Who Cares?

Officials say oversight is improving New Mexico's troubled nursing homes. The numbers and the lawsuits say otherwise

To Henryetta Lewis, neither "nursing" nor "home" aptly describes the facility where she stayed for five months in 2008.

On March 28 of that year, Lewis, now 88, tripped and fell. She was at home in her second-floor apartment at Los Piñones, on the north side of Santa Fe and, on the way down, hit her head on a coffee table.

"I must have hit it hard because there was some paper on the table, and I could tell my head was bleeding," Lewis tells SFR. Despite the wound to her head, Lewis, a retired secretary who lives alone, managed to crawl into her bedroom and use the phone.

Tony Begg, Lewis' downstairs neighbor (who, before the accident, often helped her with odd jobs around the house), says it wasn't until after the paramedics had taken Lewis to Christus St. Vincent Regional Medical Center that he learned what had happened.

"I came to check out her apartment, and it was covered in blood," Begg recalls. "Her bed was soaked with blood; there was blood everywhere. She must have been in a state of shock."

At St. Vincent, Lewis was assigned a caseworker who recommended she go to Casa Real, a local nursing home. Lewis doesn't recall having a say in the matter.

"I had no choice at all," she says. "I didn't know what was happening."

The caseworker, Begg says, had told him Lewis would need approximately three weeks of rehabilitation at the nursing home. But those weeks stretched into months and, instead of improving, Lewis' health only declined.

A report, dated June 24, 2008, from Lewis' doctor states that Lewis was hospitalized three times in her three months at Casa Real, had knee pain and relied on a wheelchair.

"She would like to get out of Casa Real," the report reads. "Neighbor [Begg] is concerned about her pain management there…[Lewis] moans with movement."

Lewis returned home shaken, still in a wheelchair and facing a $17,747 bill (she says she was never told that her insurance had lapsed).

The experience still haunts her. But at least she went home. Thousands of New Mexico’s elderly are likely to live out their lives in nursing homes, and approximately 12,000 currently reside in the state’s 68 long-term care facilities.

Like most states, New Mexico faces the problems of staff shortages and high turnover in these nursing homes—but at significantly higher rates.

Two of Santa Fe's largest nursing homes—and eight others around the state—are owned by Cathedral Rock Management LP, a national nursing home corporation with a history of problems.

Tony Begg (right) is helping former nursing home resident Henryetta Lewis navigate a $17,747 bill for care she says only made her worse.
Credits: Alexa Schirtzinger

The state ranks No. 1 in the nation for the number of complaints per nursing home bed, according to the federal Administration on Aging. New Mexico also is near the top in several other categories, including the percentage of nursing home complaints related to abuse.

State and federal nursing home investigation reports also reveal a pattern of abuse, neglect and error. Much of that—even when witnessed by nursing home staff—goes unreported.

And while New Mexico appears to have an impressively rigorous oversight process for its nursing homes, finding out more about the lives of these seniors is tricky: The state's rigid privacy laws obscure many of this complex system's inner workings.

“I’ve been doing this for 12 years, and I can tell you nothing has changed,” Dennis Steele, founder of nursing home comparison website Member of the Family, tells SFR. “There’s more oversight, but it doesn’t change the outcome.”

For nursing home residents, that outcome can translate into care that ranges from inattentive to negligent. Before Casa Real, Lewis was self-sufficient. She took herself grocery shopping, chatted with neighbors outside the apartment complex and only occasionally used a cane to walk.

But at the nursing home, she was confined to a wheelchair. She also became incontinent.

In a letter, dated Aug. 27, 2008, to Lewis' primary care physician, Begg—who visited Lewis frequently—writes, "The people at Casa Real cannot cover the number of bathroom visits their inmates require so prefer to keep them in diapers."

Lewis had been referred to Casa Real for rehabilitation. But her experience echoes what others have witnessed for their loved ones.

