"Three-Strikes" Proposal Spurring Debate over Nursing Home Regulation

At a hearing in August to evaluate the state agency responsible for Texas’ elderly residents, State Sen. Charles Schwertner singled out seven of the 1,200 nursing homes licensed by the Department of Aging and Disability Services.

“These seven facilities are the worst of the worst,” said Schwertner, a Republican from Georgetown. At the hearing, he proposed a “three-strikes” rule that would force the state to close nursing homes found to have the highest-level violations of federal quality standards on three separate days over 24 months.

The department “needs to have this direction from the Legislature that we are serious about protecting our seniors,” said Schwertner, an orthopedic surgeon and chairman of the Senate Health and Human Services Committee. His recommendation emerged from a once-per-decade evaluation of the agency that is stirring arguments about whether the state should do more to supplement federal regulation of the nursing home industry, which in Texas serves nearly 94,000 people. Lawmakers are expected to tackle this issue during the 2015 legislative session.

Nursing facilities have been quick to push back against Schwertner’s proposal. “The nursing home sector remains one of the most heavily regulated settings in health care by both state and federal agencies,” said Kevin Warren, president of the Texas Health Care Association, which advocates for the industry. The state already has “authority in the current regulatory framework to identify infractions, impose financial penalties and require facilities to correct violations within the agency’s state and federal oversight responsibilities,” he said.

Nursing home owners under no immediate threat of closure from Schwertner’s proposal say the rule would be unnecessarily punitive. Geoff Chudleigh, the chief executive of Sagebrook Health Center, a Cedar Park nursing home with a history of earning high marks on federal quality measures, like self-reported patient wellness, said that staff members worry of potentially “subjective” inspections under such a rule that could quickly put them out of business.

“That’s scary, even for an administrator like myself that represents what I consider a good building with a strong management team,” Chudleigh said.

Schwertner said in a telephone interview that his rule targets only the “repeated bad actors.”

“This is about protecting our seniors, our parents and grandparents that are in nursing homes, and making sure that those who administer nursing homes are held accountable for their actions,” he said. “The penalties we have on the books currently need to be viewed as more than just the cost of business.”

The seven nursing homes Schwertner alluded to at the Aug. 13 hearing of the Sunset Advisory Commission, which evaluates the efficiency of state agencies, were found to have at least three incidents that placed residents in “immediate jeopardy” of harm or death during the past two years, according to state and federal inspection records.

At one of those facilities, the Care Inn of Abilene, a severely impaired woman last March went into septic shock from an untreated urinary tract infection caused by a catheter that was deemed to be no longer necessary. A federal report found "no evidence" that anyone had tried to remove the woman's catheter. When she arrived at the emergency room, two nurses "had to leave the room vomiting from the overwhelming odor," according to the report.

Diane Mabry, the Care Inn’s current administrator who did not work there at the time of the incident, referred questions to its parent company, Fundamental Long Term Care Holdings, which did not return phone calls seeking comment. “We’re proud of our home, our staff and our reputation,” a phone message for the Care Inn says.

In Austin, at the Oakcrest Manor Nursing Home, a resident went missing in January for more than 13 hours and jumped from a 20-foot bridge, fracturing his legs, ankles, ribs, pelvis and spine, according to a federal report. In March, the facility failed to conduct an investigation after another resident was found with blisters the size of quarters on his thighs, the report added.

Terry Rowan, the home’s administrator, declined to comment on the incidents. “We are pursuing legal recourse to stop the state, and that’s about all I can tell you,” he said, without specifying which state action he was referring to.

The Sunset Commission, comprising mostly lawmakers, unanimously approved Schwertner’s three-strikes rule, which will have to pass the Legislature to take effect, but it prompted discussion from Democrats on the commission. State Sen. Juan “Chuy” Hinojosa of McAllen said he worried the proposed rule could force the state to close deficient nursing homes prematurely, even if they had demonstrated improvements. “I would be cautious in this approach,” he said.

“What happens to the people when it’s unlicensed?” asked state Rep. Harold Dutton Jr. of Houston. “I’ve seen it happen where nobody wanted these people. Nobody would take them.”

Schwertner said the regulatory agency could help relocate the residents.

Closing a nursing home, which the state can do by blocking the renewal of its license, is sometimes necessary but “extremely difficult for residents,” said Melissa Gale, a Department of Aging and Disability Services spokeswoman. In the 2013 fiscal year, the state did not block any nursing home license renewals.

Rather than acting as an enforcement agency for nursing homes, Gale said, the department “is just acting as the survey agency” for the federal government, which certifies homes that receive Medicaid or Medicare payments. “As a result, most of DADS enforcement actions are actions that we recommend based on the findings of our investigations,” she said. Texas employs 274 inspectors who survey nursing homes about once per year and in response to complaints.

Warren, of the nursing home advocacy group, said he welcomed discussion about how the industry could “ensure the highest quality of care,” but that increased enforcement actions could hinder those efforts by “redirecting current resources away from patient-centered care.”

AARP Texas has endorsed Schwertner’s proposal and other recommendations that expand the state’s capacity to sanction negligent nursing homes because “almost nothing is being done to improve their performance or to penalize them,” said Amanda Fredriksen, a state director for the group. But, she added, “the majority of them provide decent care.”

Chudleigh, the administrator of the Cedar Park nursing home, agreed. “Nobody’s making a ton of money in this business,” he said. “We’re all on the same team. We all want to provide good care.”

Disclosure: The Texas Health Care Association and AARP are corporate sponsors of The Texas Tribune. A complete list of Texas Tribune donors and sponsors can be viewed here.