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Groups Question Changes To Kansas Nursing Home Disclosures

Dave Ranney
KHI News Service

The Kansas Department for Aging and Disability Services is changing the way it shares its reports on nursing home conditions with the public.

The new system, officials say, will make the reports more accurate and more accessible.

But for a group that supports nursing home residents and their families, the changes will make it harder to know which homes are the subjects of complaints and investigations of substandard care.

“We are being told the information isn’t going to be released until it’s gone through an internal review process that’s essentially closed to the public,” says Mitzi McFatrich, executive director of Kansas Advocates for Better Care. “I don’t see what that does to ensure accountability.”

Trade associations that represent the state’s nursing home industry have questioned the change as well.

“We can work with the (new) system,” says Cindy Luxem, chief executive of the Kansas Health Care Association, a group that represents most of the for-profit nursing homes in Kansas. “But when something like this happens, the first question that comes to mind is, ‘Why are we making things less transparent?’”

Starting July 1, KDADS will stop sending electronic copies of nursing home inspection reports to the trade associations and Kansas Advocates for Better Care. Instead, KDADS will send them a monthly list of homes it inspected.

The associations will be able to search for the reports on the KDADS or Centers for Medicare & Medicaid Services websites.

The report review process - formally known as informal dispute resolution, or IDR - involves a facility’s representative pleading its case before a three-member panel composed of a nursing home administrator and a director of nursing who are not affiliated with the facility, and a KDADS representative.

“Consumers don’t get to participate in the IDR process,” McFatrich says. “They don’t even know about it.”

The process allows the panel’s findings to be overturned by KDADS Secretary Kari Bruffett.

“The only version of the survey that we’ll see will be the whitewashed version,” McFatrich says. “The potential is there for us not to know whether a facility was cited for ‘actual harm’ or ‘immediate jeopardy’ and then somehow got it dismissed. That does not safeguard the public’s right to know.”

The new policy also reverses a long-standing departmental practice of making surveyors' findings available soon after they leave a facility, usually within one or two days.

Last year, 122 of the state’s 350 nursing homes were cited for exposing one or more residents to actual harm or putting them in harm’s way; 18 of the facilities were fined between $1,500 and $7,550. It’s not clear how many of the fines have been paid.

In Kansas, more than 18,000 people live in nursing homes.

Aiming for accuracy

Angela de Rocha, a spokesperson for KDADS, says the change in policy is meant to ensure the accuracy and consistency of the information contained in the reports.

De Rocha says the agency reserves the right to post survey results before completion of the appeals process when it suspects that a nursing home is trying to delay the release of a negative report.

In Kansas, each of the state’s 350 nursing homes is subject to an annual inspection, though the average span between surveys now stands at 14.5 months. Consumer complaints also may result in a home being inspected.

De Rocha says about 2 percent of the surveys result in appeals. Most surveys, she says, will be posted on the KDADS or CMS website within 30 to 90 days of a surveyor’s visit.

“No information is being withheld,” she says. “More information is available today, and it is being made available more widely through the online posting.”

De Rocha says it was no longer necessary for the department to send electronic copies of the surveys to Kansas Advocates for Better Care and the trade associations. The associations’ staffs, she says, already know how to find the surveys on the department’s website. People who find the website difficult to navigate can call KDADS at (785) 296-4986 for assistance.

“We may ask that a (formal open records request) be submitted if a hard copy or other special consideration is requested, in order to demonstrate our compliance with the response times and fees stipulated by (state) statute,” de Rocha says.

Nursing homes, she says, still are required to post their latest surveys in a public place within the facility, usually in a gathering area or entryway.

KDADS no longer uses press releases – hard copy or electronic – to alert consumers that a nursing home in their area has been cited for poor care or fined due to abuse or neglect. The practice was discontinued in the mid-2000s.

