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By Thomas Goldsmith
A bill headed for Gov. Pat McCrory’s desk would eliminate the state’s Penalty Review Committee, which, since 1987, has held public hearings and proposed fines and sanctions against nursing homes and assisted living centers found to have violated state laws and regulations.
The action brought a heated response from advocates for older people, including Sharon Wilder, who had been state ombudsman for long-term care residents for 18 years before she retired this year.
“When facilities are not even meeting minimum standards and people are dying, sometimes horrible deaths, there needs to be a public airing,” Wilder said Wednesday. “I was just shocked about it and feel really badly about it for the long-term care residents and their families.”
The changes, which had been sought by industry lobbyists, also modify standards for reporting and penalties, and alter the process for finding and penalizing bad actors.
As passed, the bill, House 667, creates a high barrier for “substantial risk,” a standard used to assess penalties, including closing facilities, in cases where residents are harmed or other violations take place.
“As used in this section, ‘substantial risk’ shall mean the risk of an outcome that is substantially certain to materialize if immediate action is not taken,” the bill reads.
The committee had brought public attention to many cases in which long-term care residents wandered off to their deaths; were given fatal, incorrect doses of medicine; or died through other lapses in their care. Facilities also were assessed penalties for many smaller-scale violations, which wound up on their public records.
Long-term care industry lobbyist Lou Wilson, who supports the measure, said Tuesday that the Penalty Review Committee had fallen behind in its work and that the Department of Health and Human Services, whom it advised, could handle the penalty process more efficiently.
DHSR can change the amount and nature of the committee’s recommended sanctions.
However, advocates for older people including Marlene Chasson, a former president of the nonprofit Friends of Residents in Long Term Care, joined Wilder in criticizing the act as limiting public access to the process.
“To do away with the Penalty Review Committee is a disservice to adult care home residents, their family members and the public at large,” Chasson, who helped establish the committee, said in a statement Wednesday. “While the penalties were usually not high enough to bring about lasting improvements in care, they did serve to alert future residents and the general public to the facility’s problems.
“It is unfortunate that the General Assembly chose to enact House Bill 667, which clearly demonstrates the influence of the adult care home industry.”
House BIll 667 was introduced in April as a measure to make certain that people with health insurance were able to choose their own athletic trainers. But it was gutted and rewritten earlier this month and quickly moved through both houses. It would become effective with McCrory’s signature.
Public meetings replaced by internal decision-making
That means the 15 adult care homes scheduled to have infractions dealt with at the already planned July 14 Penalty Review Committee will likely have their cases reviewed out of the public view by the Division of Health Services Regulation of DHHS.
Facilities on the schedule include those such as Heritage Care of Rocky Mount, which has operated with a zero rating on the state’s four-star ranking system since December.
The law also provides that facilities that have notified state regulators, corrected conditions that led to a citation and carried out other steps can escape without a penalty being attached to their records. In effect, it allows facilities to self-regulate, exempting them from being cited if they can make the case that they fixed a problem before state regulators showed up.
Under the current system that faces demise, facilities go through a thorough procedure of county investigation and state review before a potential violation gets the Penalty Review Process, Wilder said. The committee, composed by statute of a broad range of stakeholders, has allowed family members and other advocates to speak in pending cases, as well as hearing from state investigators and facility representatives.
“By the time it gets to the state, it’s pretty egregious,” Wilder said. “This will shut down access to the family and the residents.”
“A place for lawyers to come to take notes to sue”
In the past decade, the committee had imposed penalties of as much as $30,000 on homes for instances in which a resident died and the facility was found at fault. However, the penalties ultimately were reviewed by DHHS and fines and sanctions were often lowered.
“Where at one time it had been a good committee, it had become a place for lawyers to come to take notes to sue,” Wilson said.
Bill Lamb, executive director of Friends of Residents, said that despite the committee’s faults, it gave people concerned about the people in these homes a chance to get detailed information about living conditions and potentially dangerous practices.
“There ought to be some public transparency for this,” Lamb said Tuesday. “If it’s my mother who’s having a problem, who do I talk to?”
Advocates for older people got no notification that changes in the law were coming, Lamb and Wilder said.
Wilson said information on assisted living centers and nursing homes would still be accessible from the state.
“Anybody can request any records that they want, so that shouldn’t be a problem for anybody,” she said.
Lamb disagreed: “I would argue that if we are going to give up the Penalty Review Committee, what are other measures we can use to have transparency?”[box style=”2″]
To learn more
The state ombudsman works for the state Division of Aging and Adult Services, under the Department of Health and Human Services:
The state Division of Health Service Regulation, also a part of DAAS, regulates North Carolina long-term care homes, among other facilities.
To check the record of a North Carolina assisted living facility, visit: www2.ncdhhs.gov/dhsr/acls/star/search.asp[/box]
Correction: The story originally stated the Penalty Review Committee was initiated in 1989