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Gov. Cuomo Seeking New Agency to Police Care of Disabled

ALBANY NY 

Gov. Andrew M. Cuomo, seeking to strengthen the state’s chronically weak response to abuse of disabled people who live in publicly financed homes, plans this week to propose creating an agency dedicated to investigating problems with the care of nearly one million vulnerable New Yorkers.

The new law enforcement and oversight agency would monitor those in state or private care who have developmental disabilities like autism or cerebral palsy, mental illnesses including schizophrenia, and other conditions, among them traumatic brain injuries, that put them at risk. The agency would employ a special prosecutor and would be granted subpoena power and the authority to convene grand juries, according to a draft plan obtained by The New York Times.

The administration is also proposing tougher laws to punish those who abuse people with developmental or other cognitive disabilities. And Mr. Cuomo would, for the first time, expand the reach of the state’s Freedom of Information Law by requiring the thousands of nonprofit organizations that house the bulk of those in state care to make abuse and neglect records public.

“I think it raises the bar significantly on the degree to which states address the issue of abuse and neglect across all disabled populations,” said Nancy Thaler, the executive director of a national association of state agencies that serve developmentally disabled people. Ms. Thaler, who was briefed on the plan, called it “unprecedented in breadth and scope.”

The administration’s proposal comes in response to a series of articles in The Times that described widespread problems in the care of people with developmental disabilities, some of whom died as a result of abuse. The state had been transferring abusive employees from group home to group home, abuse cases were rarely referred to the police, and employees were hired with criminal records. Unions often blocked any efforts to fire abusive workers, and nonprofit groups caring for disabled people were using Medicaid to finance seven-figure compensation packages for executives.

The state’s response to abuse of the vulnerable is also criticized in a report, to be released this week, written by Clarence Sundram, the first head of the Commission on Quality of Care. In a draft of that report, reviewed by The Times in March, Mr. Sundram said that deficiencies in state law “expose vulnerable people to needless risk of harm” and made it more difficult to provide clear training to caregivers.

Mr. Cuomo plans this week to propose a package of legislation that would create the agency, tentatively called the Justice Center for the Protection of People With Special Needs. His proposals have little precedent in their singular focus on policing for groups that are often overlooked; the governor and his aides have described their effort as a civil rights issue, harking back to language they used while championing same-sex marriage last year. “We are responsible for people’s lives, literally,” the governor said last year.

His proposals, however, would probably face concerted opposition from public employee unions, which hold considerable sway over the Legislature. Talks between the administration and labor groups have stalled over more modest efforts to address abuse of vulnerable people — for example, negotiations to create a list of penalties for state workers who act inappropriately have dragged on for the past year.

Unions are already unhappy with the Legislature because in March it approved lower pension benefits for future public workers, so lawmakers might be hesitant to take on labor again during the final weeks of the legislative session, which is scheduled to end on June 21. All Assembly and Senate seats are up in the election this year, and many lawmakers count on support from labor groups.

In an interview last week, Stephen Madarasz, a spokesman for the Civil Service Employees Association, said that the union had not been briefed on any pending proposals related to people with developmental disabilities. “We don’t hear too much from the administration,” Mr. Madarasz said. “There’s not a lot of sharing or policy issue conversation. There certainly is an ongoing, day-to-day, nuts-and-bolts labor-management relationship, and we’re working through that. But there hasn’t been some of the big-picture conversation taking place.”

Asked what had held up negotiations for so long over penalties for problematic workers, he said, “We have nothing we can report on that at this time.”

There could also be resistance to Mr. Cuomo’s proposals from district attorneys, who may not want to share jurisdiction with the new agency. But in the past, they have shown only limited appetite for prosecuting crimes against developmentally disabled people, because many of the victims are unable to testify on their own behalf.

In addition to having criminal jurisdiction, the agency would take over many administrative investigations currently performed by six state agencies: the Office for People With Developmental Disabilities, the Office of Mental Health, the Office of Alcoholism and Substance Abuse Services, the Health Department, the Education Department and the Office of Children and Family Services. The new agency would have several hundred employees and would be paid for in part with money taken from the budgets of the six existing agencies.

The governor’s proposal to improve oversight of nonprofit groups caring for vulnerable people is less fraught, because the nonprofit sector has less clout in Albany, and most of its employees are not unionized.

Among the changes th0.0.at would affect the nonprofit sector are proposed expansions to the Freedom of Information Law. Under the proposal, the public could submit requests for abuse and neglect records to nonprofit groups that provide residential or even daytime activity programs. The new state agency would provide the legal staff to help the nonprofit organizations respond to such requests and redact documents as needed.

