Backlog of complaints raises questions about N.J.’s ability to inspect long-term care facilities

This article originally appeared on NJ Spotlight.

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New Jersey regulators are facing a backlog of 4,000 nursing home complaints, including 700 that are considered “high priority” and some that were filed more than two years ago.

The backlog is fueled in part by a long-standing lack of staff and other resources within the Department of Health investigatory arm charged with responding to these concerns, according to state health care consultants Manatt. Their report in early June raised questions about New Jersey’s capacity to fully protect vulnerable nursing home residents during the coronavirus pandemic and outlined recommendations to strengthen its system of oversight.

While it is not clear how many complaints have been filed recently — the first COVID-19 case in New Jersey was announced March 4 — family members, staff and advocates have reported challenging conditions in which a dwindling workforce struggled to properly care for residents, some of whom reportedly went hours or days without hot food, a change of soiled undergarments, or regular medications.

State officials have also faced ongoing criticism over their response to the spread of COVID-19 in nursing homes and other long-term-care facilities whose residents and staff account for nearly half of the more than 13,000 COVID-19 deaths reported in New Jersey. Some critics have wondered if the DOH has the workforce it needs to oversee the industry, especially during the crisis.

“The Department of Health needs additional resources to be able to address all of those complaints, particularly the most serious ones, and to conduct their surveys according to the legal requirement,” lead Manatt investigator Cindy Mann told an Assembly panel in mid-June.

Manatt’s report — which took three weeks to complete and cost the state $500,000 — includes several recommendations for improving New Jersey’s long-term care system, which has reported more than 36,000 COVID-19 cases and 6,000 related deaths among residents and staff. In addition to increasing state oversight and regulatory muscle, the consultants stressed the need for better pay and opportunities for the workforce; greater transparency around nursing home ownership and sales; and a governor-appointed task force to pursue transformational change.

Legislation to be introduced Monday

“We need to have the inspection infrastructure bolstered. And we need more funding and we need more surveyors,” said Assemblywoman Valerie Vainieri Huttle (D-Bergen), who led the June  hearing and said she plans to introduce legislation Monday with Senate Health Committee Chairman Joe Vitale (D-Middlesex) to address issues raised by Manatt.

Donna Leusner, the  DOH communications director, acknowledged staff shortages had contributed to the buildup of the complaint backlog.  “A combination of retirements and hiring freezes during the previous two administrations left the Division of Health Facility, Surveys and Field Operations with a low number of surveyors. A lengthy hiring process and lack of competitive salaries are also factors,” Leusner said. “Several hiring freezes since 2008 contributed to staffing decreases and delays,” she added, and changes in federal regulations made the process more time-consuming.

DOH officials said Friday that while regular inspections were suspended during the first part of the pandemic, emergency surveys were still permitted.

“The Department does not have any immediate jeopardy level complaints waiting to be investigated,” Leusner said, referring to the most urgent category, which requires attention in less than 48 hours. “ Those complaints are triaged at the highest prioritization have been investigated in the required time frame.”

Since mid-April, 184 nursing homes have been subject to a DOH infection control survey, as required by new federal guidelines, Leusner said. The department has also hired an outside vendor to help them inspect all facilities by July 31, as required under those guidelines, she said. Leusner declined to prove additional information about the contract, including who the state is paying and how much.

During the pandemic’s peak in April, Department of Health Commissioner Judith Persichilli acknowledged that inspectors faced difficulties getting sufficient and properly fitted masks, gowns and other protective gear needed to complete these visits. Some inspections had to be done “remotely,” she noted, and local officials were tasked with responding to others.

State inspectors “are being deployed into hospitals and testing sites as well. This is a daunting task,” Persichilli said April 10, indicating an already small team had been stretched thin. “But we are on it. The frail and vulnerable of our nursing homes, we knew from the beginning, were going to be at risk and the statistics are proving that they are,” she said.

Four days later, Persichilli and Gov. Phil Murphy urged family members struggling to get information from nursing home operators about their loved ones to call the state’s nursing home complaint hotline if they had concerns.

