Editor's Note: This article was updated at 6:45 p.m. on Sept. 20, 2012 due to new documents obtained from the Bennington Police Department.
The federal government says it will decertify and stop funding the Vermont Veterans’ Home as of Oct. 28.
The federal agency known as the Centers for Medicare and Medicaid Services (CMS) issued a notice of termination to the Bennington facility on Tuesday. It goes into effect on Sept. 28.
This notice comes one week after a licensed practical nurse (LPN) hit and fractured the nose of an 82-year-old veteran.
Federal funding makes up more than 50 percent of the facility’s roughly $19 million operating budget. The home receives $10 million to $12 million a year from CMS and millions of dollars in state match money from Vermont and New York.
At this point, the state hopes CMS will re-evaluate the facility one more time. There is no guarantee, however, that the federal agency plans to give the country's second oldest veterans' home another shot at recertification.
Richard Shaw, CMS Boston branch chief of Certification and Enforcement, issued a second decertification notice Tuesday. But state officials who gave an update to lawmakers about the state’s finances at the Joint Fiscal Committee meeting on Wednesday made no mention of the CMS notice.
At stake is the home of 137 veterans and veteran spouses as well as the jobs of 250 staff members.
State officials say the decertification means the Legislature might have to find alternative placements for the home’s residents or come up with state money to make up the difference.
Decertification of the home stems from a series of federal violations dating back to March of this year. Alleged violations range from mistreatment, abuse and neglect to failure to provide a safe, sanitary and comfortable environment. In addition, CMS charges that the home was insufficiently staffed during specific periods.
Regulators discovered more infractions during surveys on Sept. 5 and 13, according to Shaw’s letter. The survey from the 13th has not yet been released.
Two days before the Sept. 13 survey, LPN Mark Demasi hit veteran Elroy Whidden in the face, according to a police report. According to the report, Demasi told the police that Whidden had been swearing at staff members and swatted him in the groin. Demasi said that although this action didn’t cause him “real pain,” he instinctively hit Whidden in the nose.
Whidden told police he merely tapped Demasi on the waist to get his attention. At that time, Whidden said, Demasi turned and punched him, breaking his nose. Whidden said Demasi “punched him constantly” and stuck up his middle finger at him.
Bennington Police Officer Andy Hunt, who responded to the incident, wrote in his report that he believes “the Vermont Veterans’ Home staff waited nearly an hour to report this to police.”
When asked about the incident, Vermont Veterans' Home Administrator Melissa Jackson said the employee is on leave pending the outcome of an investigation.
“We are following state and federal regulations with regard to reporting that event and we’re following our internal disciplinary action, and to respect the employee I cannot divulge what that is.”
Notice of termination
Shaw’s most recent notice of termination on Sept. 18, obtained by VTDigger through a federal records request, made no promise that the facility would have any further chances to comply with federal regulations.
“Based on your facility’s continued non-compliance … your provider agreement will be terminated from the Medicare and Medicaid programs effective September 28, 2012,” he wrote.
In his letter, Shaw explains that all residents should be notified “of the facility’s termination” and that payments provided for Medicaid and Medicare beneficiaries at the home “will cease on October 28, 2012.”
As warned in an April letter and verified in an August letter from CMS, the agency has already cut off the home’s funding for any new Medicare and Medicaid beneficiaries admitted to the facility after June 28.
Shaw wrote that the home can submit a plan to correct the infractions found on Sept. 13, but “CMS cannot guarantee that any further visits to (the) facility will be authorized.”
Despite this notice, Melissa Jackson thinks the facility will get one final chance to comply with federal regulations.
“From what we’re being told, our understanding is we should obtain another visit from (regulators) by October 28,” she said Wednesday morning. But, she acknowledged, there is a chance that the agency would not call for another inspection.
In the first notice of termination on Sept. 11, CMS hints that it will call for another survey before Sept. 27, but in the Sept. 18 notice there is no such indication.