Some other states have disclosure laws that apply to groups receiving substantial public financing, but Mr. Cuomo’s proposal would be one of the most sweeping applications of such laws outside government.

One major part of the governor’s plan does not need legislative approval. Mr. Cuomo, following the lead of most other states, intends to establish an independent nonprofit organization that would serve as an outside advocate for those with disabilities and mental illnesses and that could bring litigation against the state. The federal Department of Health and Human Services, which this year sharply criticized New York’s care of developmentally disabled and mentally ill people, has pushed the state to move in such a direction, and the state has been studying such a transition for several months.

But most of the responsibility for investigating and responding to accusations of abuse would go to the new agency under Mr. Cuomo’s proposal. The agency would oversee a statewide hot line and assess all internal reports of abuse and neglect, directly investigating and potentially prosecuting the most serious cases or coordinating with local district attorneys to do so. Penalties for noncriminal offenses would be subject to the guidelines being negotiated with labor unions.

To help ensure that criminals do not work with vulnerable people, the agency would administer criminal background checks of those applying for employment at state agencies or nonprofit providers, consolidating what has been a porous and error-filled process. It would also maintain a register of abusive employees at all state and private facilities to prevent workers fired by one provider from being hired by another.

 

NEW YORK TIMES

California state hospitals plagued by peril

A costly federal effort to reduce heavy drugging and improper restraining fails to improve care and help patients control violent impulses. Instead, assaults by patients mount and confinements grow longer.

When Garth Webb was sent to Napa State Hospital, his parents were relieved.

The bellboy and amateur composer from Sebastopol had been in the throes of bipolar disorder when he was charged with threatening the lives of co-workers. His family encouraged him to plead not guilty by reason of insanity, thinking that in a mental hospital he would get the treatment he needed.

Instead, Webb and his parents say, he was repeatedly brutalized. His main tormentor, a patient in the room next door, assaulted him several times, wrapping him in a headlock and sexually abusing him.

Soon after, the same man strangled a psychiatric worker on the hospital grounds.

"Since I've been here, that's what I've witnessed ... these random acts of violence," Webb, now 31, said in an interview from the hospital. "It was a rude awakening."

Webb's ordeal offers a window on the failings of a six-year effort to improve conditions in California's public mental hospitals at a cost of hundreds of millions of dollars.

In 2006, the U.S. Department of Justice sued the state, alleging that it was violating patients' rights by heavily drugging and improperly restraining them and failing to provide appropriate treatment. The state settled, agreeing to an extensive court-supervised improvement plan at four hospitals with more than 4,000 patients.

But a Times investigation found that the plan has failed to achieve the Justice Department's main objective: to raise the level of care so patients could control their violent tendencies and would not be institutionalized any longer than necessary.

Under the plan, the use of restraints and certain medications declined. But by the end of last year, the rate of patient assaults on other patients and staff members had doubled at Metropolitan State Hospital in Norwalk and Atascadero State Hospital in San Luis Obispo County, according to an analysis of state data.

The assault rate at Napa more than tripled over two years, dropping only after the killing of the psychiatric worker triggered a lockdown.

Only at Patton State Hospital in San Bernardino did assaults decrease — by 15%.

Patients, most of whom have committed crimes linked to their illnesses, are also being confined longer, records show. Those judged not guilty by reason of insanity, for instance, were held nine months longer on average in 2011 than in 2006.

Despite the rising violence and longer periods of confinement, the Justice Department expressed overall satisfaction with the pace of improvements in the hospitals, and in November it allowed its oversight of Patton and Atascadero to expire.

But in December, the department unexpectedly asked a federal court to extend oversight of both Metropolitan and Napa, asserting in court papers that their patients remained "at serious risk of harm, even death."

 

The reforms plan's core approach to treatment was group classes, like this one at Metropolitan, on such topics as anger management. The classes largely replaced individual therapy, which clinicians say patients need in order to understand their illnesses and show progress

In support of that request, a federal court monitor charged with evaluating the state's progress cited 12 cases at the two hospitals in which patients died or were seriously injured because of lapses in care. A ruling is expected in June.

Meanwhile, the state Department of Mental Health — under new leadership — has begun dismantling many of the changes instituted at the hospitals.

"It was a huge, very expensive, very idiotic experiment that failed badly," Dr. Mubashir Farooqi, a psychiatrist at Patton, said of the reform effort.

Under pressure from higher-ups to place the fewest possible restrictions on patients, hospital staff members grew reluctant to take assertive action against violent or unruly ones, according to state records and interviews with hospital officials, employees, patients and their families.

Paperwork intended to document progress toward about 360 separate objectives left staff members with far less time for patients and less flexibility to craft suitable treatments.

