DC LONG TERM CARE OMBUDSMAN OFFICE OF THE DISTRICT OF COLUMBIA LONG TERM CARE OMBUDSMAN ANNUAL REPORT Fiscal Year 2005 (October 1, 2004 to September 30, 2005)
OFFICE OF THE DISTRICT OF COLUMBIA LONG TERM CARE OMBUDSMAN ANNUAL REPORT Fiscal Year 2005 (October 1, 2004 to September 30, 2005) Submitted by: Jerry Kasunic DC Long Term Care Ombudsman Legal Counsel for the Elderly 601 E Street, NW Washington, DC 20049 (202) 434-2120
OFFICE OF THE DISTRICT OF COLUMBIA LONG TERM CARE OMBUDSMAN ANNUAL REPORT FY 2005 I. HISTORY The District of Columbia Office on Aging in 1975 established the Office of the District of Columbia Long Term Care Ombudsman with grant funds from the Administration on Aging. The 1978 amendments to the federal Older Americans Act required each state and the District of Columbia to establish a state level Long Term Care Ombudsman Program responsible for: investigating and resolving complaints about nursing homes, encouraging citizens' involvement in nursing homes, and monitoring the development and implementation of regulations, laws and policies affecting nursing home residents. A 1981 amendment to the Older Americans Act extended the ombudsman program's jurisdiction to board and care homes, called community residence facilities (CRFs) in the District of Columbia. A 1987 amendment to the Older Americans Act elevated the ombudsman from a program to an office, required that adequate legal counsel be available and granted immunity to ombudsmen for good faith performance of their duties. A 1992 amendment ensured against conflicts of interest and emphasized the role of ombudsman as advocate for change to improve the quality of care and quality of life for residents of long term care facilities. The D.C. Office on Aging operated the ombudsman program until 1985, at which time a grant was awarded by DCOA to Legal Counsel for the Elderly, part of the American Association of Retired Persons (AARP), to operate the program. The ombudsman program has benefited from placement at Legal Counsel for the Elderly because of the available legal support and because of the access it has to the vast AARP network for the recruitment of volunteer resident advocates. Passage of the Long Term Care Ombudsman Program Act of 1988, D.C. Law 7-218, D.C. Code Ann. 7-701.01 et seq., strengthened the program by providing the ombudsman with the tools necessary to carry out the responsibilities mandated by the federal Older Americans Act. The District law also reinforced the Ombudsman's emphasis on advocating for and protecting the rights of residents of nursing facilities, assisted living residences, and CRFs.
II. STAFFING The Office of the D.C. Long Term Care Ombudsman is operated by the D.C. Long Term Care Ombudsman, who is appointed to the position by the Executive Director of the D.C. Office on Aging. The Office also employs a full-time ombudsman who focuses on complaint resolution and advocacy in assisted living residences and CRFs. In addition, Legal Counsel for the Elderly contracts with two community-based organizations, United Planning Organization and Emmaus Services for the Aging, to provide regional/local ombudsman services for residents in nursing facilities. Each local program has a full-time ombudsman to advocate for the rights of residents and investigate complaints on behalf of residents in nursing homes. Emmaus Services for the Aging monitors the quality of care of residents in Northwest and Southwest Washington. United Planning Organization (UPO) monitors quality of care in Southeast and Northeast Washington. Both programs have a cadre of trained volunteer advocates to maintain a continuous community presence in the nursing facilities in their service areas. III. LEGAL AUTHORITY The Office of the D.C. Long Term Care Ombudsman is charged by D.C. statute with the following responsibilities: Advocate for the rights of older persons and other persons who are residents of nursing facilities, assisted living residence, and community residence facilities, Investigate and resolve complaints made by or on behalf of an older person or other person who is a resident of a nursing facility, assisted living facilities, or a community residence facility, Monitor the quality of care, services provided, and quality of life experienced by older persons and residents to ensure that the care and services are in accordance with applicable District and federal laws, Establish and conduct a training program for program staff and volunteers, and Establish and maintain procedures to protect the confidentiality of information regarding residents. These responsibilities parallel those in the federal Older Americans Act, which also governs operation of Ombudsman activities.
