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As Pritzker administration pushes for nursing home reform, unpublished report details weaknesses

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This story has been updated.

In the early days, weeks and months of the pandemic, COVID-19 ravaged nursing homes, killing thousands of elderly and frail residents and forcing the isolation of thousands more.

Though long-term care facilities statewide locked down, forbidding outside visits from family members, staff from the Illinois Department of Public Health charged with investigating complaints of abuse and neglect should still have been going in to those facilities.

But for the first three and a half months of the pandemic, they weren’t. Pritzker’s administration admitted to that error last summer after severing ties with two IDPH officials and catching up on the 272 missed abuse and neglect complaints, substantiating 17 of them. The agency hired a former federal prosecutor to review the unsubstantiated claims.

“Our top priority as a regulator of long-term care facilities in Illinois is ensuring vulnerable Illinoisans are kept safe by those responsible for their care,” IDPH Director Ngozi Ezike said in a course-correcting news release last August. “Anything short of that is unacceptable, and our entire department is committed to getting this right as we move forward.”

In service of that goal, IDPH also paid $425,000 to an outside firm to examine what went wrong inside the agency and how its processes could be improved to prevent such a major dereliction of duty from happening again.

More than 13 months later, however, the report remains unpublished, though it’s been complete since Nov. 30, 2020. A copy obtained by NPR Illinois shows the outside review was critical of IDPH, its Bureau of Long Term Care and the Office of Health Care Regulation directly responsible for investigating nursing home abuse and neglect complaints.

But as Pritzker and some Democrats in the General Assembly attempt to overhaul how the state reimburses nursing homes with Medicaid patients — a move they say will engender more accountability and equity — the report paints a complicated picture that neither fully bolsters Pritzker’s argument for an overhaul nor the resistance from the nursing home industry warning its cash-poor facilities will close en masse.

Weaknesses within IDPH

Between mid-March and June 30 of last year, IDPH investigated zero abuse and neglect complaints within nursing homes, despite clear timelines prescribed by state law: The most serious abuse and neglect complaints are supposed to be investigated within 24 hours, while the next-most concerning tier of complaints must be investigated with a week and the last tier of complaints within 30 days.

The agency did, however, continue investigating infection control complaints during that time.

Top administrators at IDPH were made aware of the hundreds of neglected complaints on July 8 of last year, according to theChicago Tribune, and within a few weeks the agency fired its deputy director who ran the Office of Health Care Regulation and placed on leave the bureau chief for the Bureau of Long Term Care, who then resigned.

The agency then commissioned healthcare consulting firm Manatt Health Strategies to take a look inside its operations and suggest ways IDPH could improve its oversight of nursing homes. Earlier in 2020, the firm had done a three-week assessment of New Jersey’s COVID nursing home response, many recommendations of which turned into laws Gov. Phil Murphy signed by the end of the summer.

Manatt charged IDPH $425,000, according to the contract obtained by NPR Illinois, and by Nov. 5 the firm presented its preliminary findings to agency officials, per an invoice dated the following day.

Manatt’s unpublished report is critical of the way IDPH is structured, as well as the agency’s hands-off approach to regulating nursing homes — something the consultants found was also noted in a 2010 report on nursing home safety given to then-Gov. Pat Quinn.

“The [Long-Term Care] Bureau views its role as a regulator; it has not been permitted to provide [technical assistance] to facilities,” the report said. “[Long-term care] facilities are frustrated by the lack of [technical assistance] or other support.”

The report also suggested IDPH could wield more power over nursing homes that aren’t performing up to standards.

“[The Office of Health Care Regulation] has not made effective use of its authority to impose penalties,” the report said. “OHCR fines and penalties may not be sufficient to deter poor behavior, even though facilities view OHCR as highly punitive.”

Manatt found that long-term care facilities “are often able to negotiate lower fines, and some facilities view paying fines as a cost of doing business” — another repeat finding from the 2010 report to Quinn.

Without properly penalizing offending nursing homes, the report suggests IDPH has created bigger problems for itself, as some long-term care facilities are cited for the same violations multiple years in a row, including serious violations involving abuse and neglect of residents. Repeat offenders, the report said, absorb “a significant amount of OHCR’s time and resources without achieving compliance or improvement.”

For years, Illinois nursing homes have ranked the lowest among states for its staff to patient ratios, with some of the lowest staffing levels in homes that are consistently rated poorly by both CMS and patient satisfaction surveys — the same facilities that are also most likely to house the most Black and brown residents, who died from COVID at disproportionate rates compared to white nursing home residents in Illinois.

