Errors, deception preceded deadly nursing home covid outbreaks, inspections show

By: - January 25, 2022 4:00 am

The Embassy of Newark in Licking County. Photo from Google Maps.

Regulators found infection control violations in at least three dozen Ohio nursing homes placed the health and safety of patients in “immediate jeopardy” during the COVID pandemic, an Ohio Capital Journal investigation has found.

Between allowing nurses with active COVID-19 infections to report for their care duties, placing infected residents in shared rooms with uninfected roommates, flouting preventive measures like masks and quarantines during outbreaks, and other preventable errors, inspectors found several instances of infection control failure from nursing homes that preceded massive and deadly outbreaks during the pandemic.

The conduct earned the facilities “immediate jeopardy” status, leading to steep fines from the Centers for Medicare and Medicaid Services and sometimes forcing facilities to stop admitting new patients until they corrected course.

Some of the allegations go beyond negligent conduct and toward deliberate acts. In two nursing homes, inspectors for CMS claimed facility staff sent fake samples into the lab or backdated test results to give the appearance of more robust responses to outbreaks at their early stages.

At least 84 residents died in connection with the alleged infection control violations at 13 Ohio facilities during the pandemic.

“They should have been prepared and knowledgeable about what they could have done to prevent these injuries and deaths,” said Erin Pettegrew, the state’s deputy long-term care ombudsman at the Ohio Department of Aging, who reviewed reports obtained by the OCJ.

“It’s an incredibly contagious disease and unprecedented, of course, but these examples were systemic failures on the part of the facility to protect their residents.”

It’s an incredibly contagious disease and unprecedented, of course, but these examples were systemic failures on the part of the facility to protect their residents.

– Erin Pettegrew, Ohio Department of Aging

While CMS produced sometimes damning reports detailing findings of egregious deficiencies in care, the reports are difficult for the public to find and attract little attention from the public or policy makers. They’re anonymized to protect patient privacy and generally not reader-friendly documents.

Experts said in interviews for this report that the quality incentive metrics for homes established in state law is easily gamed, allowing substandard nursing homes to claim incentive payments.

“If you set the bar so low that everybody can meet it, then you haven’t differentiated anyone. You’re not paying for quality; you’re just paying everyone for checking a box,” said Jane Straker, director of research at the Scripps Gerontology Center at Miami University.

Deadly mistakes

Take the Embassy of Newark, in Licking County. On June 25, 2020, a nurse worked a shift on the nursing home’s quarantine ward. Five days later, she took a COVID-19 test, which came back positive the next day, according to a CMS inspection report.

The facility began shuffling patients around the facility. Four residents who were close contacts of the nurse were not tested, despite known chronic health conditions, but were moved out from the quarantine unit. All of them were allowed to remain in shared rooms with other residents after their exposure. A daughter of one of the four told CMS she was not informed the facility had a COVID-19 outbreak or that her parent had been exposed to a positive case (the resident died July 25).

The facility's failure to immediately quarantine and test those residents likely contributed to the COVID-19 outbreak that spread throughout the facility infecting 71 residents with COVID-19 resulting in 20 deaths.

– Centers for Medicare and Medicaid Services inspection report

The facility paid a $459,000 fine to CMS, according to a letter obtained in a records request. The incident received no apparent public attention. The facility has a 1 out of 5 star rating on Medicare’s online nursing home comparison tool, but there are no specifics of the deadly blunders.

Facility owner Embassy Healthcare, which operates dozens of facilities in Ohio, Pennsylvania and Florida, did not respond to inquiries.

The network’s Hocking County nursing home, Embassy of Logan, also received an immediate jeopardy citation in November 2020. Inspectors said six residents at the facility who tested negative for COVID-19 were either left in or placed in a COVID-19 unit with six infected residents.

“[Embassy of Logan’s] failure to effectively implement infection control practices likely contributed to the COVID-19 outbreak that spread throughout the facility infecting 44 residents with COVID-19 resulting in two deaths,” CMS wrote.