Sondra Everhart, New Mexico’s long-term care ombudsman, coordinates staff and volunteers to field complaints, advocate for residents’ rights and train nursing home staff to provide better care.
Credits: Alexa Schirtzinger

Dora Vigil, an elderly woman who grew up in Santa Fe, entered Casa Real at approximately the time that Lewis was leaving, in August 2008.

According to her niece, Georgia Kelly, Vigil was happy at first. She ran into friends and acquaintances she'd known in her former life, including a retired doctor's wife.

"We figured if a retired doctor has his wife there, it's OK," Kelly recalls.

After a while, though, Vigil began to complain about how the nursing home staff treated her.

Kelly recalls that, when she visited, Vigil was always thirsty. She finally admitted that she didn't want to drink too much water, Kelly says, because staff didn't come frequently enough, and her adult diaper was often wet.

Vigil eventually developed bedsores on her back and buttocks, and Kelly remembers seeing large, yellow bruises from falls her aunt had taken.

Dusti Harvey, Kelly’s attorney in a negligence case against Casa Real, says tales like Lewis’ and Vigil’s are common in New Mexico.

"The poor care—going to the bathroom in your diaper, becoming immobile, not having enough staff—are all things I see very regularly," Harvey tells SFR.

Steele says staffing issues are often to blame.

"No matter where you look, in any nursing home that has a problem, 95 percent of it can be traced back to low staffing or poor staffing," Steele says.

According to the most recent report by the American Health Care Association, nursing homes across the country "are facing a serious workforce shortage."

New Mexico is particularly strapped, ranking near the top of the list for vacancy rates in staff positions.

"There's just a general staff shortage in New Mexico that doesn't exist anywhere else in the country," Michael Evans, a spokesman for Cathedral Rock, the Texas-based nursing home corporation that operates Casa Real and Santa Fe Care Center, tells SFR.

New Mexico state regulations require a minimum staff-to-resident ratio in nursing homes.

"The problem is the numbers do not take into account the severity of the illness," Sondra Everhart, the state's long-term care ombudsman says—so state and federal regulations also stipulate that nursing homes employ enough staff to meet residents' needs.

"People always think that there's not enough staff," Gail Trotter, the Long-Term Care Ombudsman Program's northeast coordinator, says. "'My loved one's in a facility'—that's scary. If there were all the staff in the world, that probably wouldn't be enough."

Beyond sheer numbers of staff, though, New Mexico nursing homes are also plagued by frequent turnover.

"It's a very difficult job," Everhart tells SFR. "The pay is $9- to $11-an-hour to change diapers, to feed people who can no longer eat."

The result, she says, is one of the highest nursing home staff turnover rates in the nation. According to AHCA, the average annual turnover rate for Certified Nursing Assistants, or CNAs, in 2007, was 66 percent nationally. Here, it was more than 100 percent—meaning more than the entire staff turns over in a year. New Mexico’s rate is the fourth-highest in the country.

Everhart says frequent turnover, relatively low pay and hard work makes for a potentially taxing situation not just for front-line staff members, most of whom are CNAs, but also for residents.

"If you think about the activities [residents] need help with—eating, bathing, going to the toilet—those are pretty intimate," Everhart says. "It would be nice if it was the same person, just [for] familiarity. You get sick—who do you want to help you? You don't want me; you don't know me. Doesn't mean I can't do a good job, but you don't know me."

Furthermore, nursing home administrators come and go almost as frequently as CNAs, she says.

"There's tremendous turnover with administrators and directors of nursing—and those are the key positions," Everhart says. "You can have the most wonderful facility and have a change in administrator, and it will tank in 60 days. Or the reverse," she says.

Everhart therefore cautions against judging a facility on its conditions in 2008—or even in 2010, if a change in administration has taken place.

Some cite an ongoing tension between running a for-profit corporation and providing high-quality care as another reason nursing homes sometimes fail their residents.

"There is data available that nonprofit corporations provide better care than profit corporations. Logically, it makes sense," Everhart says. "If I had my way, I would have nursing homes only owned by not-for-profit corporations."She adds: "All 50 state ombudsmen in the United States and all their staffs will tell you the same thing."

