for the Aging) report that came out this past summer, “Broken Beyond Repair: Recommendations to Reform the Survey and Certification System.” 

Life Services Network hosts a permanent link to the full report (here).  If you, like me, have been too busy to read it, I recommend giving it a glance as soon as you can.  Especially with the regulatory change winds blowing as hard as they have been in recent months, it is important for on-the-ground LNHAs to understand the issues involved so we can support the advocacy and lobby groups when they make their arguments.

At any rate, the report contains a number (31) of specific recommendations for improving the current certification and survey process (as well as its overall conclusion of OBRA ’87 needs to be completely revisited, and the surv/cert process overhauled).  One in particular has caught my imagination.  It reads as follows:

 

AAHSA should encourage CMS to revise the Nursing Home Compare Web site so its language is less pejorative and the data it presents is easier to understand and includes a full explanation of survey results. This can be accomplished by giving providers the opportunity to elaborate on the Statement of Deficiencies posted on Nursing Home Compare by adding specific facts related to its cited deficiencies in a standardized format established by CMS.

A major complaint I’ve heard from LNHA colleagues and read in the listserves w/r/t the Five Star Component to Nursing Home Compare is that the website does not offer enough explanation of the results, and that the results do not indicate true quality (i.e. how a resident is actually taken care of – – the compassion factor).  The above recommendation could be an excellent step towards meeting this complaint.

Imagine if you were able to address the deficiency as noted now by a  number of stars in a graph through a short narrative, properly formatted for consistency and ease of use.  I know I would feel better about my facility’s star rating (even though already good) if I could directly address some of the viewer witha  paragraph.  Further, this sort of collaborative back and forth – – adversarial tension between Surveyor and facility – – could result in a dialogue with residents and their family members regarding the appropriateness of the survey results as reported on CMS Nursing Home Compare.  Such a dialogue would help us get to a better regulatory tool (RE: Survey Process), which is the point of OBRA ’87 in the first place.

Indeed, it could go farther than just the facilities having the opportunity to comment on the Survey and Certification results as posted on Nursing Home Compare.  Would it not be empowering to residents and their families if the CMS site allowed them to post their own comments for others to see?  I think it is an idea worth exploring.  If the regulators’ survey results, the facilities’ comments, and the residents and their families’ opinions were collected in the same place, I think the true relative worth and value of a nursing home would out – – rewarding the good and encouraging the bad to improve.  What a lofty, but possible goal.

 

 

I am myself a transplant to the long term care industry.  As is clear from many of these posts, and the focus of my arguments, my training is in the law, with a particular emphasis on health law and health care administration.  So, if it is fair to say, I think I am intellectually well-equipped to work as a nursing home administrator, but I have not had the emotional experience in LTC that many of my administrator peers have had.  

To try to bridge this gap, I read the book Nobody’s Home: Candid Reflections of a Nursing Home Aide by Thomas Edward Gass.  Mr. Gass is himself a transplant to the long term care industry.  His training is in psychology, and before becoming a CNA, he was a student of transcendental meditation, traveling widely around the world.  

What I found interesting, and ultimately most useful, about Mr. Gas’ book is his unabashed way of describing his own reaction to the difficulties of LTC.  He goes into detail about how difficult it is to simultaneously be his resident’s caretaker, friend, surrogate child, scold, and advocate.  The nurses’ aide position is one that is, tortuously at times, both heartbreakingly intimate, and necessarily removed.  

From my first day in this industry I have heard tales about an administrator who put herself into the position of the CNAs or the residents for a time in order to more fully understand the operation of her facility.  Likely such stories are apocryphal, but even if they are true, such a strategy is simply impracticable for most of us.  However, Nobody’s Home is a good introduction to such an experience, and I would recommend it to any NHA looking to understand the emotions of our jobs.

Representative Linda Sanchez (D-CA) has reintroduced the Fairness in Nursing Home Arbitration Act.  This act seeks to ban pre-dispute arbitration agreements, even if the arbitration agreement is not required for admission. The parties could agree to arbitration only after a dispute arises.   When the bill was last introduced, and defeated, it included Assisted Living facilities as well as Skilled Nursing Facilities, but the text of the bill’s most recent iteration is not yet available for public review.  

Arbitration agreements have been circling back again and again as one of the most contentious debates in LTC Administration.  From a legal standpoint, arbitration almost assuredly means faster recovery time, and less cost for both plaintiff’s and defendants alike (or complaintents and answerers in the parlance of some Alternative Dispute Resolution folks).

 The at bottom question can be phrased like this: is LTC different from other business such that the only pathway to remedy must necessarily be one through the courts?  

Opinions are myriad, but I will be interested to see, and write about, the debate on Rep. Sanchez’ bill.