According to the national Staff Time and Resource Intensity Verification, or STRIVE Project, Illinois accounts for 47 of the 100 most understaffed facilities in the nation when comparing actual staffing levels against their target levels within STRIVE.

The persistent staffing issue is at the heart of Pritzker’s proposed overhaul to how the state pays nursing homes; the Department of Healthcare and Family Services wants to increase nursing home reimbursement rates, but have those increases tied to a facility’s staffing levels and other safety improvements.

But Manatt’s consultants found IDPH has long had the power — and has actually been obligated by state law — to enforce skilled nursing facility staffing ratio requirements, but hasn’t.

Prior to Manatt’s review of the agency, IDPH had staffing problems of its own. Top roles within OHCR had gone unfilled, and the office had a significant shortage of on-the-ground surveyors to actually investigate nursing home complaints. Part of the issue, the report said, are hiring processes “anywhere from 4 to 6 months or more,” due to union rules from the Illinois Nurses Association or AFSCME.

Perhaps unsurprisingly, the region of the state with the biggest shortage of nursing home surveyors prior to Manatt’s report was also the place with the highest concentration of facilities that consistently perform poorly: Chicago and its near suburbs. As of last fall, facilities in the Bellwood region accounted for nearly half of nursing home complaints. But the region had so much trouble keeping enough surveyors on staff, there were nearly double the number of nursing home beds per each surveyor as there should have been.

IDPH spokeswoman Melaney Arnold stressed that since Manatt began its review of the agency, IDPH has followed its recommendations with tangible results: 40 new nurse surveyors and five supervisors have been hired since September of last year, and Arnold said there are 20 more positions "currently in various stages of the hiring process." An expanded management team has also been brought on, in addition to a project manager responsible for implementing Manatt's recommendations.

The unpublished report also suggested IDPH reorganize its staff structure around nursing home oversight, as consultants said the existing “siloed” system within the agency hindered communication with others both within and outside of IDPH who also work with Illinois nursing homes. That included the state’s long-term care ombudsman and Illinois’ Medicaid program, which pays long-term care expenses for about 61% of the state’s nursing home residents.

But Arnold said the agency also followed that advice, reorganizing its Bureau of Long-Term Care and creating two new divisions dedicated to certification and licensure as well as compliance, "which includes a new unit to implement staffing ratio rules," she said.

Proposed overhaul

HFS, which administers Medicaid, last week published a report containing the Pritzker administration’s plan to overhaul Medicaid payments to nursing homes. The report contained many of the same conclusions as Manatt’s unpublished report, but IDPH was not present at the hearing where HFS presented its proposal to lawmakers, though many lingering questions about nursing home oversight could only be answered by health department officials.

The agency is proposing a $345 million increase in nursing home reimbursement rates, some of which would come from an increase to the state’s nursing home bed tax in order to attract more federal Medicaid reimbursements.

But according to the plan, not all nursing homes would see much of a boost in Medicaid payment, as they’d both be contingent on a facility maintaining adequate staffing levels and take into account a nursing home’s profit margin, preventing low-staffed for-profit homes from benefitting from the overhaul as much as facilities that don’t have as many staffing issues.

Additionally, HFS wants to redistribute funds in order to allow more Illinoisans who might traditionally be housed in a nursing home to get home care instead, or live in another type of setting with medical support.

While some nursing home groups have gotten more amenable to Pritzker’s overall proposal during months of negotiations, tying Medicaid increases to staffing levels is a non-starter for the long-term care entities that comprise the Healthcare Heroes Illinois coalition. Spokesman Paul Gaynor said it will set up certain facilities for failure.

“In the middle of a crisis when they know that staffing in every industry on the planet is a problem right now, they’re gonna punish us for something they know that we can’t do?” Gaynor told NPR Illinois. “They know we can’t do it…It just seems like it’s not in good faith at a certain point.”

Gaynor pointed to the Manatt report as evidence that even the entity that’s supposed to regulate nursing homes can’t keep enough staff on payroll to meet minimum standards, recalling that when he worked in former Attorney General Lisa Madigan’s office a decade ago, nursing home litigation his colleagues got involved with consistently revealed staffing issues at IDPH.

