The COVID pandemic is exposing the many flaws in the nursing home system, including the government grading system that is supposed to be holding nursing homes to a higher standard. The Care Compare website, which is managed by the Centers for Medicare & Medicaid Services (CMS), is intended to help consumers find a quality nursing home facility. The CMS’s five-star ranking system has never had a great reputation among industry insiders, and its legitimacy is being called into question by a scathing investigation by the New York Times and a California lawsuit that alleges the system is rigged.CMS created the Care Compare website in 2008, replacing the previous Medicare Compare website with a five-star ranking system. The website gives nursing homes a one-to-five star rating based on its evaluation of three main criteria 1) how the facility fares in health inspections 2) its staffing levels, and 3) the quality of resident care. Based on these three scores, the facility gets an overall score.The concept is fine, but the CMS seems to be failing in the execution, especially in how it collects and verifies the data on nursing home performance.“The bar is so low for a facility to get five stars that a high ranking doesn’t have much meaning. However, if a facility has one star, you can bet that it has serious problems,” said Leah Barron, a founding partner with Brown & Barron, a Baltimore law firm that specializes in cases of nursing home abuse and neglect. “It’s still a helpful tool, but it should be much better.”

The New York Times found that 3,500 of the nation’s 15,000 homes were rated with 5 stars, and among those, more than 2,400 were cited for problems with infection control or patient abuse. Their investigation found inherent flaws with the way the CMS arrives at scores for each of the three main criteria in Care Compare:

• Inspections that are often not random and carry no consequences. The New York Times investigation suggests that “at least some nursing homes know in advance about what are supposed to be surprise inspections.” Also, some five-star facilities had chronic problems with abuse and neglect, yet the facility was not given a lower rating. In fact, the Times found that a 5-star facility was just as likely to ace an inspection as it was to flunk one.
• Inflated staffing levels. The New York Times found that nursing homes could easily inflate their staffing levels, such as by exaggerating worker’s weekly hours and counting employees who are on vacation.
• Health care quality based on self-reported data. Perhaps the largest flaw is that the CMS relies on the nursing homes themselves for much of the information. Not surprisingly, the information supplied by nursing homes is full of errors that make “the homes seem cleaner and safer than they are.” For example, the Times found that nursing homes frequently under-reported the number of patients on dangerous antipsychotic medications.

Because the CMS does not have a thorough system of auditing or validating much of the data it uses to create its five-star rankings, it is no surprise that unscrupulous nursing homes would game the system. The State of California is suing one nursing home chain, Brookdale Senior Living, for deliberately manipulating the system and misleading the CMS to get a higher ranking. The state alleges the nursing home falsified its payroll records to inflate the hours of certain health care professionals, which the CMS uses in its calculation of staffing level rankings.

The CMS provides oversight and enforcement for nearly all of the nation’s nursing homes. If a nursing home can have serious and repeated problems of under-staffing, cases of abuse/neglect, and lax infection controls and still get a perfect score from the CMS, what message is that sending? With the COVID pandemic, and the estimated 130,000 COVID deaths at nursing homes, we saw the consequences of the CMS’s extremely low standards. When the nation’s nursing homes were put to the ultimate real-world test, very few of them were prepared.

“When the deadly COVID outbreaks started happening at nursing homes, one might have expected that the five-star facilities would have done better at controlling the virus, but they were just as likely to have an outbreak as the low-star nursing homes,” said Brian Brown, a founding partner at Brown & Barron.

Addressing Nursing Home Problems

COVID-19 may be the first global pandemic most of us have experienced, but deadly infections are not new to nursing homes. There was plenty of warning that we might find ourselves in this situation. Nursing home owners that made the choice to understaff their facilities should be held accountable for the way their decisions have affected thousands of families nationwide.

Brown & Barron, LLC continues to fight for the victims of nursing home abuse and neglect. If insufficient care resulted in your loved one developing COVID-19 or another serious viral infection, we can help you determine whether you may be able to file a claim. Until our government steps up to make nursing homes provide the level of care patients deserve and families expect, we’ll continue to fight for those who suffer.

Call us today at (410) 698-1717 to schedule a free consultation with our experienced nursing home abuse attorneys.