Change amid concerns

McFatrich says she was troubled that the change in policy coincided with anecdotal reports of some nursing homes having serious deficiencies and of fines being dismissed after closed-door meetings with the KDADS-coordinated review panels and before any public release of information.

She is especially concerned that KDADS records show that in October or November 2013 department officials agreed to dismiss an “actual harm” deficiency levied against Evergreen Community of Johnson County in Olathe after surveyors found that staff had not done enough to address a female resident’s claim that she had been sexually assaulted.

“We know there was a complaint survey, and we know the facility was cited for ‘actual harm,’” she says. “But we don’t know how or why the deficiency got dismissed.”

A similar incident, McFatrich says, happened in January 2012 when KDADS agreed to dismiss a $9,000 fine levied against Victoria Falls Nursing Facility in Andover, before an incident earlier this year that generated headlines across the state and led to an even larger federal fine.

“We’ve asked KDADS and CMS for a copy of the survey that led to the ($9,000) fine, but they both say they can’t find it,” McFatrich says. “No one has it, apparently.”

KDADS last month announced that federal officials had fined Victoria Falls at least $155,800 after learning that a Wichita television station would broadcast hidden-video footage that showed a male night-shift nurse taking a female resident from her wheelchair, dropping her on the floor and leaving her alone in the dark for almost 45 minutes.

The surveyors also cited Victoria Falls for poor care, poor recordkeeping, being understaffed, not performing background checks on prospective employees, not doing enough to investigate reports of suspected abuse and neglect, not doing enough to ensure residents’ dignity, not doing enough to keep track of residents’ personal funds and not doing enough to prevent cuts and bruises.

“What happened at Victoria Falls is wrong on so many levels,” McFatrich says, noting that records show the video was made in late September 2013 but was not shared with law enforcement officials until November.

And KDADS, she says, didn’t learn about the video or the Andover Police Department’s investigation until March 26.

“Now KDADS is saying that if in the future a facility like Victoria Falls decides to appeal findings like these, they won’t be made public until the process runs its course,” McFatrich says. ”I don’t see how that serves the public interest.”

Transparent process

Luxem, of the Kansas Health Care Association, says her constituents don’t see a need for the change in KDADS policy.

“This is not an industry-requested thing,” she says. “We want the process to be as transparent and as open as possible.”

For years, Luxem says, the association has used information in the surveys to keep track of which deficiencies are cited most often and to determine how they can best be prevented.

“This is one of the things we’re set up to do – improve our members’ quality of care,” she says. “We review every survey as soon as it comes out. If that information is not timely or if that process somehow gets delayed, it would take away a huge part of what we do.”

These reviews, Luxem says, are necessary because neither KDADS nor its predecessor, the Kansas Department on Aging, have “compliance training” programs for nursing home personnel.

“The survey process we have now is such a ‘gotcha system,’” she says. “The regulators come in, they write you up and then they leave, and you’re expected to fix whatever they said was wrong, sometimes with a significant price tag attached.”

“It’s an adversarial relationship. KDADS is there to tell you what you did wrong; they’re not there to tell you how to do it right,” Luxem says. “That’s the hole that we are trying to fill and that LeadingAge Kansas is trying to fill.”

LeadingAge Kansas represents the state’s nonprofit nursing homes. Its chief executive, Debra Zehr, says she has told KDADS that while her association prefers to have access to “real-time survey data,” it would not object to the reports being made available within 30 days of their initial completion.

“It would be a tradeoff,” she says. “We wouldn’t be getting the information in as timely a manner as we would like, but we would know that what we got is the final version and there won’t be any further changes. That’s good, I guess. It’s better than their getting it to us on a quarterly basis, which is what they says they had planned on doing originally.”

KDADS, de Rocha says, adopted the policy without conferring with LeadingAge, the Kansas Health Care Association or Kansas Advocates for Better Care.

Dave Ranney is senior writer/editor with KHI News Service, an editorially independent reporting program of the Kansas Health Institute. 

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