Its owners paid a $203,000 fine, after a 35% reduction for agreeing to waive their right to an administrative hearing.

At Columbus Colony Elder Care, an activity assistant worked three shifts, interacting with at least 65 residents in April 2020, according to CMS. He tested positive soon thereafter, and inspectors found no evidence he was screened for COVID-19 symptoms or exposure before his test, or that staff traced his contacts afterward. Sixty-one residents wound up contracting COVID-19 over the next month. Fifteen died. Twenty-seven employees contracted the disease as well.

CMS fined the facility $152,000 after a 35% reduction for agreeing to waive its right to a hearing. Its operators did not respond to inquiries.

At ProMedica Skilled Nursing and Rehab Willoughby, a nurse practitioner was allowed to enter the building Aug. 7, 2020, to see residents after indicating on an employee screening tool that she was awaiting test result due to either an exposure or symptoms, according to CMS. Regardless, she and two x-ray technicians were both allowed to work in resident care areas while awaiting results.

The first cases in the outbreak emerged Aug. 10. In the back half of the month, nursing home operators failed to identify 13 staff members who indicated they had symptoms related to COVID-19, according to CMS. In September, they missed another 10 symptomatic staffers.

Of 91 residents in the home, 71 contracted COVID-19 between Aug. 10 and Sept. 22, 2020. Fourteen of the residents died of the disease. ProMedica paid about $407,000 in fines. ProMedica, which operates a network of hospitals and nursing homes, chose to cooperate with the survey process and pay the fine instead of spending the time and resources to dispute the survey, according to spokeswoman Julie Beckert. She said facility records indicate employees who reported symptoms or exposures were put on leaves of absence.

She said the facility has reviewed training and infection protocols since the survey.

“At ProMedica Skilled Nursing and Rehabilitation center in Willoughby, we know that the frail and elderly are especially susceptible to the COVID-19 virus and its variants,” she said. “When it is prevalent in our community, it will also be in health care settings such as ours. Throughout the pandemic, we have been focused on doing everything possible to keep our patients and employees safe.”

Besides leaving COVID-19 patients in rooms with COVID-negative occupants during an outbreak, Crestview Rehabilitation and Skilled Nursing prescribed to all residents — regardless of exposure — a “preventative cocktail” of vitamins and antibiotics. The drugs are not approved for use against COVID-19 by the FDA, but the facility’s medical director told CMS he ordered the drugs based on his “extensive research” and because he claimed they worked well in Europe. Some 173 residents caught COVID-19 in the ensuing outbreak, nine of whom died. CMS fined the facility $193,000.

Crestview Rehabilitation and Skilled Nursing facility. Source: Google Maps street view

‘Falsified’ tests

CMS accused two Ohio nursing homes of backdating and mislabeling lab samples to give the appearance of a more robust effort to respond to emerging outbreaks.

Montefiore of Menorah Park, a Beachwood facility, was found to have failed to properly quarantine residents and respond to a positive case. One nursing assistant told inspectors she was ordered to “float” between a COVID-negative unit to a COVID-positive unit without changing her protective gear, according to CMS. This “likely contributed” to an outbreak of 27 cases, six hospitalizations and three deaths of residents, according to CMS.

Additionally, the regulators alleged that the director of nursing and assistant director of nursing failed to collect nasal samples from affected residents and sent “falsified” samples to the lab in October 2020. The facility was fined $80,000 after a deduction of an unspecified size for financial hardship.

“This falsification in testing, done by [the two employees] placed the facility in a situation which delayed identification of COVID-19 positive results and had the potential to delay proper infection control measures to prevent the spread of COVID-19,” the CMS report states. “Upon re-testing on 10/17/20, 22 residents, many of whom displayed symptoms, tested positive.”

Several lawsuits were filed against the home on behalf of deceased residents. The Cleveland Jewish News reports that the home’s former director of nursing, Ariel Hyman, is scheduled for a hearing later this year in which a state board could rescind his license to work as a state nursing home administrator. Montefiore did not respond to inquiries.

