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Critics wonder about oversight of nursing homes in Kansas

When it comes to providing sufficient nursing staff, preventing bedsores or even doing basic housekeeping, Kansas nursing homes rank among the worst in the nation.

So who in Kansas government is looking out for the old and frail residents of these homes now?

Former members of the nursing home industry appointed by Gov. Sam Brownback.

That situation has state and national advocates for the elderly up in arms. They fear industry interests may hold sway over the needs of nursing home residents, with potentially critical consequences.

“I’m not overstating it, it’s life or death,” said Mitzi McFatrich, executive director of Kansas Advocates for Better Care.

“Right now, there’s a heavy weight on the provider side,” McFatrich said. “The concern is that consumer needs will be second to industry.”

But spokesmen for Brownback and the nursing home industry say that’s not going to happen. They say the people whom the governor has put in charge have expertise and experience, and they’ve already done more to clean up the state’s nursing homes than previous administrations have.

“Where is the problem?” asked Debra Harmon Zehr, president of LeadingAge Kansas, the state association of nonprofit nursing homes and other services for the elderly. “The reality does not reflect the concern.”

Brownback placed several people with nursing industry ties in high-level Department on Aging positions soon after he took office last year. They include the department’s secretary, Shawn Sullivan, and the commissioner for licensure, certification and evaluation, Joe Ewert.

Sullivan was administrator of a nursing home in Wichita. Ewert worked for LeadingAge Kansas.

But the concerns of advocates such as McFatrich grew more urgent last month when Brownback appointed a nursing home administrator, Barbara Hickert, to the post of long-term care ombudsman. She is the third industry person in a row to hold that job, following appointees by former Govs. Kathleen Sebelius and Mark Parkinson.

Federally mandated in each state under the Older Americans Act, ombudsmen serve as the official government advocates for nursing home residents. They try to resolve complaints filed by residents and their families. If they can’t work out a problem, they can advise residents about their options or forward the case to government regulators. Ombudsmen also maintain networks of volunteers who advocate for residents across their state.

A nursing home administrator is the wrong person to place in that position, said Brian Lee, a former Florida ombudsman and executive director of the Florida-based organization Families for Better Care.

“It is a fox guarding the hen house, that’s what I see here,” Lee said.

“Barbara Hickert may be a fine person and run a fine nursing home. But she will be looking through an industry lens. That can slow down advocacy or stop it altogether.”

Lee has asked the federal Administration on Aging to investigate Hickert’s appointment for possible conflicts of interest.

Another advocacy group, Voices for Quality Care, based in Maryland, has written to Brownback asking him to reconsider Hickert’s appointment.

“There are many difficult issues that long-term care ombudsmen and people needing long-term care services must deal with. Conflict of interest on the part of an ombudsman program should not be one of them,” the group’s chairwoman, Kate Ricks, said in her letter.

Hickert said she understands how some may feel her background creates a conflict of interest, but she doesn’t think there is one.

“In my opinion, a good nursing home administrator is a patient advocate,” she said. “That’s how I’ve always looked at my career in long-term care and will continue to look at it.”

Hickert said she also has been a family member of a nursing home resident. “So I have an appreciation of that experience as well.”

Brownback spokesman Sherriene Jones-Sontag, who spoke on behalf of Sullivan, Ewert and Hickert, said the governor’s appointees are all well-qualified for their jobs.

“It helps to have people involved with quality and system improvement efforts to have had successful experience working in the field,” Jones-Sontag said.

Several nursing homes Sullivan led won state awards; Ewert had been involved with a retirement community that is nationally recognized for its innovation.

“Barb Hickert’s record is impeccable and (she) ran one of the best nursing homes in the country,” Jones-Sontag said.

But it’s rare for someone from the nursing home industry to be appointed as state ombudsman, said Mark Miller, the ombudsman for New York and vice president of the National Association of State Long-Term Care Ombudsman Programs. “I can’t think of a single colleague.”