"They have succeeded in putting in all these measures and employing people to count their forms," said Mel Hunter, former executive director of Atascadero, who left the hospital in 2007 because of his objections to the changes. "But in terms of reduction in cost, reduction in time served in treatment and reduction in violence, it's a failure."

The architect of the reforms was Nirbhay Singh, a Virginia-based consultant.

Singh came to the United States in 1987 from New Zealand, where he had served as psychology director at an institution for the mentally retarded. He became a professor of psychiatry at Virginia Commonwealth University and developed specialties in "person-centered" care — designed to build on a patient's strengths — and "positive behavior support."

Singh had scant experience treating psychiatric patients, let alone the sort of dangerous offenders who fill the state hospitals. He specialized in research on the developmentally disabled, particularly children, and published articles about Buddhist-inspired mindfulness and alternative treatments, such as using the herb kava as a calming agent.

Yet Singh had at least one qualification that appealed to California officials: He was well-acquainted with the Justice Department lawyers who were scrutinizing the state hospitals. They had hired him 21 times over the years, mostly to advise them on problems with care at centers for the developmentally disabled.

After federal officials launched an investigation of Metropolitan, California retained Singh in 2002 to craft reforms there. Soon, he was shaping treatment at Napa, Atascadero and Patton as well. But the Justice Department sued anyway and after the state entered into a consent judgment, it kept Singh on to steer the reform effort.

He resigned abruptly in January 2011 after Times reporters inquired about his performance.

In written responses to questions, Singh characterized his tenure as a success, saying his expertise helped the hospitals shift from simply treating symptoms to providing "individualized, personalized care that affords wellness, dignity and independence to the individuals served."

"I believe I fulfilled the terms of my contract and helped improve the California mental health system," wrote Singh, who records show earned about $4.4 million — at a rate of $2,500 per day — while working for the state.

Cindy Radavsky, former deputy director of long-term care for the Department of Mental Health and Singh's most adamant defender, credited him with instituting rigorous treatment planning and reducing the use of restraints, isolation rooms and high-risk medications.

Radavsky, who retired in December as the call to undo key changes intensified, blamed the rise in violence at the hospitals on an influx of patients with sociopathic tendencies.

Assistant Atty. Gen. Thomas E. Perez, head of the Justice Department's Civil Rights Division, said that the hospitals' policies and procedures had improved under court supervision but that insufficient attention was paid to "outcomes" — whether patient health was also improving.

"Are we where we need to be and want to be? Absolutely not," he said in an interview last fall. He declined subsequent requests for interviews.

patient kills staffer

A moment of silence is observed as workers at Napa State Hospital remember Donna Gross, a psych tech pictured on sign, who was killed by a patient. Nearly 200 assembled at the entrance to for safer conditions at the hospital.

 

On a drizzly Saturday evening in October 2010, a small woman walked across the Napa State Hospital grounds. Donna Gross, a 54-year-old psychiatric technician, was returning from her dinner break.

A burly patient emerged from the dusk and dragged her into an alcove. Jess Willard Massey, then 37, robbed Gross of $2, a pack of nicotine gum and jewelry. Then he strangled her so she would not tell on him, according to prosecutors.

Massey was a diagnosed sociopath who'd been committed to the hospital after he stabbed and seriously injured a stranger.

Throughout the state hospital system, employees protested that the federal reforms were making the facilities more dangerous to staff and patients.

"We're not only not providing people help, we're making people sicker," Napa State Hospital psychologist Sue Hohlweg said at the time.

In particular, employees took aim at the reform effort's core approach to treatment: an assortment of group classes on such topics as anger management and substance abuse recovery. Mental health experts say the widely used "mall" approach is effective in teaching patients skills they will need to cope in the outside world.

But in California the classes were often dull, repetitious or useless, employees and patients said. They largely supplanted individual therapy, which clinicians said was essential for patients to understand their illnesses and demonstrate fitness for release.

Massey, some said, was a case in point. His one-on-one therapy had been discontinued and he had been given a grounds pass to attend the mall classes instead.

Many patients were frustrated with the classes.

High-functioning patients were thrown in with those ranting about "God and aliens," making it impossible to "stay focused," said former Napa patient Duwayne Bartsch, 43, who spent 15 years at Napa after being found not guilty of second-degree murder by reason of insanity.

Anthony Geraci, a patient at Patton, said he was sent to a volleyball class despite having a known shoulder injury. Geraci, who was hospitalized after threatening a neighbor, didn't see how the mall classes would help him overcome his problems and gain his release.

"Nobody's getting out," he said. "All day long it's all about sorrow, sadness and hopelessness."