According to Everhart, more than half of the state’s 68 nursing homes are run by large, for-profit corporations. (Nationally, it’s approximately 60 percent.)

"It's a dichotomous moment because they are a business," Member of the Family founder Steele says. "The biggest problem continues to be staffing. Why would that be? Because staffing is really the first controllable cost."

At most of Cathedral Rock's nursing homes, spokesman Evans says, staffing is the single largest expense; at Casa Real, he says, staffing makes up more than 40 percent of the facility's total annual expenses.

Evans cites New Mexico's regulatory requirements and a litigious, plaintiff-friendly environment as obstacles to attracting and retaining nursing home staff.

"The litigation environment in New Mexico is more active than a lot of places, and it's not unusual for a litigator on the plaintiff's side to name a nurse or an administrator personally," Evans says. "That probably goes into the presumption of whether or not someone wants to work in a nursing home. We've seen a lot of people disillusioned if they get named in a lawsuit. It's discouraging."

(Regarding the cases in this story, Evans says Cathedral Rock doesn't comment about pending lawsuits because "it doesn't make any sense to do that.")

Harvey takes issue with the assertion that New Mexico's legal environment discourages people from working in nursing homes.

 "We don't go after caregivers or CNAs," Harvey says. "They're the ones who don't have enough training, don't have enough supervision and there's not enough of them. They're victims, too."

Legal action, Harvey says, discourages negligent care—especially when official oversight isn't enough.

"In our state, it's up to a jury what someone's life is worth," Harvey says of medical malpractice and wrongful death cases involving nursing homes. "In Texas, it's capped at $250,000. Now, they're getting horrific care in Texas because [nursing homes] are not being held accountable." "Alison," who requested SFR not use her real name because of ongoing litigation, has her own views on accountability—especially when it comes to Cathedral Rock. She describes her own experience as "unique because my mother didn't die."

Alison's mother, who suffers from multiple sclerosis, spent only four days in Santa Fe Care Center, the other local nursing home owned by Cathedral Rock.

This past May, Alison's mother was discharged from St. Vincent to Santa Fe Care Center for recovery but, on her second day there, nursing home staff called Alison late at night.

Gail Trotter, the northeast coordinator for the state’s Long-Term Care Ombudsman Program, frequently visits nursing homes from here to Raton.
Credits: Alexa Schirtzinger

"They wanted to know what to do with my mother's hair because they were going to give her a shower," Alison says.

Medical records from the nursing home show that, at 10:30 pm on May 14, staff found Alison's mother's feeding tube on the floor and were planning to reattach it; Alison says no phone call ever mentioned this.

"If not successful, may transfer resident to [St. Vincent] to replace feeding tube," the nursing home record reads.

That didn’t happen until late the next day, when Alison came down from her home in Los Alamos to visit and found her mother in critical condition.

At St. Vincent, doctors told Alison her mother needed emergency surgery.

According to the surgeon's report, Alison's mother's sudden critical condition was caused by the nursing home's failed attempt to reinsert her feeding tube.

When they resumed feeding her, instead of her stomach, the contents of the feeding tube were forced into her abdominal cavity.

Alison didn't hesitate. With the help of local lawyer Scott Voorhees, she filed suit against Santa Fe Care Center, and her mother was transferred out.

And into Casa Real.

Her mother is doing better, Alison says. But, she adds with frustration, "It's the same damn company."

That company, Cathedral Rock, has had its share of problems.

In January, Cathedral Rock pleaded guilty to Medicare and Medicaid fraud—billing patients despite rampant abuse, neglect and subpar care—in five of its nursing homes in Missouri. The company agreed to pay $1.6 million in criminal fines and civil settlement monies.

Then, in February, Casa Real was cited by the New Mexico Department of Health for failing to protect its residents from neglect and abuse and for improperly administering medication. The residents were declared to be in “immediate jeopardy,” prompting an immediate plan to retrain staff.

"Everything has been put back in place since then," Casa Real's current administrator, Renee Anderson, tells SFR. Casa Real, she says, is no longer out of compliance with any federal or state requirements.