The termination notice sent by Shaw pertains to the withdrawal of the facility’s primary source of funding: Medicaid and Medicare dollars. According to Fran Keeler, assistant director of the Vermont Division of Licensing and Protection, the facility is still in good standing with the state to continue operating.
What a Vermont Veterans' Home without CMS funding would look like, however, is yet to be determined.
What does this mean for the residents, the home and the state?
Last year, Jackson became the 18th commandant, or administrator, of the home, which was built in 1860 and turned into a veterans’ home during the Civil War in 1884. She was appointed by former Gov. Jim Douglas.
When asked about the importance of Medicaid and Medicare funds at the facility, Jackson was unequivocal.
“They are very important. They are the vast majority of our budget,” she said. “That funding is our bread and butter. It’s our livelihood.”
Jackson said that approximately 80 percent of residents at the facility rely on Medicaid and Medicare.
When the possibility of the facility losing its certification to receive those funds inched closer to a reality this summer, Vermont Secretary of Administration Jeb Spaulding said he brought in Commissioner of Finance Jim Reardon and Commissioner of Human Resources Kate Duffy to help the facility assess and manage the situation.
According to Reardon’s estimates, CMS funding accounts for $10 million to $12 million of the facility’s revenues — a number he said he still needs to scrub. Additionally, the facility receives millions in Vermont and New York match money.
Spaulding said on Monday that the state is doing everything within its power to keep the veterans’ home up and running. But if the facility’s funding is cut, he said he sees two main options for the facility.
“We would have decisions to make that would range from having to ask the Legislature to come up with a supplemental appropriation to finding alternative locations for the residents,” he said.
Sitting in her office on Tuesday, Jackson said that if the facility’s certification were terminated the board and commissioners would have to weigh the facility’s options.
“We don’t have a definitive plan by any means,” she said. “There are a myriad of options. Hopefully the first option would be getting our funding back, and then if we don’t, it will be: Do we downsize and just take private pay and VA (Veterans Affairs) patients, which would result in other veterans having to go to other facilities?”
Jackson said she and the board are planning to review such options at a Sept. 26 meeting. According to her calculations, termination of Medicaid and Medicare funds could displace more than 80 veterans.
But does the state have the nursing home capacity to handle such a displacement?
According to Laura Pelosi, director of the Vermont Health Care Association, facilities across the state do have room — theoretically.
“There is capacity in the system, but each facility would need to make a determination as to whether or not it has room for folks coming from the vets' home,” she said.
Pelosi has a firm grasp on the status of Vermont nursing homes, assisted care homes and residential care homes, as her nonprofit organization represents them on regulatory and policy matters.
She said that this year has been a tough one for Vermont nursing homes. Prospect Nursing Home in North Bennington closed in winter, and McGirr Rehabilitation and Nursing Care Center in Bellows Falls was forced to shut down after CMS similarly yanked its funding earlier this year. McGirr, too, failed to comply with federal regulations.
When Keeler, whose division carries out inspections for CMS, was asked if the agency had changed or grown stricter, she said it hadn’t.
“These are longstanding regulations that have not changed significantly,” she said.
As for a state bailout of the facility, as Spaulding hesitantly hinted at, Reardon and Duffy aren’t sure where the money would come from.
“I don’t presently have $10 million to $11 million of state General Fund to be used to back a loss of federal funds at the Vermont Veterans' Home,” said Reardon.
Duffy was also concerned about this option.
“The bottom line is it’s a lot of money for the state to come up with,” she said. “We currently don’t have that money available. That’s why we’re making every effort we can to come back in compliance so our certification and federal funding is not jeopardized … and we would make sure the residents at the home are taken care of.”
In spite of the termination notice, Spaulding remained hopeful on Tuesday.
“As for termination of the facility, a final decision has not been made,” he maintained.
But while state officials, veterans, administrators and staff members hope they’ll get one last shot at compliance, Shaw’s letter pointed out that there’s no guarantee.