Seen as dismissive

Philip Zullo, shown with his father, Fred, spent eight years in state hospitals. He says the paperwork kept psychiatric technicians from doing their real jobs.

 

Many therapists and other professionals in the state hospitals were put off by Singh's approach and what some considered a dismissive manner.

"He placed implementing his cookie-cutter system ahead of attending to the true safety needs of an institution treating very dangerous ... individuals," said former Napa psychologist Ken Lakritz, who ran a behavioral program that Singh dismantled.

Staff members and some patients said Singh's focus on documentation — aimed at proving compliance with the consent judgment — came at the expense of patients' well-being.

Monthly treatment plans grew to exceed 30 pages per patient, much of it redundant and clinically useless, current and former staffers said. Highly paid psychotherapists and other staffers were diverted from treating patients to audit and polish patient records for review by a federal court monitor.

With about 300 new forms to fill out systemwide, staff members said they no longer had time to play cards and chat with patients, activities that helped build connections and head off violence.

Patients said they missed the attention.

"Psych techs don't have time to be psych techs," said Philip Zullo, 34, who spent eight years in state hospitals after threatening an ex-girlfriend. Speaking of the system's frontline staffers, he added: "They're irritated by the time they have finished with the paperwork."

The goal seemed to be technical compliance above all else, staffers said. At Patton, the hospital administrator told hospital police investigators in late 2009 to focus on patient abuse complaints for the six months that were subject to review by the court monitor's team and shelve the older ones, according to a letter to the monitor from a former lead investigator.

It's "pure smoke and mirrors," wrote former investigator John Olive.

Even participation in the treatment mall was not what it seemed, staffers said. When charts showed that almost all patients were falling short of the required 20 hours a week of classes, the state lowered the bar — twice — so patients were considered noncompliant only if they didn't make it to a single class in a month.

Participation soared — at least on paper.

A family bereft

Diane Rodrigues is shown in photographs with her sisters. Rodrigues died while living at Metropolitan State Hospital in 2009, where she broke her neck after flipping off her bed.

 

Diane Rodrigues arrived at Metropolitan State Hospital in September 2009. The former kindergarten teacher had grown up in a close-knit San Jose family with six siblings. She was diagnosed with schizophrenia in 1985 at 28, but had emerged from many crises to water-ski and paint once more, said her twin sister, Debbie Coughlin.

Still, her illness worsened.

In November 2009, she repeatedly somersaulted off her bed at Metropolitan in response to voices, according to an incident report. A staff member was assigned to watch her at all times.

Two days later, she began to flip off the bed again and was given Benadryl, an over-the-counter antihistamine and sedative. Soon she flipped again. Approached by a staffer, she asked to stay on the floor and rest. It was hours before anyone realized her neck was broken and she was paralyzed. She died in May 2010 of related causes.

"We trusted she was going to a facility that could manage someone with this severe of an illness," Coughlin said. "Could she not have been medicated?"

Documents reviewed by The Times show that staff members did not add anything to Rodrigues' usual medication other than Benadryl. She was not placed in physical restraints.

In general, mental health administrators at the hospitals pressed staff members to limit use of emergency calming medication, multi-drug cocktails and other similar measures, interviews and documents show.

Although clinicians generally supported non-coercive measures, they said higher-ups without medical training second-guessed the use of restraints, seclusion and medication even when they were necessary.

"The paperwork and number of hoops you have to jump through and the backlash after the fact makes it virtually impossible" to use these measures, said Dae Peter Lee, a Metropolitan psychologist. "You'll get called into meetings, 'Why didn't you do this? Why didn't you do that?'"

Metropolitan's former executive director, Sharon Smith Nevins, whose background is in social work, told clinicians to release patients from restraints and remove them from one-to-one observation in most cases, said several current and former staffers.

Smith Nevins denied trying to influence treatment. "I encourage clinicians to exercise clinical judgment since the application of restraints as well as ordering of one-to-one observation is based on a clinical decision," she said in a statement. She abruptly left her state job in December.

In a May 2010 letter to Metropolitan staff, Radavsky, then the state's deputy director of long-term care, noted approvingly that "by the end of 2009, seclusion events were nearly eliminated there and restraint events were down by 94%."

But in an interview, Radavsky said staff members "were never told to sacrifice safety or security."

Asked about Rodrigues' death, she said that the department investigated but that the findings were confidential.

A January 2011 internal report acknowledged that Metropolitan staffers had frequently been reluctant to use restrictive practices, even when necessary. The report suggested that clinicians had misinterpreted the directives of superiors.

"Because of a perception by some that the use of restraints or seclusion was essentially prohibited, there were often episodes where staff hesitated and delayed," according to the report, written by Ashvind Adkins Singh, a psychologist at Metropolitan and son of Nirbhay Singh.

