“No Harm” Ratings and Nursing Homes: How is a Bedsore not considered “actual harm”?

Monitoring and reporting of elder abuse is one of the most important responsibilities delegated to New York regulators. However, recent news reports have cast a light on the accuracy and effectiveness of these reports. Advocates for elder care say the data collected by regulators does not effectively represent the harm caused to nursing home patients when the facilities violate state or federal regulations. Based on the evidence provided, it appears these advocates may be correct.

According to the Centers for Medicare and Medicaid Services (CMS), only 4 percent of all regulatory violations result in “actual harm” to a resident at its facility. While the data is collected at a federal level, state regulators are required to perform the inspections and relay the information to CMS. In New York, the legal entity responsible for inspecting nursing homes is the New York Department of Health.

Because aggregating data from different state regulators and locating whether harm occurred in each instance would be an impossible task, elder care advocates point to two reasons for believing the number of “no harm” designations is unlikely. First, the rate (at 4 percent) seems almost impossibly low – especially considering that many violations seem almost certain to cause harm, such as a substantial increase in bedsores or pressure ulcers in patients, which is often cited by regulators and rarely tagged as causing any harm to the patients.  Practically speaking, how does a bedsore NOT result in harm? Second, the Center for Medicare Advocacy provided several examples from its limited investigation into the so-called “no harm” deficiency at nursing homes.

One of these examples comes straight from New York. Avon Nursing Home, an upstate retirement home, is a three-star facility, according to CMS reports. According to the write-up, a nursing home resident suffered from delusions that “battery acid is being taken from cars in the parking lot and [being] poured on his right.” The patient, despite receiving a referral for psychiatric services, never received any medication or treatment for his unfortunate delusions. Further, the patient’s paranoid behaviors were also supposed to be monitored – however the patient was only closely monitored roughly 45 percent of the time, according to state regulators.

According to the nursing home, the facility did not even offer psychiatric services. Therefore, the patient in this case was made to suffer without any treatment for several months before state regulators cited the facility. Despite the clear harm to this nursing home resident, CMS did not flag the violation as one that caused “actual harm” to the patient, an important designation that effects the score of a nursing home and opens it up to increased legal liability and higher potential fines by regulators. Unfortunately, it appears this problem may be all too common and New York regulators should be more cognizant of how their violations affect some of the most vulnerable members of our society.

the Law Offices of Thomas L. Gallivan, PLLC holds nursing home accountable for neglect and abuse.  Contact us.

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