At Blue Stream Rehab and Nursing in Richfield, CMS alleged a nurse tested positive for COVID-19 in January 2021 and showed up to work on COVID-positive and COVID-negative units alike. A nurse’s assistant who tested positive did the same.

When inspectors entered the facility, no one checked their temperature or otherwise screened them — the receptionist was out with COVID-19. One resident died, four were hospitalized, and 23 were infected in the end.

Staff, meanwhile, said to inspectors that they were asked to pre-date their testing vials to give the impression they had responded more robustly to the outbreak.

Blue Stream’s owners eventually paid about $69,000 in fines to CMS after a 35% reduction for agreeing to waive its right to a hearing and another 50% for financial hardship. Its operators did not respond to inquiries.

Industry woes

It’s no easy time to operate a nursing home.

The facilities care for patients who are older, have weaker immune systems, and often manage complicated combinations of conditions that weaken the body’s response to vaccination.

“At the time of these surveys, COVID-19 vaccines were either not approved or not widely available,” said Gregory Nicoluzakis, an attorney with Saber Healthcare, a multistate operator that owns two Ohio nursing homes that received immediate jeopardy citations.

“Each facility cooperated with the survey process and works closely with the appropriate governmental agencies to follow all local, state, and federal guidelines and regulations,” Nicoluzakis said.

Nationwide, nearly 130,000 American nursing home residents have died of COVID-19, according to CMS. About 2,300 employees died of the disease as well.

Meanwhile, the industry is navigating a staffing crisis that predates, though has been exacerbated by, the pandemic. States including Minnesota, New Jersey and New York activated their national guards to help nursing facilities. The American Health Care Association, an industry trade group, says nursing homes lost 234,000 jobs during the pandemic.

Pete Van Runkle, an industry lobbyist and director of the Ohio Health Care Association, didn’t respond to an interview requests including written descriptions of the inspection reports detailed in this article.

Late last year, as as part of a $4.18 billion appropriation of federal pandemic aid, state lawmakers gave $300 million to nursing homes on the condition they go to care workers (for raises or bonuses) and not executives or staffing agencies. The bill doesn’t impose any quality or infection control requirements on the facilities.

Like staffing issues, infection control problems aren’t new or unusual to the industry.

In May 2020, the U.S. Government Accountability Office, an internal watchdog, reviewed CMS’ oversight of infection control regulations at nursing homes leading up to the pandemic. Between 2013 and 2017, a whopping 82% of the nation’s 15,500 nursing homes received an infection control citation. These are mostly, but not always, minor deficiencies.

Of all the roughly 13,300 homes that received one citation, about half of them received multiple citations in consecutive years. About 35% of them had deficiencies cited over three or four consecutive years.

“This is an indicator of persistent problems,” GAO auditors wrote.

Highbanks Care Center in Columbus is a 56-bed nursing facility with short and long-term rehabilitation services. Photo by freelance photographer Graham Stokes.

‘We couldn’t get facility staff on the phone’

Medicaid, a state and federally-funded public health insurance program for poor Americans, pays for members’ nursing home care and is a major revenue source to facilities. Loren Anthes teaches health policy at Ohio University’s college of medicine and advocates at the Center for Community Solutions. He said Ohio policymakers have consistently undervalued strong quality incentives in Medicaid policy, rendering shortfalls in care unsurprising.

“I don’t think there’s a lot of transparency about what the (quality incentive Medicaid) reimbursement goes toward, how it works, and its relationship to quality,” he said.

He, like other experts, said families and residents should know of these alleged failures when CMS publishes its reports. That’s not always the case, according to Pettegrew, from the state ombudsman’s office.

She said inspectors don’t always solicit feedback from residents, as they’re supposed to. Additionally, residents and their families aren’t getting clear information either when breakdowns in care occur.

“We found that during the middle of the pandemic, we couldn’t get facility staff on the phone, let alone get proactive communication about an outbreak,” she said.