IV. SCOPE There are approximately 5880 residents in licensed nursing facilities and community residence facilities in the District of Columbia. The 20 nursing facilities that are licensed by the District of Columbia have a total capacity of about 3100 beds. There are also two nursing facilities with a combined total of 420 beds that are operated by the federal government and are not licensed by the District of Columbia. St. Elizabeth's Hospital operates a 120-bed Medicaid-certified nursing home unit that is not locally licensed, thus does not fall under the Ombudsman Program s jurisdiction. There are approximately 177 licensed community residence facilities with an estimated total capacity of over 1,880 beds, and 13 assisted living residences with roughly 900 units (not licensed by the District of Columbia). In addition, there are an unknown number of unlicensed CRFs operating in the District of Columbia with an unknown number of beds. V. FY 2005 ACTIVITIES A. Complaint Resolution and Information Services YTD Number of requests for information 1065 Number of requests fulfilled 1065 1065 Number of individuals who filed complaints 555 Number of cases closed 551 Number of cases still pending 4 Number of complaints filed 1 1938 Number of complaints investigated 3 1917 Number of complaints for which government policy 10 or regulatory change or legislative action was required to resolve 1. A complaint is defined as any problem or issue on which an ombudsman takes action on behalf of a nursing home or CRF resident. The number of complaints is larger than the number of individuals who file complaints because one individual often has several different complaints. 3. The difference between the number of complaints filed and investigate are 21. 1 complaint withdrawn, 14 complaints not resolved to the satisfaction of the resident or complainant, and 6 cases carried over into the new fiscal year.
Number of complaints that were withdrawn by the resident or complainant Number of complaints which were referred to other agencies for resolution Number of complaints where no action was needed or appropriate Number of complaints that were partially resolved but some problem remained Number of complaints that were resolved 4 to the satisfaction of resident or complainant Number of complaints not resolved to satisfaction of resident or complainant 1 160 47 1288 3997 14 B. Hearings to Challenge Involuntary Moves of Residents Total number of 6-108s Discharge 2411 Notices received Notices of involuntary moves received 29 Hearing requests made to challenge an 29 involuntary move Number of hearings held 22 (These include status conferences and mediation that led to resolutions favorable to the residents) Cases won (Including status conferences 22 and mediation) Number of requests withdrawn (negotiated a 7 satisfactory solution) 4 Resolved: The complaint/problem was addressed to the satisfaction of the resident(s) or complainant.
C. Complaint Analysis 1. Of the 1917 complaints investigated, the following are the percentages that relate to: Resident Care: 553 (28.8%) Residents Rights: 540 (28.2%) Quality of Life (included are dietary & 350 (18.3%) environment): Administration: 381 (19.9%) Problem with Outside Agencies: 93 (4.8%) 2. Of the 1917 complaints investigated, the following are percentages that concern: Nursing Facilities: 1668 (87.0%) Community Residence Facilities: 198 (10.3%) Outside Agencies: 51 (2.7%) 3. Number of grievances received concerning ombudsman breach of confidentiality 0 D. Maintaining A Presence In Nursing Facilities and CRFs Nursing Facilities 1. Total number of hours spent by ombudsman staff and volunteers in nursing facilities Emmaus Services for the Aging 1382.00 United Planning Organization 1629.25 TOTAL 3011.25 Total number of volunteer ombudsmen 20
2. Community Residence Facilities (CRFs) Approximate number of CRFs Approx. number of Assisted Living Facilities 177 (+ residents) 13 (900 units) Licensed CRFs visited 154 Suspected unlicensed CRFs visited 4 Assisted Living Facilities visited 7 E. Training and Outreach 1. 41 training sessions on residents rights were provided to over 200 staff, paraprofessionals, and directors of MHCRFs and CRFs. 2. Monthly training was provided to the ombudsman volunteers and ombudsman staff to enhance their advocacy skills and support activities in nursing homes and CRFs. Local ombudsman recruited and trained new volunteers throughout the year. 3. The DC Long-Term Care Ombudsman Program hosted two city-wide trainings for CRF providers: Residents Rights and Discharge and Transfer Procedures for Residents and Providers. The speakers were from DOH, DMH, Howard University and the Ombudsman Program. More joint training sessions between D.C. government agencies and the Ombudsman Program will continue in FY 2006. 4. The Ombudsman Program conducted 3 trainings with the Senior Medicare and Medicaid Error Patrol Project to nursing home resident and family councils, and to the general public. The topics were fraud, waste, abuse and errors toward Medicaid beneficiaries, and the new Medicare Rx Discount Card fraud. More joint seminars will continue in FY 2006. 5. 56 presentations about the Ombudsman Program and residents rights were made to family councils, resident councils, hospitals, MHCRF, CRF day programs, health care paraprofessionals, and civil advocacy groups.
