III. African Americans Can't Break Even: The Provision of Quality Nursing Home Care
Ruqaiijah Yearby, African Americans Can't Win, Break Even, or Get out of the System: The Persistence of “Unequal Treatment” in Nursing Home Care, 82 Temple Law Review 1177 (Spring-Summer 2010) (214 Footnotes).
The Medicare and Medicaid Acts require the federal government to ensure that those residing in nursing homes are provided quality nursing home care. As the data *1184 shows, a majority of elderly African Americans reside in poor quality nursing homes compared to Caucasians. Thus, in spite of the passage of the quality requirements under the Medicare and Medicaid Acts, African Americans cannot break even because they are relegated to substandard nursing homes.
A. Surveying the Quality of Care in Nursing Homes
The U.S. Department of Health and Human Services (“HHS”) is the federal agency in charge of regulating the quality of care provided by nursing homes that receive funding from the Medicare and/or Medicaid programs. HHS delegated its duties to the Centers for Medicare and Medicaid Services (“CMS”) and the states. CMS has sole authority under the Medicare Act and shares the responsibility with the states under the Medicaid Act. Once a nursing home is certified to participate in the Medicare and/or Medicaid program, either CMS or the state conducts an annual recertification inspection every nine to fifteen months. This recertification process is called “survey and certification.” Regardless of who conducts the survey, the team is comprised of, among others, nurses, nutritionists, social workers, and physical therapists. The certification team assesses whether the nursing home continues to be in compliance with the Medicare and/or Medicaid conditions of participation.
*1185 The purpose of the conditions of participation is to ensure that residents of nursing homes receive quality physical and mental care by establishing participation standards to protect the patient's rights and health status. Nursing homes certified to participate in the Medicare and Medicaid programs are required to fulfill the conditions of participation for all residents, regardless of the race or payment status of the resident.
State surveyors use fifteen conditions of participation to review the compliance of nursing homes with the Medicare and Medicaid Act. These conditions include: resident rights, resident behavior, quality of life, resident assessment, quality of care, nursing services, dietary services, physician services, rehabilitative services, dental services, pharmacy services, infection control, administration, admission and transfer rights, and physical environment.
A nursing home is required to complete a resident assessment instrument for all patients upon admission and whenever there is a significant change in the resident's condition. The form also includes information about the resident's race. This information is recorded on the resident assessment instrument and then coded and *1186 transmitted to the Minimum Data Set (“MDS”). The MDS information is used to compile reports, such as the Facility Quality Measure/Indicator Report, which are used during the survey and certification process to determine whether the care provided to individual residents conforms to the Medicare and Medicaid conditions of participation.
If the survey team finds the nursing home out of compliance with the Medicare or Medicaid conditions of participation based on the MDS information and visits to the nursing home to observe the residents, it cites the facility for a deficiency and issues a Statement of Deficiencies (“SOD”) detailing the nursing home's noncompliance and factual incidents to support the allegations. In the SOD, each deficiency is assigned a scope and severity level based on the egregiousness of the offense. The scope is the number of residents affected and the severity level refers to the seriousness of the harm. The severity levels include actual harm and serious actual harm posing a risk of death (immediate jeopardy). This means that the more egregious the deficiency, the poorer the quality of the nursing home.
Once the findings of noncompliance are finalized, penalties are imposed, findings are made public on the Nursing Home Compare website, and the state long-term care *1187 ombudsman, the physicians and skilled nursing facility administration licensing board, and the state Medicaid fraud and abuse control units are notified. The Nursing Home Compare website provides information regarding the overall quality of Medicaid- and/or Medicare-certified nursing homes.
In 2008, CMS moved to a star rating for quality, which is published on the Nursing Home Compare website. The quality rating of nursing homes ranges from 1 for poor care to 5 for excellent care. A nursing home's overall quality star rating is based on information from the nursing home survey and certification results and the MDS information submitted by the nursing home. A plethora of research studies have noted racial disparities in the provision of quality nursing home care both in terms of poor patient outcomes and quality ratings.