Graphic: Average stay in days

Average number of days spent in hospital by mental patients. More: changes in the rate of aggressive acts by patients. 

Over the last two years, the federal court monitor, Dr. Mohamed El-Sabaawi, has increasingly raised concerns about conditions in the hospitals.

In court papers filed in December, El-Sabaawi, a psychiatrist chosen by state and federal officials to track the reforms, pointed with urgency to deteriorating patient safety at Napa and Metropolitan. He cited "unacceptably high rates of incidents of serious injury … from self-harm and aggression towards others."

Among his 12 examples was a 26-year-old patient at Napa who tried to kill himself by jumping from the top of a locker. Although a nurse's note said the young man reported hearing voices telling him to jump, he was not examined by a psychiatrist, nor was his medication adjusted, El-Sabaawi said.

The patient later dived off a balcony and died.

In the meantime, many of the changes that Singh instituted are being undone.

After defending the treatment mall for years, the state is abandoning it, providing treatment in the units where patients live so they aren't wandering the campus.

The mall "created security issues," said Kathy Gaither, the Department of Mental Health's interim deputy.

Most treatment plans are being slimmed down from 30-plus pages to one. Clinicians assigned exclusively to paperwork are returning to patient care.

Minimum staffing requirements under the consent judgment are falling by the wayside. And amid a state financial crisis, hospitals are cutting hundreds of clinical positions.

The Justice Department's Perez declined to comment on the state's retreat from many of the court-supervised reforms. A department spokeswoman said that the hospitals must respect patients' constitutional rights and that it is up to state officials to determine how.

Gaither, who stopped short of criticizing her predecessors or the Justice Department, said her goal is to give clinicians greater freedom to shape treatment according to patients' needs.

Current and former staff members say that was supposedly the goal of the reforms.

"For years we asked, 'Is it working?' and they said. 'We're still implementing,'" said Farooqi, the psychiatrist at Patton. "When it was finally time to see the effects, they changed everything. They have basically thrown everything out."

 

LA TIMES

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Obama did you forget to Keep your Promise to Home Care Aides?

Evelyn Coke, who died in 2009 at age 74, was a home care aide whose case for fair pay went to the Supreme Court in 2007, where she lost 9 to 0. At issue were federal rules that define home care aides as “companions,” a label that exempts employers from having to pay minimum wage and time-and-a-half for overtime. The justices said that only Congress or the Labor Department could change the rules.

Pauline Beck is a home care aide in California. In 2007, then-Senator Barack Obama was paired with Ms. Beck for an event called “Walk a Day in My Shoes,” in which he worked for a day at her job caring for an 86-year-old amputee.

Last Dec. 15, with Ms. Beck at his side, President Obama invoked Ms. Coke’s memory and announced, “Today, we’re guaranteeing home care workers minimum-wage and overtime pay protections.” He was referring to sensible new rules, proposed by the Labor Department, to revise the companionship exemption.

The problem is that the new rules have yet to be finalized, and could still be derailed or watered down.

The Labor Department has until the end of May to digest thousands of comments on its proposal. Most of the comments were supportive, including those from home care agencies that already adhere to fair pay laws, professional

health associations, labor activists and advocates for the elderly. Opposition came mainly from for-profit home care franchisees — a growing segment in a traditionally nonprofit industry — who said that fair pay would devastate affordable home care. That is the same argument that prevailed in 2002, when reforms proposed at the end of the Clinton administration were spiked.

This time around, proponents for change have been better organized and armed with research to rebut such claims. But now as then, for-profit agencies have taken their complaints to the Small Business Administration, setting up a conflict with the Labor Department.

Even if the new rules survive the Labor Department review intact, they must then be approved by the White House Office of Management and Budget, a process that could bog down in the face of interagency disagreements. It will take Mr. Obama’s engaged leadership to ensure that the long-overdue new rules, which offer basic fairness for home care aides, are carried out.

 

NYT

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Advertise on NYTimes.com Under Pressure, New York Moves to Soften Tough Medicaid Audits

James C. Cox, New York’s new Medicaid inspector general, has said he intends to pursue a less “adversarial” auditing strategy.

 

The turnaround was startling. Within four years the state had recouped $1.5 billion in Medicaid overpayments, the highest recovery rate in the nation. Other states rushed to create inspectors general like New York’s.

But a backlash from the politically powerful health care industry has erased broad support for the crackdown. Last year, amid a crescendo of provider complaints of overzealous, nitpicking audits and unfair tactics, Gov. Andrew M. Cuomo quietly dismissed the state’s first Medicaid inspector general, James G. Sheehan, and directed Mr. Sheehan’s successor, James C. Cox, to collaborate with providers on changes to the agency’s policies and auditing methods.

