HARRISBURG — In the fall of 2016, Karen Murphy, then secretary of Pennsylvania’s Department of Health, pledged to reform how the state oversees its nursing homes.
The auditor general, Eugene DePasquale, had identified serious problems in the state’s conduct: outdated regulations, dangerously low staffing requirements for nurses, and overarching issues with weak and inconsistent inspections. Some of the issues had persisted for more than a decade, the audit found, and compromised the safety of elderly residents.
In 2019, the auditor’s office followed up to see if the Department of Health’s oversight had improved as promised, only to find many of the old issues had yet to be addressed. The current health secretary, Rachel Levine, said in response to the criticisms that new regulations were imminent and would fix the problems.
“We are facing an elder care crisis,” DePasquale wrote in the 2019 audit. “And we continue to ignore it at our own peril.”
More than a year later, and several months into a pandemic that has caused thousands of deaths in the state’s nursing and personal care homes, the long-promised regulations still have not been released. Not only do problems remain, but the coronavirus has likely exploited the shortcomings, fueling deadly outbreaks across the state.
A Spotlight PA review found:
“Because of COVID, the issues we found were dramatically highlighted,” DePasquale told Spotlight PA in an interview. Updating the old nursing home and staffing regulations remains critical, he said, and the audits’ outstanding recommendations should be corrected “as soon as possible.”
“It is probably unfair to say if the regulations were updated there would have been no issue with the coronavirus,” he said. “But I do certainly think there would be better preparation for this.”
As of early June, more than 4,200 residents of Pennsylvania’s long-term-care facilities have died from the coronavirus, nearly 70% of all the deaths attributed to the disease in the state.
The majority, roughly 3,600 people as of Wednesday, died in nursing homes, which are overseen by the Department of Health. (Personal care homes and assisted living facilities are under the Department of Human Services’ jurisdiction.)
Adjusted for population, Pennsylvania has the seventh-highest death rate for residents of nursing homes and the 10th-highest rate of cases, according to data from the Centers for Medicare and Medicaid Services.
The state’s response to nursing homes in crisis has been marred by false starts and misinformation. An early plan to develop quick-strike teams to assist struggling homes was abandoned, and only many weeks into the crisis was the National Guard, and later teams from the Centers for Disease Control and Prevention, deployed in a limited fashion to help.
For months, a lack of access to testing and protective equipment made it hard for nursing home staff to know the extent of the disease in a facility or take steps to prevent it from spreading.
Amid this strain, the state still says it does not have consistent or complete data from long-term-care facilities about where cases or deaths have occurred, potentially obscuring the extent of outbreaks.
Levine has defended her department’s response and said officials prioritized nursing homes from the start. The state says it has sent more than 1,800 shipments of personal protective equipment to long-term-care facilities, increased testing resources, offered consultation services, and responded to all reported outbreaks.
Yet issues with staffing, data collection, and inspection oversight seen during the crisis were all made evident by the auditor general — and acknowledged as known problems by the state — in 2016 and again in 2019.
On June 1, hours after Spotlight PA asked the department why new regulations had not been implemented, Levine said at a news conference that doing so was a priority for the Wolf administration.
“We are working to update and rewrite our regulations to ensure that they protect the residents of today and tomorrow,” she said.
Nate Wardle, a spokesperson for the Department of Health, said new regulations are “still being actively worked on.”
“We are continuing the process to review and rewrite our nursing home regulations,” he said in an email. “As you know, these things take time, and the entire department is assisting in the response to COVID-19.”
Even before the pandemic, Pennsylvania's low staffing requirement placed residents at higher risk, experts said. When nurses are in short supply and caregivers overtaxed, residents wait much longer for help, leading to accidents, mistakes, and neglect.
Currently, the state requires homes to provide residents with only 2.7 hours of care each day, despite federal recommendations that, at a minimum, facilities should provide 4.1 hours of care.
The state’s requirement hasn’t changed since 1999, as both the 2016 and 2019 audits pointed out. The reports found the state consistently failed to exercise its authority to increase staffing levels, or to penalize homes with low staffing.
The Department of Health said last year it would address staffing requirements in new regulations. But those have yet to materialize, and in March, when the coronavirus first began to spread in Pennsylvania, one of the Wolf administration’s first actions was to waive existing requirements and allow homes to operate even if they fell below state staffing levels.
A Spotlight PA analysis of federal data shows that COVID-19 spread at homes with high care ratings as well as those with a history of violations and fines. Cases and deaths occurred at homes with both strong and weak staffing.