“I think that’s something the average person would have a question about,” Miller said. “ ‘Where do this person’s allegiances lie?’ ”

Most ombudsmen have backgrounds in fields such as the social sciences or in programs for the elderly, Miller said.

For example, before Carol Scott was appointed as Missouri’s ombudsman in 1989, she had been legislative liaison for the state’s Division of Aging and a budget analyst for the state Medicaid program.

In Kansas, however, the previous two ombudsmen appointed by the administrations of Sebelius and Parkinson were from the nursing home industry.

But the people these governors appointed as secretary of aging and as commissioner of licensure, certification and evaluation had spent most of their careers in government, advocacy or business, rather than in the nursing home industry.

The background of the people appointed to these posts is important, McFatrich said, because the commissioner is the person responsible for nursing home inspections and the secretary signs the orders to levy fines on homes that fail to comply with regulations.

The annual state inspections, called surveys, are “really the only outside look at the care being provided in a nursing home,” McFatrich said. “If they lack vigor, deficiencies might not be cited, or cited as lesser than they are.”

These surveys show that Kansas nursing homes have a history of running up more significant problems than homes in most other states.

Researchers at the University of California, San Francisco analyzed federal data on the surveys and inspections prompted by complaints against licensed nursing homes in the U.S. since 2005. They compared the percentages of nursing homes that failed to meet certain standards in each state.

In 2010, the most recent year the researchers examined, Kansas nursing homes averaged 14.95 deficiencies, compared with a national average of 9.37.

More than half the nursing homes in Kansas were cited for food sanitation problems, inadequate patient care plans or for prescribing unnecessary drugs.

When Kansas Advocates for Better Care checked the data earlier this year, 93 of the 342 nursing homes in Kansas had been cited during their most recent inspection for problems that caused residents actual harm, McFatrich said.

These kinds of violations include physical or sexual abuse of a resident, or failing to treat bedsores or to prevent falls.

“That should be something none of us tolerate,” McFatrich said. “The fact that we do tolerate it, that’s shameful.”

Nursing home inspections in Kansas compare unfavorably to those of other states for a simple reason, according to Joleen Klausman of the Kansas Health Care Association, which represents both for-profit and nonprofit nursing homes.

“Our survey process is very tough, very strict,” Klausman said. “Do I think we operate less well than in other states? I do not.”

Sullivan, the Kansas secretary of aging, has promised to put nursing home “report cards” on line that include results of resident surveys. Last fall, his department revoked the license of a poorly performing nursing home in Wichita, the first such state action in more than a decade. The department also has shut down some small group homes that had poor records.

“It shows an intent to clean up chronically poor providers. I’ve never seen that happen before,” said Zehr of LeadingAge Kansas.

Sullivan most recently had been the executive director of the Kansas Masonic Home in Wichita. Medicare gives the nursing home an average rating, three stars on its five-star rating system. An inspection last year cited it for eight deficiencies. And investigations of complaints against the home in 2010 turned up seven problems.

Hickert, the new ombudsman, was administrator of the nonprofit Dooley Center in Atchison. Dooley Center has a top five-star rating from Medicare and hasn’t been cited for any deficiencies in recent years.

Even so, Lee, the advocate for nursing home residents, is skeptical about Hickert’s appointment.

Hickert also was on the board of LeadingAge Kansas and a member of Kansas Adult Care Executives.

“She is someone steeped in the nursing home culture,” Lee said.

Current federal law allows states to appoint ombudsmen from the nursing home industry, as long as they sever their financial ties.

But the National Association of State Long-Term Care Ombudsman Programs is working to change that, said Miller, its vice president.

The organization is supporting proposed changes to the Older Americans Act that would require a two-year “cooling off” period before someone employed by a long-term care facility or a related organization can be appointed as an ombudsman.

“That gives some additional protection against even the perception of conflict,” Miller said. “If I’m seen as being a representative of industry, how can I be seen as an advocate?”