IV. Significant Achievements The D.C. Long-Term Care Ombudsman Program has achieved the following in FY 05: Filed an action for writ of mandamus against the city for failure to develop the Model Resident Transfer and Discharge Plan, mandated by D.C. Law 6-108 in 1986, after countless written requests by the Ombudsman Program and meetings with DOH over the past 3 1/2 years regarding the Model Plan produced the final amendments and mediation process on October 1 st. The Ombudsman Program, represented by Bill Isaacson of Boises, Schiller, and Flexner LLP; and representatives for the Department of Health met at the DC Superior Court and the case was finalized and ruled upon by Judge Duncan-Peters in the favor of the Ombudsman Program, and the judge stated that the District must create, implement and maintain a discharge resident model plan explaining the Mayor s, or his/her designee s, responsibility when an emergency LTC facility closure takes place. In addition, the Judge verbally stated to the parties that the Model Plan is not just for natural disasters or revoked licensure closures, but the parties must attempt to plan for bio-terrorist or bio-hazardous emergencies. This case was settled out of court by Mr. Isaacson and the Ombudsman Program when the Department of Health conceded to include language that specifically stated that the Mayor shall assist providers during a closure, when requested by the provider. Advocated for a resident who was illegally discharged from a nursing home on the basis of his/her disability by filing a petition for review in the D.C. Court of Appeals, after the Administrative Law Judge claimed that his office did not have the authority to re-admit the resident to his/her nursing home. After drafting a Motion for a temporary restraining order, completing ongoing research, filing an ADA claim against the nursing home, notifying in writing the Department of Health, Health Regulations Administration; and the regional Centers for Medicaid and Medicare Services, this case was heard by the D.C. Court of Appeals in February 2005 after roughly 18 months of trying to resolve the issue through administrative means. In April, the D.C. Court of Appeals ruled against the District of Columbia government, and the legal representative of the nursing home industry, in a precedent-setting decision stating that the Administrative Law Judge has the power to return a nursing home resident to his/her bed after receiving an involuntary discharge notice. In Paschall v. The Washington Home, brought by Legal Counsel for the Elderly and the Office of the D.C. Long-Term Care Ombudsman Program, the Court of Appeals guaranteed the constitutional rights of long-term care residents by preventing nursing homes, and other LTC facilities, from dumping difficult residents in hospitals. In FY 2005, on the behalf of long-term care residents, the Ombudsman Program filed 49 administrative court and agency filings in Medicaid decertification cases, discharge and transfer cases and discrimination complaints. The Ombudsman Program estimates that there were approximately three administrative court filings per case with submissions dealing with Hearing Requests, Motions to Quash, Motions for Summary Judgment, Motions to Dismiss, Motions for Continuance, Status Reports, Consent
Agreements and Response to Orders. In the recent past, the Ombudsman Program averaged about 24 filings a year, but this number has doubled the changes in administrative law and the complexities of each individual case. Thus, the Program s attorney has needed to file more motions, status reports, and consent agreements in order to ensure that each resident s case was advocated in a timely fashion as well as giving the resident the opportunity to assert more legal control over his or her case. The Ombudsman Program will begin collecting data in this area in order to assess systemic advocacy topic areas. Testified at a series of quality of care hearings held by exiting Councilmember Sandy Allen, and entering Councilmember David Catania, Chair of the Committee on Health, to report the problems of discrimination in admission on the basis of disability by D.C. nursing homes, the failure of the Health Regulatory Administration to regulate and enforce the federal residents rights regulations and the issues affecting the Office of Inspector General (OIG) and Metropolitan Police Department (MPD) prosecute cases of long-term care fraud, gross neglect and abuse. Chairperson Catania created a Long-Term Care Task Force made up of 17 long-term care professionals advocates, researchers, providers, family and residents of facilities, and to analyze and make legislative recommendations, on how to strengthen community services, ensure quality of care and life in long-term care facilities, and to evaluate and suggest how to strengthen government oversight addressing the following four areas: access, home and community based services, quality of care, and workforce. The Ombudsman Program participated in both the Access and Quality of Care subcommittees and was an active participant in creating report with recommendations that was submitted to Mr. Catania in October 2005. Participated in Councilmember Sandy Allen s Elder Summit where recommendations regarding amendments to the DC nursing home regulations were proposed. These recommendations, which included the Reduction of Chemical and Physical Restraints, and Increase of Nursing Home Staff Ratios, were subsequently included in Councilmember Allen s Quality of Care for Seniors Citizens Act of 2004. These recommendations finally went into effect January 1, 2005 under Title 22 DCMR, Chapter 32. Throughout fiscal year 2004 and into 2005, the Ombudsman Program hosted a series of teleconferences and assisted with the creation and implementation of a Regional Long-Term Care Ombudsman Program training that was held in Gettysburg, PA. The Office of the D.C. Long-Term Care Ombudsman Program assisted in obtaining three special guest speakers to train ombudsman volunteers and staff on the following issues: discharge and transfer residents rights, abuse and neglect, and Medicaid fraud, waste and abuse. The D.C. Long-Term Care Ombudsman Program s attendance was near perfect with 18 volunteers and all paid staff present. Another annual spring training event is being planned for 2006. Participated, with several other legal and consumer advocacy groups, in convincing the