In an interview, James Introne, Mr. Cuomo’s deputy secretary for health, expressed the state’s new view.

“An audit need not be an adversarial enterprise,” Mr. Introne said. “To the extent that an audit turns into an adversarial affair, it may not be conducted properly. An audit is successful when people agree.”

The Cuomo administration said that enforcement was as vigorous as ever, and that Mr. Cox was on target to avoid $1.1 billion in improper Medicaid spending this year, even more than his predecessor. But veterans of Medicaid policing pointed to important audits that were started by Mr. Sheehan but have not been released, and said the inspector general’s office was at a difficult crossroads, caught between the Legislature’s allegiances to campaign contributors from the health care field and the governor’s plans to cut Medicaid costs, which depend on the goodwill of nursing homes, hospitals and home health agencies.

James G. Sheehan, who was dismissed as inspector general last year, helped recoup $1.5 billion in Medicaid overpayments.

“An industry that’s regulated doesn’t love the regulator unless the regulator isn’t doing much,” said Arthur A. Levin, the longtime director of the Center for Medical Consumers, a nonprofit advocacy organization, who admired Mr. Sheehan. “Asking the regulator and the regulated party to sit down and come to some sort of consensus on how the regulation should be — to me, it makes no sense.”

Michael A. Zegarelli, a past president of the national association of Medicaid oversight officials and a senior regulator in New York until 2003, said that by definition, an audit that found overbilling, fraud or waste was “going to be adversarial.”

“Sheehan’s successor will have a short leash,” Mr. Zegarelli said. “Will that be for the benefit of the program, or to keep Cuomo’s constituency happy?”

New York’s Medicaid program, jointly financed by federal, state and local taxpayers, is the nation’s largest, at $53 billion. In 2005, an investigation by The New York Times found that Health Department regulators had uncovered only 37 cases of suspected fraud in 400 million annual claims, overlooking red flags like a storefront dentist whose billings spiked to 991 procedures daily and a nursing-home operator who took in $1.5 million in salary and profit the same year he was fined for neglecting the home’s residents.

The 2006 overhaul spurred by that investigation was financed by a $1.5 billion payment from the federal government with tough terms: the state had to recoup the money by September 2011 or pay back the shortfall. To take charge, Gov. Eliot Spitzer in 2007 appointed Mr. Sheehan, who had prosecuted health care fraud for 20 years as an assistant United States attorney in Philadelphia.

Mr. Sheehan exceeded recovery targets. Over all, the state reclaimed 1.2 percent of its total Medicaid spending, the nation’s highest rate.

But complaints from providers mounted, and were taken up by legislators. The providers charged that under pressure to meet the federal target, Mr. Sheehan treated paperwork errors like fraud. At one legislative hearing, he was accused of “gangster tactics” for demanding that providers settle with the state or risk having to pay more based on findings extrapolated from statistical samples.

“Jim Sheehan was able to make up his own rules,” said Richard J. Herrick, president of the New York State Health Facilities Association, a nursing-home trade group. “It wasn’t for purity, it was where can we find money to recoup.”

In June, Mr. Sheehan was dismissed with a month’s notice in a phone call from Mr. Cuomo’s director of operations.

“He said, ‘We’ve decided to go in a different direction,’ ” recalled Mr. Sheehan, who has since been hired as the chief integrity officer and executive deputy commissioner for the Human Resources Administration, which oversees Medicaid in New York City.

A spokesman for the Cuomo administration would not specify the reasons for the decision, and Mr. Sheehan said that as a political appointee, he had no problem with it. But he disputed providers’ accusations, saying that the real issue was his challenge to a powerful industry that is a large employment engine.

“Medicaid is to New York what corn is to Iowa,” he said. “It’s a heavy lift.”

He said that audits of nursing homes, for example, found that some had inflated their profits by needlessly sending every patient to physical therapy during the month when annual reimbursement rates were calculated.

The nursing-home trade group sought an injunction to stop the audits. A court dismissed the association’s argument that Mr. Sheehan had exceeded his jurisdiction.

Mr. Herrick said that the decision was on appeal, and that his association was revising audit protocols with Mr. Cox, the new inspector general. “I have no personal knowledge that facilities followed the practice alleged,” he said, “and as a practical matter find it highly unlikely.”

In home health care agencies, Mr. Sheehan said auditors found widespread patterns that violated Medicaid requirements linked to quality of care.