What triggered this call for termination?
In January 2011, Jackson took over as chief of the facility. Around that time the home also chose a new director of nursing, Christina Cullinane. Jackson was new to the facility; Cullinane had been on the nursing staff for some time.
In May 2011, the facility was slapped with a series of federal violations, which were flagged by state regulators tasked with inspecting the facility. As the state report shows, there were a range of infractions, such as insufficient staffing levels “to attain or maintain the highest practicable physical, mental and psychosocial well being of each resident” and unsanitary food conditions due to dirty surfaces and the presence of “pork noodles” that were almost a week old.
But the facility appeared to correct those deficiencies and wasn’t in danger of losing its Medicaid and Medicare funding in 2011, said both Jackson and Keeler.
The troubles with CMS began in March of this year, when the state conducted its annual survey and investigated a complaint — the nature of which was not disclosed by the state or the federal government.
During the March survey, state regulators flagged the facility for insufficient staffing levels during meals, a lack of “dietary support” and a level of staffing insufficient for meeting high federal standards of care. Regulators also found that in some instances staff members were not following or properly updating care plans.
On April 30, CMS issued a notice to the facility that if the aforementioned deficiencies and others were not corrected, the Vermont Veterans’ Home would lose Medicaid and Medicare dollars.
During a survey in late May state inspectors found other violations, including a veteran’s care assistant (VCA) who previously performed tasks she was not licensed to perform — namely administering medications and assisting an incontinent resident use the bathroom in a public setting. The survey says that despite the fact that the administrator knew the resident was incontinent, “the resident was knowingly sent with a staff member who … could not assist with toileting or incontinence care.”
According to the survey, the resident said the experience made him feel “undignified.”
When asked about the incident, Jackson said: “I honestly think that VCA knew that this veteran had a need and wanted to meet it and just didn’t process this whole thing through.”
Winnie Rose, a registered nurse who has worked at the facility for 14 years, said on Tuesday that the home’s management should have never sent a VCA with a patient who had health complications the VCA wasn’t licensed to care for.
Other violations that surfaced during the May survey included incomplete and faulty medication records and sending an incontinent resident without a caretaker to a doctor’s appointment in mid-May. According to the survey, the physician’s office asked why a nursing assistant or other aide was not present.
According to the regulator’s report, the resident was left to sit in urine-soaked underwear for more than three hours and said, “The urine burns my skin,” describing the situation as “demeaning.”
A July 17 survey then found a long list of incidents where medication administration and use that should have been documented was not.
Two letters warning of imminent termination to the home’s provider agreement were sent out in August and then two further surveys were conducted earlier this month.
On Sept. 5, an inspector found, among other violations, that derogatory comments were allegedly written next two residents' names and went unreported for a month.
When asked about the incident, Jackson said, “Two staff members found a piece of paper that had an alleged derogatory comment next to a resident’s name. State statute is very clear that you have 24 hours to report abuse — rightly so — they held onto this paper for over a month and then they told us. But the minute we knew, we reported it.”
According to the survey report, the “piece of paper” was the resident report form, which “contains information regarding the care and services that a resident might require during a nursing shift.”
CMS mandates that violations surrounding “mistreatment, neglect or abuse” are to be reported to the administrator immediately, as the Sept. 5 report states.
Jackson said that the situation is being investigated. The employee is on paid administrative leave.
Following this incident and the Sept. 5 inspection, the facility received Shaw’s notice of termination, which mentioned the Sept. 13 survey. He wrote, “Your State Survey Agency determined that Immediate Jeopardy and Substandard Quality of Care existed.”
On Monday, Keeler said that while some violations jump out more than others, all of them are disconcerting.
“The care since the survey cycle started in March has been troublesome,” she said. “Each and every one of those instances is troublesome and each and every one of those instances indicates a violation of federal regs. Everyone of them is on the books for a reason, and CMS looks at them collectively.”