DOH, Medical Assistance Administration (MAA) to expand the Elder Persons and Disabilities waiver to include health care services for Medicaid beneficiaries residing in assisted living residences, and to create a program for client directed services. These two new additions have been written into the Medicaid policy and state plan, passed CMS approval, been approved by the City Council Committee of the Whole and is now being written into the Medicaid State Plan for FY 2006. The Ombudsman Program successfully prevented an elderly resident of a community residential facility from being involuntarily discharged because of a defective Notice of Discharge. In this case, the administrative law judge agreed with the Ombudsman Program that the case can be dismissed if the Notice of Discharge does not contain all of the statutorily required information, such as: alternative placement, address and contact information, name of supervisor overseeing discharge, and the reason for the discharge or transfer from original facility. The administrative law judge does not have to rule on the substantive issues if the Notice is defective on its face. The Ombudsman Program has finally won on the issue that a notice can be dismissed based on a notice failing to meet these requirements. Last, but surely not least, the Ombudsman Program represented Ms. McCombs, a nursing home resident who was facing Medicaid Decertification of her nursing home level of care, which ultimately would remove her from the D.C. Medicaid Program and her nursing home if this case was not challenged. The Ombudsman Program accepted this case due the fact that the Decertification Notice from the D.C. Department of Health, Medical Assistance Administration and the Delmarva Foundation, who issued the notice, did not explicitly explain the reasons why Ms. McCombs level of care drastically changed. The Ombudsman Attorney argued that the lack of reasoning for the change in level of care violated both D.C. Medicaid and Federal Medicaid Laws; each law states that the resident and legal representative must receive a detailed explanation of why a beneficiary would become ineligible and decertified. The Administrative Law Judge agreed with the Ombudsman Program s argument and upheld the both the local and federal laws and decided that the DOH, MAA and Delmarva must reword their notice and inform the resident, and/or legal representative, of the specific reasons why he/she would be terminated from the Medicaid Program. VII. RECOMMENDATIONS FOR LEGISLATIVE SYSTEMS AND REGULATORY CHANGES 1. Implementation of the Medical Necessity Definition by MAA Problem: The Medical Assistance Administration (MAA) of the D. C. Department of Health published a proposed rule in the D. C. Register that defines what Medically Necessary Services a beneficiary is entitled to receive under the Medical Assistance ( Medicaid ) program. Under the proposed rule, the District will reimburse providers who offer only medically necessary services to Medicaid beneficiaries. The District of Columbia s proposed rule ignores the distinction between the previous skilled and
intermediate levels of care. The rule requires a Medicaid beneficiary to need skilled nursing services or skilled rehabilitiation services that must be performed by professional or technical personnel on a twenty-four (24) hour basis, seven days a week and services on a daily basis above the level of room and board. Persons who require nursing services on a daily basis but not necessarily skilled nursing or rehabilitation services will not qualify for Medicaid, or be eligible to apply for Medicaid under the proposed definition. Barriers to resolution: The Department of Health, Medical Assistance Administration is currently revising the September 3 rd, 2004, proposed emergency Medicaid eligibility rule and is willing to work with grassroots and advocacy agencies; however, in the past 12 months MAA has not produced a new amendment or drafts that could be reviewed and commented on by the general public. Recommendation(s) for system-wide change: 1) advocate with other long-term care stakeholders to maintain the original Medical Necessity regulatory language that matches federal language; 2) create and share amendment language with other advocacy agencies and DOH, MAA to ensure residents rights are not violated or overlooked by other parties, and 3) continue to advocate for DOH, MAA communication and collaborative strategies with sister D.C. govt. agencies, i.e.: Housing Authority, Dept. of Mental Health, and D.C. Consumer and Regulatory Affairs, in order to locate and maintain affordable housing for those individuals who may be decertified from Medicaid if this rule goes into effect in FY 06. 