Still, the 50 homes with the lowest staffing hours in the state were twice as likely to have at least one coronavirus-related death than the 50 homes with the highest level of staffing hours.
And of the 68 nursing homes where 20 or more residents had died as of June 8, only eight met or exceeded the federal staffing recommendation.
Charlene Harrington, a professor emeritus of sociology and nursing at the University of California San Francisco, whose research focuses on nursing home care, called Pennsylvania’s staffing requirement “totally unsafe.”
“We know the minimum needs to be 4.1 [hours] to prevent harm or jeopardy, so it doesn’t make sense to have such a small staffing requirement,” she said. “It doesn’t do any good at all.”
Provider organizations petitioned to waive staffing requirements, arguing homes should not be penalized if nurses need to quarantine, stay home because they are sick, or care for children.
Zach Shamberg, CEO of the Pennsylvania Health Care Association, said the need for more nursing home staff has been a long-standing concern in the state and nationally, and when the coronavirus first took hold in Washington state, it was the first thing provider organizations there warned him about.
“We were going to have struggles meeting those staffing requirements,” he said. “We wanted to make sure facilities weren’t cited if in fact they dipped below” the standard.
Shamberg added that he believes there should not be a “one-size-fits-all” requirement for staffing at different facilities.
“If we were to go to 4.1 [nursing hours] tomorrow, every facility in the state would be out of compliance,” he said. “There is simply not the workforce available to meet that requirement.”
Rachel Werner, a professor of medicine at the University of Pennsylvania, said relaxing regulations during the crisis “could have an impact on the care that was being delivered, but we are balancing risks here.”
“The trade-off was, had they not been relaxed, other things would be worse,” Werner said.
Fundamentally, the elder care system is poorly set up, she said, and current Medicare and Medicaid funding systems are an inadequate way to pay for the levels of nursing care needed in institutional settings.
But other experts argued that, having already failed to improve known issues with staffing, the state further abdicated its responsibilities to keep nursing home residents safe by waiving existing requirements during the pandemic.
Had the state required at least minimum staffing, Harrington and other experts said, facilities would have had more impetus to find enough employees to provide the care residents needed.
Harrington said the state “should have told the nursing homes they have to have more staff, bring in more staff, to deal with the virus.”
“Basically, they just gave the nursing home free rein to do whatever they want.”
In March, the state halted routine inspections of nursing homes, except in situations of immediate jeopardy. This was part of a federal recommendation, though the state could have chosen to supersede it.
Between mid-March and the end of May, the state conducted 851 inspections, specifically focused on how facilities dealt with infection control issues. The majority, however, were done virtually. Just 50 involved a state surveyor visiting a home in-person.
“Remote surveys allow our surveyors to do everything they would on site, except for be in the building,” Wardle, a Health Department spokesperson, said. “They can conduct interviews, review documents, speak to anyone they need to, etc.”
But elder care advocates and ombudsmen say remote inspections are a dangerous practice that leaves facilities ample space to assure regulators there are no problems over the phone, and avoid citations and fines.
According to inspections made public since the virus took root in the state, regulators have rarely reported any problems. At least 33 inspections were triggered specifically in response to complaints about the coronavirus, but the state said it found no problems at these homes, more than 60% of which have seen resident deaths.
This includes an April inspection at ManorCare Health Services Chambersburg in Franklin County, which has reported 14 resident deaths to the state. In Lehigh County, the state found no problems at CedarBrook Senior Care and Rehabilitation, where 37 people have died, nor at Lehigh Center, where there have been 24 deaths. At homes in Berks and Montgomery Counties, the state also found no problems even though more than 20 deaths occurred at each facility.
“Higher quality and lower quality facilities can have cases and death,” David Stevenson, a health-policy professor at Vanderbilt University School of Medicine, said. Still, Stevenson said he believes “that higher quality practices and higher staffing matter … to residents’ outcomes even in a pandemic.”
When staff or family members report problems at a facility, but the state finds nothing, that should raise questions, he said. These complaints, now more than ever, are “very much something for the state to be on top of.”
Inspections conducted during the last two months in response to non-coronavirus complaints have also rarely involved citations.
At Brighton Rehabilitation and Wellness Center in Beaver County, which has so far seen 80 deaths — the highest number at any nursing home in Pennsylvania to date — an “abbreviated” state survey in late April found no deficient practices.
Yet roughly a week after the survey, the state determined it was necessary to appoint a temporary manager to run the facility — an unusual step taken when a facility is “unable or unwilling” to come into compliance with regulatory requirements.
