Blossom South Nursing Home vs. the Federal Government

The following article was written by Ken Traub & Janet Gelein, co-chairs of the Elder Justice Subcommittee of Metro Justice, Rochester NY (a member of LTCCC) will appear in the Long Term Care Community Coalition’s Spring 2014 newsletter “Monitor”

Blossom South Nursing and Rehabilitation Center (Blossom South) in Rochester, NY has been a chronic substandard one-star (“much below average”) federally rated facility (http://medicare.gov/nursinghomecompare) that has been a Special Focus Facility for 33 months by the end of 2013.  The Federal Centers for Medicare and Medicaid Services (CMS) started the Special Focus Facility (SFF) program in 1998 to address nursing homes that have persistent, serious problems.  As readers of The Monitor know, the SFF program can be a valuable tool to improve, change ownership of, or close nursing homes that are persistently failing their residents. Once a facility is selected for inclusion in the SFF program, it receives special attention from the state, including a federally mandated requirement that the state conduct at least twice as many inspections as normal (approximately two per year). The goal is that within 18-24 months of being in the program, a facility will either develop long term solutions to its persistent problems or under its current ownership, be terminated from participation in the Medicare and Medicaid programs.

The Rochester Democrat and Chronicle, in a July 14, 2013 article by Patti Singer titled “City Nursing Home Among Worst In Nation” analyzed 18 DOH inspections of Blossom South between February 2010 and March 2013 that documented 169 deficiencies, of which 33 were repeat problems. The newspaper further reported that the rate of incidents and complaints for Blossom South was four times the state average.  As a result of the 18 deficiencies found by the DOH in their August 8, 2013 inspection, the DOH recommended to CMS the termination of the Blossom South’s provider agreement.   CMS then notified Blossom South that it will not pay Medicare and Medicaid funds for residents admitted after August 31st and will end all payments for existing residents on October 15, 2013.  According to the filings by Blossom South’s attorneys, Abrams, Fensterman LLP, 98% of its residents and gross revenue come from participation in the Medicare and Medicaid programs. 

Rochester is the 5th poorest city in the country out of the 75 largest metro areas, and contains 11 of the 12 lowest rated, 1-2 stars in homes in MonroeCounty. The Blossom South, LLC versus the Centers for Medicare and Medicaid Services case raises serious questions about: the oversight and accountability of nursing homes in poor cities that primarily serve low income people of color and rely heavily on Medicare and Medicaid payments; the inadequate staffing levels of many nursing homes, particularly those with low ratings on Nursing Home Compare (www.medicare.gov/nursinghomecompare); and the ability and intention of substandard nursing home owners to seriously resolve their homes’ long-standing inadequacies.   

On August 26, 2013 Blossom South filed for a preliminary injunction against NYS DOH and CMS to prevent them from discontinuing Medicare and Medicaid payments.  Federal Judge David G. Larimer granted a preliminary injunction on August 30th. On November 4th the judge heard both Blossom South’s arguments to prevent funding discontinuation and CMS’ arguments showing that the nursing home had failed to improve upon its 27 month status as a Special Focus Facility, and was thus deserving of funding discontinuation.  Before this hearing Blossom South also appealed the intended funding discontinuation to a CMS Administrative judge Carolyn Cozad who wrote in her decision:  “…I find that the facility had an appalling number of deficiencies that could harm its residents, any one of which puts it out of substantial compliance with program requirements.  CMS may therefore impose a penalty – including termination.”

On December 17 Federal Judge Larimer also ruled against Blossom South, thus allowing CMS to proceed with discontinuation of funding.  CMS then sent a “Final Termination Notice” to the Acting Administrator of Blossom South stating that they will terminate their provider agreement January 15, 2014 and that payments for services provided to residents admitted before December 17, 2013 would cease on March 16.  The letter stated that “…you are required to submit a closure plan to this office within 7 days of your receipt of this notice, and notify the residents immediately of the termination.”  Blossom South’s attorneys filed an appeal of Judge Larimer’s decision with the U.S. Court of Appeals on January 6th, and on January 8th asked Judge Larimer to stay his decision pending the outcome in the Court of Appeals.  If the judge grants the stay, which would require CMS to continue payments to Blossom South until the Court of Appeals decision, the home would be able to continue to operate for many more months.

Numerous studies have revealed that direct care staffing levels at nursing homes are the most critical indicators of resident safety and quality care. The November 2013 Nursing Home Compare data show Blossom South at 2.98 total nursing & aide hours per day per resident versus a NYS average of 3.92 and national average of 4.10. In Monroe County, Nursing Home Compare’s ratings of the twelve substandard 1-2 (out of 5) Overall star rated homes average 2.75 Staffing stars versus 3.81 for the seventeen 4-5 Overall star rated nursing homes. We believe that it is shameful that New YorkState does not have minimum staffing standards, as do 36 other states, for nursing homes!  Legislative bills to correct this serious deficiency have been languishing in NYS Senate and Assembly committees for years.  We call on all NYS groups and citizens interested in improving nursing homes to work together to motivate legislators to pass the Safe Staffing for Quality Care Act.

What Can You Do?

Access LTCCC’s free toolkit to advocate for safe nursing home staffing standards. The toolkit includes materials and resources on speaking directly to your community leaders. Or you can send a message to our state leaders by signing the online petition here!

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