Even within the Ohio Department of Health, officials struggled to identify homes that received “immediate jeopardy” findings. The department declined an initial public records request for such reports, claiming this would require ODH to “conduct research to identify information responsive to your request,” which is not required of state agencies under Ohio public records law.

However, in an “attempt to be cooperative,” spokeswoman Alicia Shoults provided a spreadsheet of nearly 900 infection control violations ranging from the most minor to immediate jeopardy. The immediate jeopardy reports mentioned in this article could only be identified after a separate public records request to CMS and a database of CMS reports built by ProPublica, a nonprofit investigative journalism outlet.

Holly Holtzen, state director for the AARP, said she would like to see more transparency and accountability in Ohio’s nursing home system. The public dollars that fuel the industry should come with “guardrails” to make sure badly performing homes stop receiving public profits.

“We have asked for accountability in how these funds are being spent,” she said.

‘They have perfected the art of keeping politicians happy’

The state legislature has done little to address infection control problems in Ohio nursing homes and passed legislation that critics say will worsen them.

Mere months into the pandemic, lawmakers raced to pass legislation protecting health care providers and general businesses from lawsuits related to COVID-19. Exactly 419 lobbyists registered to pull and prod lawmakers one way or another, including 15 from two nursing home trade associations alone. It was the second-most lobbied bill of 2020, according to a state report.

House Bill 606 created, between its June 2020 passage and September 2021, criminal, civil and professional immunity of varying scopes for health care providers (including long-term care facilities).

The immunity blocks would-be plaintiffs from prevailing against the facilities in negligence claims. Instead, they’d need to meet a higher legal standard to prove the facilities acted either with “intent” or with “reckless disregard” to the consequences. In another blow to potential plaintiffs, the law states that a government order, recommendation, or guideline “shall neither create nor be construed as creating a duty of care upon any person” — meaning federal guidelines on COVID-19 protocols can’t be used to show how facilities should have reacted.

“A presumption exists that any such government order, recommendation, or guideline is not admissible as evidence that a duty of care, a new cause of action, or a substantive legal right has been established,” the law states.

The Ohio House, after months of effort, passed a bill last year that would ban certain vaccine mandates from employers. Quietly tucked into the legislation: an extension of the immunity, retroactively made effective to September 2021 and lasting through June 2023. The bill is under consideration in the Senate.

In March of 2022, a new law will take effect allowing residents or families (with consent of residents) to place cameras in a resident’s room in a nursing home to monitor for abuse. The bill’s bipartisan sponsors said it was “especially important” during the pandemic given nursing homes’ restrictions on visitation.

“At this time especially, we need to be doing more for the aging citizens of Ohio, and we believe this is an important first step,” said state Sens. Andrew Brenner and Nickie Antonio, introducing the bill to lawmakers last year, saying: “This legislation may bring families closer and could very possibly save lives.”

Federal prosecutors are investigating state lawmakers and regulators in what they call the largest political bribery scandal in state history. The prosecution traces to lobbying and bribery allegations related to utility companies. Besides the erstwhile House Speaker, prosecutors indicted Neil Clark, a powerful GOP lobbyist. He died by suicide in early 2021, but drew a line between the scandals in a posthumous memoir.

“The (Ohio Health Care Association’s) access to soft or dark money is outperformed only by the utility companies,” he wrote. “OHCA’s ability to solicit individual members’ corporate accounts, the OHCA is the envy of most. If FirstEnergy were a bank, then the nursing home industry is like having 500 ATM machines located around the state. Walk up, punch in a number and take out what you want. They have perfected the art of keeping politicians happy.”

Between 2016 and 2020, the industry poured some $6.1 million into state politics through three industry PACs, one nonprofit linked to the OHCA, and facility operators themselves. Hundreds of thousands of dollars from OHCA went to a nonprofit called Generation Now, which pleaded guilty last year in connection with the scandal.



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Jake Zuckerman
Jake Zuckerman

Jake Zuckerman is a statehouse reporter. He spent three years chronicling the West Virginia Legislature for The Charleston Gazette-Mail after covering cops and courts for The Northern Virginia Daily.