Do “No Harm” Citations Adversely Affect Nursing Home Accountability?

A new edition of the Long Term Care Community Coalition Elder Justice Newsletter asks a simple question: does providing a nursing home resident breakfast in their soiled bed constitute harm? How about failing to provide a stop date for a resident’s psychotropic medication?

“No Harm” deficiencies refer to citations of rule violations at nursing homes in which health inspectors determined that the violations caused “no harm” to residents. As the LTCCC notes, data provided by the Centers for Medicare & Medicaid Service, which mandate minimum standards of care for nursing homes participating in their programs, show that more than 95% of nursing home health citations describe “no harm” deficiencies. The LTCCC argues, however, that these no harm citations reflect systemic failures to recognize the suffering of nursing home residents, which in turn results in systemic failures to hold nursing homes accountable through financial penalties. “In the absence of a financial penalty,” the newsletter states, “nursing homes may have little incentive to correct the underlying causes of resident abuse, neglect, and other forms of harm.”

The newsletter proceeds to provide instances of health violations in which regulators determined that no harm was done to the resident in question. For example:

  • New York’s Niagara Rehabilitation and Nursing Center was cited for failure to honor a resident’s right to dignity. The conduct underlying the citation involved a resident who ‘was observed sitting naked while eating from a tray placed on soiled linens.” Nursing home records showed that the resident had cognitive impairment and was documented as requiring supervision during mealtimes: an administrator told a surveyor “that the resident should have been cleaned, dressed, and the meal tray should have been placed on an over the bed table.” In other citations, the facility was described as failing to maintain sanitary conditions in three resident units, where a surveyor observed “soiled walls, damaged ceilings, soiled floors, a missing shower curtain, a soiled chair, soiled privacy curtains, dust-laden surfaces, damaged window sills, soiled and ripped floor mats and pads, a toilet tank missing its cover, wall-mounted night lights missing covers, improper garbage storage, and foul odors.” Still, the surveyor assessed that no harm was done to the resident observed in unsanitary conditions and who vocalized their discomfort about not having clothes.

 

  • In Florida’s Cross Landings Health and Rehabilitation Center, an inspector found that the facility did not “indicate the duration for a dispense as needed (PRN) order of psychotropic medication for residents sampled for unnecessary medication.” As the LTCCC notes, psychotropic medications have potentially fatal side effects. In spite of this, the inspector described the violation as no-harm. The resident’s records included an active order for them to receive the medication thrice a day as needed for agitation, was active for nearly five months, and “did not list a stop date nor a rationale for a duration greater than 14 days.” The facility’s Director of Nursing told an inspector that the pharmacy’s recommendation for the medication advised indicating no stop date, but also said “that there needed to be a stop date with a rationale if the medication was to exceed 14 days.” The inspector identified another resident receiving as-needed antipsychotic medication for a period of months with no rationale for continued usage, and with no stop date. Still, the inspector found the violation constituted no harm.

 

  • In the Heartland Health Care Center in Grosse Pointe Woods, Michigan, an inspector found that the facility did not provide sufficient staffing to meet residents’ needs, including “planned interventions, incontinence care needs, and other activities of daily living (ADLs) for six residents.” The underlying conduct included a resident stating, ““I waited three hours to get my brief changed. I laid in a soiled brief,” and another resident describing four instances in a two-week period in which they waited over an hour for toileting assistance: “The CNA turns off the call light and walks out of the room. Two times I have wet myself … I felt angry, helpless, it felt really bad … I felt frustrated and was afraid that I might get a bed sore, I wanted to go home, at least I don’t have to lay in pee at home.” In other instances, residents stated that staffing shortages on weekends resulted in delays in the administration of pain medication and therapy. The inspector found that staffing records showed an instance in which a weekend afternoon shift had only one nursing assistant on each floor, and in which “one of those nursing assistants was also assigned to be a resident’s sitter but worked the floor rather than providing for one-to-one monitoring.” The resident documented for that one-to-one monitoring told the inspector that they were not checked on by staff, and that “Nobody moved me in bed yesterday or today.” A deeper review of resident group meeting notes “revealed that staffing is a longstanding problem at the facility,” with notes describing nurses “not liking to work, complaining, taking too long, and shutting off call lights with no help.” In spite of all this, the inspector described this conduct as resulting in no harm to the residents.

The LTCCC stresses that these citations were issued in the months preceding the Covid-19 pandemic, arguing that they highlight the lack of accountability for nursing homes before the public emergency began. It also notes the consequences of the pandemic at each nursing home: the Niagara Rehabilitation and Nursing Center reported three resident deaths from Covid-19 and 22 confirmed cases through July 26; Cross Landing reported zero resident cases and three staff cases; and Heartland Health Care Center reported 19 confirmed cases, nine suspected cases, and one resident death.

The attorneys at the Law Offices of Thomas L. Gallivan, PLLC work diligently to protect the rights of nursing home residents.  Please contact us to discuss in the event you have a potential case involving neglect or abuse.

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