Why did these incidents happen?
In August, then-president of the board Colonel Laura Corrow, who stepped down earlier this month, issued a letter on behalf of the board of trustees to all staff members at the veterans’ home.
In that letter, she wrote, “The very future of the facility is in jeopardy because some staff are failing to follow policies and procedures established to correct identified deficiencies.” She ended the letter by commending Jackson’s leadership and her management team’s abilities.
But numerous care assistants and nurses at the facility, who have reached out to VTDigger this past week, argue that the problems facing the home are chiefly due to management. They say they feel unduly ostracized and targeted by administrators and state officials.
“This current administration is continuously blaming the staff, meaning those that work the floor, for this current situation,” reads a Vermont State Employees Association statement written by Winnie Rose.
John Dunham, a registered nurse who has worked at the home for six years, told a similar story.
“The administration at the veterans’ home seems to be looking to place blame on the staff when a lot of this really falls on their shoulders,” he said.
Jackson admitted that the new administration needed some time to adjust, and she said many of the issues — particularly those related to insufficient staffing levels — can be traced back to scheduling conflicts, which she is hoping to correct by hiring a full-time scheduler.
“We are not short-staffed; it’s how we utilize our staff,” said Jackson. “There are days on our schedule where I am overstaffed and then the next day I could be understaffed. So what we’re doing is asking employees to switch from the overstaffed days to the days when we’re understaffed.”
While Jackson, and Commissioners Duffy and Reardon all say that staffing levels at the facility are sufficient, several nurses scoffed at this notion, pointing back to 2011 for a long line of instances dealing with short staffing.
Barbara King, a licensed nurse assistant at the facility, said the nurses are overworked.
“The people who work physically with the vets are the people who are constantly asked to do overtime,” she said via email. “I can't get through a whole shift without being asked to stay over or come in early.”
Despite administrative qualms voiced by more than a handful of staff members, Jackson had nothing but positive things to say to VTDigger about employees at the veterans’ home.
“The staff here is dedicated,” she said. “They work incredibly hard every day, and they always put the needs of the veterans first. That kind of gets lost in these other issues.”
‘Their care and concern brought me back’
In the midst of the home’s last-minute scramble to tie up a range of loose ends, at least one person remains very optimistic. That’s Ransom Gore.
As the 63-year-old Vietnam War veteran zipped along the hallways of the home in a wheelchair with an oxygen tank at his side, he showed off the facility’s new pub and gleaming fish tanks.
“It’s fantastic here,” he said. “The people take fantastic care of you. … I even have a private room with my own television.”
Gore has called the facility his home for roughly four years. He is very pleased with the level of care, and he said he is a beneficiary of both the Medicaid and Medicare programs.
“I know exactly what’s going on, and they’re working to get back in compliance,” he said about the facility’s situation.
When asked what it would mean to him if the facility didn’t get one last shot at compliance, or simply didn’t comply, his tone immediately shifted.
“I’d be devastated,” he said. “I don’t know what I’d do.”
Speeding down the hall, Gore headed for another resident’s room and turned in. There sat a tall man sprawled out on a wheelchair with an ear-to-ear grin.
“I’m James Taylor,” he said with a firm handshake. “Just like the singer.”
The 70-year-old veteran of the Vietnam War had his left leg amputated last year due to diabetes. After spending two months in the Albany Stratton VA Medical Center in Albany, N.Y., he said he wound up at the Vermont Veterans’ Home.
“I think the place is a well-run establishment,” he said. “The nurses and doctors and the LNAs do an excellent job. They make sure you’re clean and neat every day. … They make you feel like family.”
Over the past year, he said he’s found a home at the facility. He wants to walk again with the help of a prosthetic limb, and he said he wants to accomplish this feat at the Vermont Veterans' Home. If CMS terminates the facility’s funding, he said, he’s determined to do everything in his power to remain at the home that helped him recover.
“Their care and concern brought me back,” he said.
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