Complaints — from staff, family members or residents themselves — can be submitted to the DOH by email, fax or letter, or by calling the free 24/7 hotline: 1-800-792-9770. These allegations are sorted and those that could put residents or staff in immediate jeopardy must be addressed within two business days, according to federal law.

Another option is to contact the state’s Long-Term Care Ombudsman, an independent office created in 1977 specifically to advocate for nursing home and assisted-living residents over age 60. Although it has not been able to enter facilities since the state suspended visits in March as a result of the pandemic, the office has its own investigators and can refer cases to the DOH, or law enforcement, for further action.

 ‘Afraid of what we’re going to find’

The office also accepts complaints by email, fax and letter and operates a separate hotline: 1-877-582-6995. Ombudsman Laurie Brewer said, under COVID-19, calls to her office are up by at least one-third and the office’s caseload has increased by 45% or more. “I’m really afraid of what we’re going to find when we get back in there,” she said of nursing homes.

According to the DOH’s website, New Jersey officials inspect nursing homes each year to assess compliance with “more than 1,500” state and federal regulations and “typically” respond to thousands of complaints annually; some industry representatives suggested that the 4,000 backlog likely contains largely lower-risk concerns. According to the DOH, there are currently 57 long-term care inspectors assigned specifically to annual nursing home inspections and another 16 are focused on complaints. The state is also looking to hire for an unspecified number of vacancies.

Jonathan Dolan, president and CEO of the Health Care Association of NJ, which represents nursing homes and other long-term care sites, said his group isn’t privy to the individual complaints or the state’s process. “However, the Department of Health conducts a very active inspection program that regularly inspects all of New Jersey’s long-term care facilities,” he said. “Any implication that regulatory oversight of New Jersey’s long-term care facilities is lax is not accurate.”

But several watchdog groups believe the backlog highlights the chronic underinvestment in government systems needed to protect society’s most vulnerable citizens, including the nearly 56,000 elderly and medically frail residents of the state’s 375 nursing homes.

“It’s a perfect demonstration of what cuts do. And we’ve accepted this as the new normal,” said Sheila Reynertson, a senior policy analyst with New Jersey Policy Perspective, a progressive think tank. “This is a system-wide issue of state government being starved and expecting it to function properly when we need it. That does not compute.”

NJPP released a policy paper by Reynertson in April that examined how cuts in funding for state operations over the past 12 years have impacted capacity in several departments; the decline was especially steep under former Gov. Chris Christie, a Republican. Reynertson found the DOH and the Department of Human Services, which also oversees some aspects of care, lost a combined 6% funding and 30% of their staff between 2008 and 2020.

‘Life and death consequences’

“The under investment has real consequences, life and death consequences, especially in the health department. And quite frankly, you get what you pay for,” Reynertson said. “If you under invest, of course you’re going to see lower quality of care.”

Reynertson’s analysis shows that under Gov. Phil Murphy, a Democrat who took office in 2018, funding for these departments has started to tick up slightly. But it takes years to rebuild significant staff, she and others noted, and the state faces a multibillion-dollar shortfall because of the pandemic.

Milly Silva, executive vice president of 1199SEIU United Healthcare Workers East, a union that represents some 8,000 nursing home workers in New Jersey, said the backlog of complaints was “not shocking at all,” given the underinvestment in state government under Christie and other actions that she said have gutted oversight and transparency related to nursing homes.

The DOH “does need additional resources to hire more inspectors to be able to follow up on more complaints,” Silva said. “We also need to implement a system of true oversight, not potentially be complicit in creating an opportunity for the nursing homes to present that they are functioning at a higher level than they are 365” days a year, she said, noting that facility operators generally know when inspectors are coming and many add staff and other supports just while regulators are on site.

Ombudsman Brewer, whose teams work closely with the DOH inspectors, agreed. “You’re talking about an industry that had significant flaws to begin with, and has now been without outside scrutiny for four months,” she said. “I fully support allocating more resources to the regulators, including the Department of Health, because I do not believe this is an industry that can regulate itself.”