“Nurses are supposed to review the work and design the plan of the home health aides, but there were cookie-cutter plans,” he said, citing one plan that failed to mention that the patient was an amputee or to explain how the aide was to care for the stump.

“Home health aides would not show up, or would be in two places at once,” he added. “One entity billed us 500 times for home health care while patients were in the hospital.”

Mr. Sheehan would not name audited agencies, but two of his former managers said the largest audit was of Visiting Nurse Service of New York, a $1 billion nonprofit group. That audit gained attention a year ago, when an internal report citing tens of millions of dollars in overpayments was leaked to The Wall Street Journal. At the time, the agency’s chief executive was on a task force advising the new governor on how to redesign Medicaid to trim costs.

Richard Rothstein, a spokesman for Visiting Nurse Service, said that under an agreement with the inspector general’s office, he could not talk about the audit, which started in 2008 and has not been released. But he added, “There is absolutely no discussion about fraud,” only “errors in paperwork.”

One example cited in the preliminary report was a bill for an eight-hour-long sponge bath. Mr. Rothstein said that there had been no intent to cheat Medicaid and that the aide who started the sponge bath had forgotten to report that a nursing crisis had intervened before she finished it hours later.

Many providers welcomed Mr. Sheehan’s exit, but Richard J. Mollot, executive director of the Long Term Care Community Coalition, which advocates for nursing-home residents, did not.

“It was politics at its worst to see him leave,” Mr. Mollot said. “They put enormous pressure on that office to sustain their budget, so to then turn around and say they were too aggressive is the height of hypocrisy.”

After Mr. Sheehan’s dismissal, lawmakers unanimously passed a bill curbing the office’s authority. It cut the government’s time to reclaim overpayments to three years from six and let providers submit corrected bills rather than repay.

Mr. Cuomo, an aggressive prosecutor of Medicaid fraud as attorney general, vetoed the bill. “The provider community, as a whole, plays a critical role,” his veto message said, “and many of their concerns reflected in this bill are legitimate.” But, he added, the bill “would potentially allow fraudulent and abusive activity to go undetected or unprosecuted.”

Instead, he ordered Mr. Cox to review policies with “a working group comprised of representatives of provider associations and others.”

Mr. Cox’s confirmation last week, after a nine-month wait, underscored the change in climate. At genial committee hearings, state senators said they were receiving positive feedback from providers, but one warned that the vetoed bill would be resubmitted “if we hear otherwise.”

Mr. Introne, the deputy health secretary, said that Medicaid providers followed rules better now than they did five years ago. Mr. Sheehan agreed, and said his successor was well-qualified. But he noted that dozens of city audits he had asked to start or to release in his new job were still awaiting Mr. Cox’s approval.

Audit figures released by the state show that Mr. Cox’s findings of overpayments have fallen steeply since Sept. 30, when the state met the deadline for the $1.5 billion federal target.

Mr. Cox, a 23-year veteran of audits for the Health and Human Services inspector general, said he involved government lawyers and providers at the outset of an audit and examined every audit himself to make sure its findings could withstand a court challenge. That has held up some audits, he acknowledged, including that of Visiting Nurse Service, which is “still being reviewed and discussed with the entity and its lawyers to see what areas we agree on or disagree on.”

“We’re all about fighting fraud,” he said, and “also about improving program integrity, quality of care, and saving taxpayer dollars. That’s our mission, and we’re sticking with it.”

 

New York Times

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A Shift From Nursing Homes to Managed Care at Home

Lillian Johnson, seated, prepares for a ride home from the New York Archdiocese's ArchCare PACE Center in Harlem, an alternative to a nursing home.

Faced with soaring health care costs and shrinking Medicare and Medicaid financing, nursing home operators are closing some facilities and embracing an emerging model of care that allows many elderly patients to remain in their homes and still receive the medical and social services available in institutions.

The rapid expansion of this new type of care comes at a time when health care experts argue that for many aged patients, the nursing home model is no longer financially viable or medically justified.

In the newer model, a team of doctors, social workers, physical and occupational therapists and other specialists provides managed care for individual patients at home, at adult day-care centers and in visits to specialists. Studies suggest that it can be less expensive than traditional nursing homes while providing better medical outcomes.

The number of such programs has expanded rapidly, growing from 42 programs in 22 states in 2007 to 84 in 29 states today. In New York City, a program run by a division of CenterLight Health System, formerly known as the Beth Abraham Family of Health Services, has over 2,500 participants at 12 sites in the metropolitan area.

“It used to be that if you needed some kind of long-term care, the only way you could get that service was in a nursing home, with 24-hour nursing care,” said Jason A. Helgerson, the Medicaid director for New York State. “That meant we were institutionalizing service for people, many of whom didn’t need 24-hour nursing care. If a person can get a service like home health care or Meals on Wheels, they can stay in an apartment and thrive in that environment, and it’s a lower cost to taxpayers.”