A separate federal investigation in early May resulted in a roughly $62,500 fine after inspectors found issues including unclean medical equipment and problems with medical record-keeping at the facility.
“It definitely is concerning, to say the least,” said David Grabowski, a professor of health-care policy at Harvard Medical School.
The complaints made by family and staff during the pandemic are even more crucial to investigate when surveyors are predominantly overseeing facilities by phone, Grabowski said.
“We should take those complaints very seriously,” he said. “In fact, we should take them more seriously right now.”
Problems with how Pennsylvania conducts its inspections of homes, and whether the results of those inspections are consistent and accurate, were among the ongoing problems the state has promised to address since they were identified in the 2016 audit.
The auditor general's office found “a lack of consistency in surveys and quality standards” and said the state had no policy to check whether a facility was in compliance with staffing requirements. (This has since been improved at the federal level by requiring homes to submit payroll data.)
According to the 2016 audit, nursing home surveyors often found serious problems, but sometimes chose not to issue citations against the facility, and then did not document why enforcement action had not been taken. There was no standardized procedure among regional offices, leading to inconsistent assessments of the severity of problems and when facilities should be cited.
The consequence of this was in part made evident by a 2016 PennLive investigation that found seven of 46 deaths directly related to poor care at nursing homes were only classified as “minimal harm” violations. This is a minor citation, usually tied to a resident experiencing some discomfort, not death. Only one of these deaths had been classified as “immediate jeopardy,” which is the standard for problems resulting in death or significant harm.
Three years later, the auditor general found that while some policies had been updated, the survey process remained inconsistent and there was an evident need to better train nursing home inspectors. DePasquale said a third-party trainer might be warranted.
But even before the first audit, the Department of Health saw the need for better oversight.
The agency hired a training manager in 2014 to oversee the state’s surveyors and standardize and improve the quality of statewide inspections, according to an internal job description. But the following year, the role was all but hamstrung, according to a complaint submitted to the auditor general’s office in 2018 and reviewed by Spotlight PA.
The complaint said all nursing home inspection training was halted in the fall of 2017. The issue was brought directly to Levine, the health secretary, according to the document.
DePasquale told Spotlight PA his office reviewed the complaint, and its allegations contributed to findings in the 2019 audit.
“It is something we stand behind — that consistency [in inspections] needs to be improved,” DePasquale said. “Broadly speaking, the issues that we addressed, we still believe need to be resolved."
A Department of Health employee, who asked not to be named for fear of retaliation, said the lack of progress in training inspectors and other problems within the department can make it hard for the public to rely on surveys as a measure of whether nursing homes are providing adequate care. The employee said it was common for violations to be erased from inspection reports and for some inspectors to be too cozy with nursing home administrators.
The audit also found there were concerns among advocates about the close relationship between some inspectors and nursing home administrators, raising the possibility some complaints were not thoroughly investigated or problems penalized. That would be more of a concern during the coronavirus, when lenient enforcement could have allowed the virus to spread faster, putting more lives at risk.
The state did not directly address this in its response to the auditor general but said it follows federal guidelines to handle complaints and uses online and in-person training to improve.
Nationwide, studies have found little relationship between the quality of a home and whether the virus has infected residents there. Instead, facilities located in a region with a high rate of cases are more likely to see infections.
Still, if the survey used to assess the quality of a home is inaccurate or has not rigorously investigated or enforced the quality of care, it is harder to use the results as a true measure of a facility, experts said.
The gap between the state’s outward assessment and a home's actual conditions has been called into question at Southeastern Veterans’ Center in Chester County. It has a five-star quality rating, the highest a home can achieve. So when the disease spread rapidly there, contributing to more than 100 cases in residents and staff and 41 deaths, it was initially seen as an example that the virus is not discerning: causing destruction at both strong and weak facilities.
But reporting by The Philadelphia Inquirer found there have been long-standing concerns at the facility, including allegations of falsified reports about patient care and staffing.
Grabowski at Harvard, who was on a nursing home task force convened in 2015 to look at Pennsylvania’s oversight problems, said he was unsurprised by how little progress has been made.
“At the time I think there had been some major controversies about quality of care,” he said. “This hasn’t been a priority. It's hard to know whether that is ageist, whether that is circumstance, or if that is something else here, or a mixture of both.”
What we do know, he said, is that “COVID has been absolutely magnified in the U.S. by the more systemic problems — it could be an opportunity to rethink how we regulate.”