Texas is putting troubled nursing homes on notice

Texas nursing homes beware: The state’s tolerance for mistakes is dropping fast.

In September, a new state law takes effect that will make it more difficult for long-term care facilities cited for repeat violations to avoid hefty fines from regulators.

It’s an effort by legislators and advocates for the aging to crack down on bad seeds in the nursing home industry. And there are a lot of them.

A January AARP Texas report found the quality of the state's nursing homes on average was “shamefully poor.”

More than half of them received just one or two stars out of a possible five in the federal Centers for Medicare and Medicaid Services rating system, according to a 2015 report from the Kaiser Family Foundation.

Meanwhile, the state’s Department of Aging and Disability Services, which regulates long-term care facilities, identified some 17,466 violations over the course of fiscal year 2015, but only took enforcement action — everything from fines to license revocations and denials — in 40 cases.

State Sen. Charles Schwertner, chairman of the Senate Health and Human Services Committee, sought to change this in the last legislative session. He filed a bill that, among other things, gives the state the ability to fine repeat offender nursing homes without first having a chance to fix violations. 

His bill — eliminating a so-called "right to correct" loophole for the most serious offenses — passed the Senate but never made it out of the House, and eventually got attached as an amendment to another successful health care bill. 

Schwertner said in April that the state “needs to send a clear and unambiguous message that we're serious about protecting our most vulnerable citizens from abuse and neglect.”

"Whether it's children in foster care, individuals with intellectual or developmental disabilities living in long-term care facilities, or our parents and grandparents residing in nursing homes, our state needs to do a much better job of protecting those who cannot protect themselves,” he said.

But Phillip Hopkins, president of TAG Management Services, which operates long-term care facilities in Texas, said businesses like his are facing mounting regulations and pressure to be perfect in an industry where mistakes can happen and staff turnover is high.

He said allowing them to correct problems before being hit with fines is crucial to providing high quality care. If one of his company’s nine nursing homes is dinged for a light bulb being unscrewed or a resident missing a shoe, he said, “we’re going to be chasing our tails.”

“We fix it and concentrate on it, but if they fine me on everything that happens it dilutes the system,” Hopkins said.

Legislators and advocates for the elderly have been vexed for years over how few troubled nursing homes are fined. In fiscal years 2014 and 2015, 328 of the state’s 1,200 nursing facilities accounted for 94 percent of all serious violations. But the state fined only 22 of them, according to the AARP report from earlier this year. 

The Sunset Advisory Commission, which reviews the effectiveness of state agencies, wrote in a July 2015 report to the Legislature that the Department of Aging and Disability Services "needs to step up to the plate and more aggressively take on its role as a regulator." But the commission also said that the department's power over long-term care facilities is "a regulatory touch so light that the industry feels little consequence from committing repeated violations." 

"In the agency’s defense, statutory provisions keep penalty caps low and prohibit the collection of fines for many violations later corrected by providers," the report said. The department "cannot effectively ensure the safety of these vulnerable populations while wearing statutory handcuffs and without effective enforcement tools." 

Bob Jackson, state director at AARP Texas, said because nursing homes have been allowed to fix violations without facing consequences, they've gone back to their old habits — over and over again. 

“There’s a cadre of nursing homes that are at the bottom and never get better,” he said. “They correct the one-time citation but there’s not an incentive ... There’s no sting in it for the provider.”

The nursing home industry puts the onus back on agency surveyors, who they say don't always enforce violations the same way.

Scot Kibbe, director of government relations for the Texas Health Care Association, which represents 600 nursing homes, said that kind of inconsistency makes it difficult for nursing homes to meet survey goals that will improve their standing. He said nursing homes can appeal a surveyor’s findings — but that's a long, costly process.

“Many are struggling for lack of funding, and then if you keep tacking on penalties, you’re not solving the problem," Kibbe said. "It’s maybe putting them further in the hole." 

Disclosure: AARP Texas, the Texas Health Care Association and the Kaiser Family Foundation have been financial supporters of The Texas Tribune. Find a full list of Tribune donors and sponsors here.