B. Poor Patient Outcomes
Manifested in many different ways and forms, poor quality care ratings often translate into poor health outcomes for African Americans compared to Caucasians. A study of several states, including New York, Kansas, Mississippi, and Ohio, found that the quality of care provided to Caucasians and African Americans is different. African Americans usually receive poor quality care when compared to Caucasians. For example, the resident assessment instruments showed that late-stage pressure sores are more common to African Americans, while early-stage pressure sores are more common to Caucasians. According to the researchers, the higher rates of late-stage pressure sores in African Americans occur because they are commonly underdiagnosed. Hence, Caucasians received treatment before the pressure sores became too severe, while African Americans and other minorities suffered without treatment until the pressure sores became irreparable.
*1188 A 2008 study consisting of data from 8,997 nursing homes located in urban cities throughout the continental United States found that African American nursing home residents were more likely than Caucasian residents to be hospitalized for “dehydration, poor nutrition, bedsores and other ailments because of a gap in the quality of in-house [nursing home] medical care.” These ailments arise when residents are not receiving proper care. Researchers noted that of the 516,082 patients tracked, nineteen percent were hospitalized by the end of the 150-day follow-up period.
Of the nursing home residents hospitalized, twenty-four percent were African Americans, while only nineteen percent were Caucasians. The study further showed incremental increases in the risk of hospitalization for all nursing home residents regardless of their race or payment status as the percentage of African American residents in the nursing home increased.
Finally, data shows that African Americans are less likely than Caucasians to “receive appropriate pharmacologic management for a myriad of conditions and less likely to receive physical therapy upon admission.” Thus, the health of African Americans residing in nursing homes is often poorer than that of Caucasians residing in nursing homes.
C. Poor Quality Ratings by the Government
The quality of nursing home care is further assessed by nursing homes' compliance with Medicare and/or Medicaid conditions of participation. For example, national data compiled from the MDS information showed that African Americans reside in nursing homes with “lower ratings of cleanliness/maintenance and lighting.” The data also demonstrated that African Americans were admitted to nursing homes with forty-four percent more deficiencies than the nursing homes to which Caucasians were admitted.
In a 2004 national study of nursing home quality, researchers noted that the nursing home system was a two-tiered system--“high” and “low.” Characteristics of the “low-tiered” facilities include having Medicaid as the primary source of payment, poor quality of care, and a disproportionate number of African Americans. These *1189 low-tiered facilities have fewer nurses, more quality-of-care deficiencies, higher incidences of pressure sores, higher rate of use of physical restraints, and have less pain control and inadequate use of antipsychotic medications.
This study showed further that nine percent of Caucasians reside in low-tiered facilities compared to forty percent of African Americans. African Americans were three to five times more likely to be in low-tiered facilities than Caucasians. The placement of a majority of African Americans in low-tiered facilities is significant because these nursing homes are more likely to be terminated from the Medicare and Medicaid programs because of quality-of-care deficiencies. However, the termination of these homes has not led to African Americans being placed in better quality homes.
Moreover, a recent national study released in 2007 determined that African Americans were 1.41 times as likely as Caucasians to be in a nursing home cited with a deficiency that caused at least actual harm, 1.70 times as likely to stay in homes that were terminated from the Medicare and Medicaid programs, and 1.12 times more likely to be in a nursing home that was greatly understaffed relative to the residents' needs. Racial disparities in the provision of nursing home care are even more significant within individual states.
For instance, an investigation of Illinois nursing homes by the Reporter showed that of the fifty-one predominately African American nursing homes located in Illinois, none were given an excellent rating, i.e. a five-star rating. Twenty-nine percent of predominately Caucasian nursing homes in Chicago received five-star ratings. The predominately African American facilities received the worst federal ratings, a one, for quality and on average have more deficiencies than facilities where a majority of residents are Caucasian. Specifically, the Reporter found that in Chicago, the worst rating--a one on a five-point scale--was given to fifty-seven percent of African American nursing homes, compared with eleven percent of Caucasian nursing homes. “The Reporter also found that the staff at Illinois' black nursing homes spent less time daily with residents than staff at facilities where a majority of the residents are white.”
Overall, a review of the empirical data provides a dismal picture of the accessibility of quality nursing home care available to elderly African Americans. A majority of African Americans reside in poor quality nursing homes compared to *1190 Caucasians. However, African Americans' poor health status leaves them reliant on nursing home care with minimal options.