"We definitely do a good job," she adds. "We try to do everything we can for the resident."

But according to numbers from the state ombudsman’s complaints database, Casa Real had by far more complaints (93 in the past year) than any other nursing home in the northeast region, which stretches from here to Las Vegas. Santa Fe Care Center, which is approximately the same size, logged only 56 complaints. Casa Real also reported the highest number of unresolved complaints: just more than 23 percent, while many facilities came in at zero.

Trotter, however, cautions against reading too much into those numbers because she often receives several complaints from the same person. And, according to federal law, ombudsmen must strive to resolve complaints "to the satisfaction of the complainant," Trotter explains—so if a resident is just plain unhappy, it's possible there's nothing to be done.

"The high number of complaints reported for New Mexico indicates that the reporting system is working—signifying that citizens feel safe reporting to the state's trained ombudsmen," Emily Kaltenbach, the director of policy and planning at the state's Aging and Long-Term Services Department, writes to SFR in an email. Of the 5,437 total complaints referred to ombudsmen statewide, Kaltenbach notes, "97% were resolved to the satisfaction of the complainant (resident, family member or facility staff)."

But these specific complaints are almost impossible to review. Except, of course, when they lead to lawsuits. Voorhees says most of his nursing home cases concern negligence—not turning people often enough to avoid pressure sores, for instance, or failing to take proper precautions to prevent falls—rather than abuse.

But even a simple mistake can have disastrous results if it's not reported.

At Casa Real, which is located on Galisteo Street near Christus St. Vincent Regional Medical Center, 117 of 118 beds are currently occupied.
Credits: Alexa Schirtzinger

From 2005 until this February, federal and state investigation reports for Casa Real reveal a pattern of unreported neglect, abuse or errors. In one report, investigators interviewed two different registered nurses who witnessed the same staff member verbally abusing residents. Neither reported it.

Anderson tells SFR that any unexplained incidents—such as a resident who falls when no one's around—must be reported to Casa Real superiors, as well as to the state's Department of Health. Both Voorhees and Harvey say that frequently doesn't happen.

Three of Voorhees' current cases, he says, involve unreported or unexplained falls.

One man fell out of bed, Voorhees says, “and staff just picked him up and put him back in bed with a broken hip.” Another involves an elderly female resident: “When they took her to the hospital, the doctor said the break was three days old.” 

Voorhees says nursing home staffers often don't want to get in trouble or lose their jobs.

But, according to federal and state investigation reports (called "surveys") on nursing home quality, most disciplinary action involves retraining staff rather than terminating them.

In addition to those surveys, which the Centers for Medicare & Medicaid Services (CMS) conducts every nine to 15 months for every nursing home in the country, both CMS and DOH also conduct surveys in response to complaints related to specific nursing homes.

Additional oversight comes from a host of other state and federal agencies.

The New Mexico Department of Health is responsible for investigating complaints of abuse, neglect or exploitation allegedly perpetrated by nursing home employees, while Adult Protective Services, an arm of the state's Aging and Long-Term Services Department, deals with abuse, neglect or exploitation perpetrated by community or family members. Finally, as the state's long-term care ombudsman, Everhart oversees 10 regional coordinators—such as Trotter—each of whom frequently visits nursing homes in his or her area, investigates non-abuse-related complaints and advocates for residents' rights.

As part of each state's ombudsman program (which is created by federal law, but administered by individual states and is charged with advocating for residents), nursing home residents have their own bill of rights. These rights range from freedom of abuse and neglect to eating "appetizing and nutritious meals."

In part because she must refer abuse and neglect cases to either APS or the DOH, Trotter says most of the work she does advocating for nursing home residents has to do with those rights.

Everhart also notes that New Mexico is the only state that requires monthly meetings in which the ombudsman, DOH, APS and the state Human Services Department's Medicaid Fraud Unit discuss their concerns about the state's nursing homes and strategize to address them.

"That is a tremendous protection because not only does it work, we support each other," Everhart says. "It isn't that there aren't problems; there are. And there are some very serious problems. But between APS and the Department of Health and the ombudsmen, we are getting to them."