Further, the coalition maintains the nursing home industry is in dire straits, given the significant extra costs facilities faced last year purchasing personal protective equipment and other modifications for their homes, in addition to the legal liability the pandemic has exposed the industry to. After Pritzker last year reversed his COVID executive order granting long-term care facilities legal immunity, personal injury law firms filed a wave of litigation.

If those cases are won, they’ll also be more lucrative than in the past after Democrats passed and Pritzker signed legislation this spring allowing for pre-judgment interest to accrue on personal injury and wrongful death lawsuits beginning the day cases are filed. Proponents said it would deter companies from stalling in court after getting sued, but opponents claim it’s a giveaway for trial lawyers who tend to fund Democratic campaigns.

Gaynor said it’s a harbinger for mass nursing home closures. Just last week, St. Joseph’s Home of Springfield announced it will close in December. The non-profit home cited staffing issues at the facility, which has been owned and operated by the Sisters of St. Francis of the Immaculate Conception for more than 100 years.

“This is not something we want to do,” congregation President Sister Kathleen Ann Mourisse said in a statement. “We do not have enough Sisters to continue this beloved ministry. Many, if not most, religious communities in our country are also facing the same dilemma. In addition, the climate created by COVID-19 has contributed to both a reduction in the resident census and a severe staffing shortage, not only at St. Joseph’s but throughout the healthcare industry.”

Gaynor’s group, as well as the influential Healthcare Council of Illinois, maintain they’re not saying the industry shouldn’t be looked at critically or be subject to reform. However, in the middle of an ongoing pandemic when nursing homes are facing increased costs and fewer residents paying pull freight — as opposed to Medicaid — a major overhaul could decimate Illinois’ long-term care industry.

In a contentious hearing on HFS’ proposal last week, a few Democratic lawmakers were upset with HCCI’s executive director, Matt Pickering, who repeatedly voiced his opposition to tying Medicaid increases to staffing levels. When Pickering mentioned his group had recently sent a counterproposal to the working group but hadn’t heard anything, State Rep. Kathy Willis (D-Addison) dressed him down.

“How dare you be upset that you didn’t hear anything because you gave a report three weeks ago,” Willis said. “We’ve been talking about this for six months…I didn’t hear anything from you other than, ‘Please don’t stop our money flow.’”

But Pickering told NPR Illinois it’s a misconception that for-profit nursing homes are flush with cash. And even if there is a conversation to be had about the merits of non-profit nursing homes versus for-profit facilities, Pickering said his industry is just trying to survive the pandemic and serve its residents.

“[HFS’] plan essentially would shift dollars, number one, away from the high-Medicaid homes that need it the most and residents that need it the most…And we desperately need it,” Pickering said.

Business models, Medicaid and race

But there are observable differences between Illinois’ non-profit nursing homes and for-profit homes, both before and during the pandemic.

A WBEZanalysis last year found that, in aggregate, for-profit nursing homes in Illinois had more COVID infections and deaths per bed than non-profit facilities.

Of the nearly 700 skilled nursing facilities for which HFS had staffing and other data, 79% are operated for-profit, and the agency contends that all of Illinois’ low-staffed skilled nursing facilities are run for profit.

Further, HFS said, nearly half of those for-profit nursing homes are under-staffed, and “high-Medicaid for-profit facilities comprise 95% of all understaffed facilities in the state.”

Both the Manatt report and HFS’ plan point out the disparities in quality of care for Black and brown nursing home residents in Illinois, compared with their white counterparts.

“21% of Illinois [skilled nursing facilities] have a 1-Star CMS quality rating, which is the second highest percentage of 1- Star facilities amongst peer states,” the Manatt report said. “These facilities are disproportionately located in counties with racially diverse populations and have a disproportionate number of Medicaid beneficiaries and Black/African-American residents.”

And during the pandemic, HFS said those residents were more likely to die.

“Black and Brown customers were disproportionately impacted by disease and death because they were more likely to reside in poorly staffed facilities and in ‘ward’ rooms containing three or four beds per room,” HFS’ report said. “In fact, the Department of Healthcare and Family Services analysis indicated that at least 40% more Black and Brown Medicaid customers in nursing facilities perished than would be expected based on COVID-19 mortality rates among White nursing facility residents.”

But representatives from Illinois’ nursing home industry pushed back on drawing straight causal lines from sharing space with more than one roommate to being more likely of dying from COVID-19, and pointed out that it was state and federal regulators who approved those three- or four-bed rooms in the first place.

Copyright 2021 NPR Illinois | 91.9 UIS. To see more, visit NPR Illinois | 91.9 UIS.