2. Inadequate Staffing Problem: Staffing shortages continued to be a major issue in D.C. nursing facilities due in part to poor benefits and wages of certified nursing assistants (CNAs). The high maintenance needs of residents and low retention rate for nursing staff is the most serious area of concern for nursing home administrators. Another area of concern is the lack of modern training that would affect the culture and supervision of staff, which becomes a systemic issue affecting staffing ratios. As Health Care Financing Administration (now Centers for Medicare and Medicaid Services, CMS) studies have pointed out, there is a direct relationship between quality of care and nursing staff. These topics were addressed in Council Member Catania s Long-Term Care Task Force, whose Workforce subcommittee, began researching training and staffing ratio issues. The Long-term Care Ombudsman Program will continue to work with all task force members and to advocate for legislation and regulation changes using the recommendations within the Long-Term Care Task Force s report. Barriers to resolution: 1) Fiscal: the City Executive Branch and the City Council will need to infuse funding in D.C. s 2007 fiscal budget to ensure training standards are met, 2) the D.C. Board of Nursing, not currently involved in the curriculum development, will need to collaborate with the Ombudsman Program and the Task Force members to create a training curriculum, and 3) DC Health Care Association (DCHCA) will need to be a participant, along with other LTC stakeholders, to create, implement, and maintain training
standards to improve delivery of services. Recommendation(s) for system-wide change: 1) The Ombudsman Program will need to attend each LTC public hearing pertaining to improving quality of care and life in LTC facilities, especially those hearings targeting nursing homes, 2) Openly discuss training curriculum with the President of the DCHCA, and 3) the Ombudsman Program will need to be active in the collaborative efforts in creating and maintaining training standards. 3. Amendments to and Implementation of the D.C. Assisted Living Residence Regulations Act of 2000 Problem: D.C. assisted living residence legislation was passed in January 2000 but do not strengthen the protections for assisted living residents nor provide the District with an effective enforcement system(s). Barriers to resolution: The Department of Health (DOH) has not yet enforced the Assisted Living Resident Regulatory Act of 2000. Government resources have yet to be established to create a strong enforcement division, licensing protocols, and sections of the regulations must be revisited and revised so as not to conflict with alternative DC Municipal Regulations, Title 22, Chapter 34 regulations governing residents rights, money management counseling, and regulatory enforcement. Recommendation(s) for system-wide change: 1) advocate for the development of an adequate training, implementation and enforcement 2) advocate for expansion of enforcement and complaint investigation staff/division; 3) advocate for strong residents rights regulations, including monetary sanctions and adequate assisted living licensing protocol standards; and 4) collaborate with stakeholders to create a research group to analyze and research best practices and strategies in order to introduce cultural and managerial change in assisted living residences. 4. Insufficient Oversight and Weak Enforcement of Board and Care Homes (Community Residence Facilities-CRFs), (Mental Health Community Residence Facilities-MHCRFs) (Supported Independent Living-SILs) Problem: Many residents in CRFs, MHCRFs, and Supported Independent Living under 22 DCMR Chapter 38 continue to endure unhealthy and unsafe physical environments that provide inferior quality care and services that go unmonitored. In addition, a few providers and agencies fail to respect residents rights, and prevent financial, mental and physical abuse and neglect of residents. Barriers to resolution: 1) Unmonitored providers are not sanctioned or held to any licensing standard since enforcement teams (DOH, HRA) are not upholding and enforcing Chapter 34 of the DCMR, 2) DMH residents are being funneled to supported independent living without monitored wrap-around services ensuring quality and consistency, and 3)
DMH Supported Independent Living (SILs) providers are not sanctioned or held to the licensing standards due to the definition of their contracted services, even though providers continue to deliver the same mental health community services to residents. Recommendation(s) for system-wide change: 1) advocate for both the Department of Health and the Department of Mental Health to impose higher monetary penalties for civil infractions by unlicensed and licensed CRF providers; 2) advocate for DCRA to assist with inspections of suspected unlicensed, unsafe housing programs; 3) register the severity of the issues with policy makers and legislators; 4) continue to work with advocates, legislators, regulators and the community to generate a supply of quality CRFs and assisted living residences; 5) continue to work closely with the DMH to ensure that workable policies and procedures are created, implemented, and enforced and that DOH develops administrative policies and procedures for its CRF regulatory system; and 6) continue to work closely with DMH and DOH ensuring that the MOA agreements are upheld by each agency, including: sharing information regarding complaints, unusual incidents, annual reports, and quarterly meetings.
Submitted by: Jerry Kasunic DC Long Term Care Ombudsman Legal Counsel for the Elderly 601 E Street, NW Washington, DC 20049 (202) 434-2120