The recent influx of adult day-care centers and other managed care plans for the frail elderly is being driven by financial constraints as President Obama and Congressional leaders seek hundreds of billions of dollars in savings in Medicare and Medicaid. Nursing homes, which tend to rely heavily on Medicare and Medicaid dollars, are facing enormous financial pressure — Mr. Obama’s proposed budget includes a $56 billion Medicare cut over 10 years achieved by restricting payments to nursing homes and other long-term care providers.

Nationally, the number of nursing homes has declined by nearly 350 in the past six years, according to the American Health Care Association. In New York, the number of nursing homes declined to 634 this January from 649 in October 2007, and the number of beds to 116,514 from 119,691.

Over the next three years, New York State plans to shift 70,000 to 80,000 people who need more than 120 days of Medicaid-reimbursed long-term care services and are not in nursing homes into managed care models, Mr. Helgerson said.

The move away from nursing homes was highlighted on Thursday when Cardinal Timothy M. Dolan announced that the Archdiocese of New York, one of the state’s largest providers of nursing home care, is selling two of its seven nursing homes and opening or planning to open seven new adult day-care centers over the next three years.

“Seniors and others who have chronic health needs should not have to give up their homes and independence just to get the medical care and other attention they need to live safely and comfortably,” Cardinal Dolan said in a statement before he opened a 250-patient program at Saint Vincent de Paul Catholic Healthcare Center in the South Bronx.

These new adult day-care centers, known around the nation by the acronym PACE — Program of All-Inclusive Care for the Elderly — provide almost all the services a nursing home might, including periodic examinations by doctors and nurses, daytime social activities like sing-alongs and lectures, physical and occupational therapy and two or three daily meals. All the participants are considered eligible for nursing homes because they cannot perform two or more essential activities on their own like bathing, dressing and going to the toilet. But they get to sleep in their own beds at night, often with a home health care aide or relative nearby.

The nonprofit groups that operate them receive a fixed monthly fee for each participant and manage their entire care, including visits to specialists, hospitalizations, home care and even placement in a nursing home. Because Medicare and Medicaid pay set fees instead of paying for specific procedures, center operators are motivated to provide preventive care to avoid costly hospitalizations or nursing home care.

Some elderly people, however, spurn PACE programs because under managed care, they would have to switch their physicians to those at the PACE center or in its network.

Most elderly people want to live out their lives at home, a desire evident in interviews in the PACE center the archdiocese opened in 2009 in Harlem, which has a staff of three doctors and is visited regularly by a dentist, a podiatrist and a psychiatrist.

Edna Blandon, 74, a diabetic weakened on her left side by a stroke who relies on a wheelchair, is transported by specialized van to the Harlem PACE center three days a week and appreciates that it provides not only a home care attendant but sends a nurse every two weeks to change pills in her pillbox and load a 14-day supply of insulin into syringes that she will inject.

“My spirits would drop if I went to a nursing home,” she said. “I love the fact that I can go home at night. There’s no place like home. I can sit down, look at the TV and go to bed when I want.”

James Harper, 70, a retired bank employee who spent 10 months at the archdiocese’s Kateri Residence, a nursing home on the Upper West Side, after a stroke paralyzed his right side, enjoys yoga breathing classes and discussions about black history. Yet he gets to spend nights and weekends with his wife, Albertene, and daughter, Traci, both of whom work during the day and are not around to care for him.

“This way I’m around people,” he said.

Dr. Fredrick T. Sherman, the Harlem PACE medical director, said that a 2009 study showed that PACE programs reduce lengths of stays in hospitals and delay assignments to nursing homes.

The archdiocese, whose new centers will serve a total of 1,500 people, receives an average of $4,000 a month from Medicaid for each participant and $3,300 from Medicare. By comparison, said Scott LaRue, the chief executive of ArchCare, the archdiocesan health care network, a month of nursing home care can cost the government $9,000.

Ultimately, the archdiocese hopes that half of its elderly clients will be served in community settings rather than in nursing homes, which currently serve about 90 percent of the archdiocese’s clients. For-profit companies have not yet moved into the managed care market, in part because of uncertainties about reimbursement formulas and the risks of taking on a nursing home population.

The PACE population tends to be younger than that at nursing homes, which raises the question of whether many PACE clients would really need nursing homes without PACE. Dr. Sherman replies to such skepticism by saying that his clients “need that level of service — the question is where they’re going to get it.”

Without PACE, he said, “they’re going to end up in nursing homes.”

NY Times