That may be, but it’s hard to know. In June, SFR requested information from the Aging and Long-Term Services Department on the number and nature of investigations on elder abuse, neglect and exploitation. The numbers were available: Santa Fe County sees approximately 200 allegations of abuse, neglect and exploitation per year. Of those, approximately 150 are accepted for investigation, and roughly 20 are considered “substantiated”—bona fide cases of abuse, neglect or exploitation.

With resident-specific complaints, HIPAA (the federal Health Insurance Portability and Accountability Act) calls for the confidentiality of all medical records. But a New Mexico-specific privacy law also restricts all information related to Adult Protective Services. Even complaints that are redacted to eliminate identifying details are not available to the public.

On a recent visit to Casa Real, Santa Fe’s largest nursing home, the entry hall was deserted, except for a lone wheelchair.
Credits: Alexa Schirtzinger

The health department's privacy policy is even stricter, and limits even which numbers can be released. The DOH furnished numbers of confirmed cases of elder abuse, neglect and exploitation—which have increased from four in 2008 to 15 so far this year. But the numbers of complaints and investigations that aren't borne out are not public information, according to DOH spokeswoman Deborah Busemeyer.

State and federal nursing home surveys are also strictly private until fully completed. The most recent survey was completed in February; as Everhart herself says, a lot can change in a few months. (A DOH employee told SFR she could not even discuss whether there was or wasn't a survey in progress.)

And though the state Ombudsman Program freely shared detailed complaints data, Trotter says privacy laws permit her to share only the number of complaints per nursing home.

Sarah Welsh, the executive director of the New Mexico Foundation for Open Government, says the privacy laws and policies that envelop nursing home care in New Mexico are among the most stringent she's seen.

"We want to protect the people who are vulnerable but, without some transparency, how can there be oversight and accountability?" Welsh says. "The buck stops with the public, ultimately."

It isn't just the public, either. According to a report released this January, even investigators for the state Attorney General's Office had trouble getting the information they needed.

The New Mexico Human Services Department and the DOH, both of which administer Medicaid, were found to be filtering information they provided to the state's fraud unit. That report prompted a federal investigation, which Region 6 CMS Public Affairs Specialist Bob Moos tells SFR is currently in progress.

Still, New Mexico Attorney General Gary King tells SFR that, since the report's release, he has met with the heads of both departments and that transparency of Medicaid data has improved.

"Now that we have more access to the data," King says, his staff is ramping up its Medicaid fraud investigations.

According to Phil Sisneros, King’s communications director, the Attorney General’s Office is currently investigating 101 cases of Medicare/Medicaid fraud and 23 cases of elder abuse, neglect and exploitation. Sisneros would not say whether any of those cases involve Cathedral Rock. Today, Henryetta Lewis is still in a wheelchair and still suffers from incontinence. Her full-time caregiver, Rochelle, brings Lewis snacks and cigarettes while she watches TV. Begg helps her with daily chores and is doing all he can to fight her whopping medical bill.

Lewis is glad to be home.

Dora Vigil never left Casa Real. In April 2009, less than a year after she first entered the nursing home, Vigil fell while trying to get out of bed. According to Georgia Kelly, her niece, Vigil broke her femur—a fact that went unreported for 10 days.

"A nurse called me and said [Vigil] had fallen, and she usually bounces back, but this time she didn't bounce back, so [the nurse] ordered an X-ray," Kelly recalls.

Kelly, who lives in Albuquerque, says she packed a bag and headed straight up to Santa Fe to meet Vigil at the hospital.

At St. Vincent, Kelly says, the doctor told her Vigil's leg had been broken for more than a week and that she would need surgery.

The surgery happened on a Saturday, Kelly says and, though Vigil was "in a lot of pain," Kelly had to go back to Albuquerque for work. She visited Vigil as much as she could.

"I went back the day before she died," Kelly says. "She said, 'Take me back with you. They're not very nice to me here.'"  SFR

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