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Health regulators did not inspect Maryland nursing homes for more than a month as coronavirus pandemic raged

As the coronavirus tore through Maryland nursing homes in March and April, state health regulators did not conduct any in-person nursing home inspections for more than a month because there wasn’t personal protective equipment available for the investigators to wear.

Interviews with state health officials and documents provided to The Baltimore Sun through a public records request reveal instead that, at a time when loved ones could not visit nursing home residents, regulators were kept on the sidelines, too.

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That’s not to say nursing homes haven’t received significant hands-on oversight, guidance and support from state and federal authorities as individual outbreaks have flared. State health officials provided emergency support, and from a distance, the regulators worked to ensure nursing homes had adequate emergency plans in place and guided them in self-evaluations of infection control practices.

But the lack of on-site inspection has raised concerns that regulatory action — intended to ensure residents are safe and, if they aren’t, that consequences are imposed — may have lagged at a time when families and patient advocates say accountability was much needed. With more than 1,800 resident and staff deaths to date, nursing homes have accounted for nearly two-thirds of Maryland’s coronavirus casualties.

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Some question whether enough resources are going toward policing nursing home operators during a time of such chaos and vulnerability. State reports show there have been perennial staffing shortages in Maryland’s Office of Health Care Quality, the regulatory agency responsible for investigating deficiencies in care in nursing homes and 41 other types of health facilities.

Del. Karen Lewis Young, a Frederick County Democrat who sponsored a patient bill of rights law that passed last year, said discussions about that legislation revealed the office did not have enough people for proactive enforcement. Now, she wonders what staff shortages mean for nursing home patients in the midst of COVID-19 outbreaks.

“When you look at that now, in the age of the coronavirus, it’s of even more concern,” she said.

Fran Phillips, Maryland’s deputy health secretary, said the state “has never been more engaged with a particular segment of the health care delivery system.” Nursing home administrators have welcomed the assistance, and asked for more, she said.

And Phillips said the regulatory surveys aren’t meant to occur in the midst of crises. Inspectors are trained to find systemic problems not just through interviews and observations, but thorough review of documentation that can reveal issues going weeks back, she said.

“I have no doubt the surveys would pick up those kinds of failures,” she said of potential issues with infection control.

The surveys involve interviewing staff, observing interactions with residents and reviewing documentation of care, looking for adherence to both state and federal laws. The state health care quality agency conducts them at 42 types of health facilities, including nursing homes and other long-term elder care facilities. The federal Centers for Medicare and Medicaid Services conducts the surveys, as well.

The inspectors rely on the facilities they are surveying to provide any necessary personal protective equipment, and so those supplies typically aren’t needed during investigations of nursing homes, said Dr. Tricia Nay, director of the Office of Health Care Quality. State officials did not round up the necessary equipment and fit and train inspectors to wear N95 masks until late April, allowing in-person surveys to resume, she said.

Records obtained by The Sun show nine in-person surveys of Maryland nursing homes were completed as of early May, when the newspaper requested the data.

Four of them resulted in findings of deficiencies — at the Village at Augsburg in Baltimore, Bedford Court Healthcare Center in Silver Spring, Althea Woodland Nursing Home in Silver Spring and Sagepoint Nursing and Rehabilitation Center in La Plata.

Three of those were conducted by the federal Centers for Medicare and Medicaid Services, which said it issued no civil penalties, while the state conducted the Sagepoint survey, levying a $380,000 fine.

Sagepoint administrators have said they dispute the inspectors’ findings, while leaders at the others have said they addressed any issues raised by regulators.

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In the eight and a half weeks since the state resumed its surveys, Nay said the Office of Health Care Quality has inspected 26 nursing homes. Those reports were not made immediately available. Nay directed a Sun reporter to file another public records request to obtain them.

Meanwhile, the state health department dispatched what Gov. Larry Hogan, a Republican, dubbed “strike teams” to help control outbreaks, and more recently has been employing two dozen “bridge teams” to address staffing shortages. Hogan also ordered universal testing of nursing home residents and staff, and the state collected more than 58,000 swabs, Phillips said.

Those actions saved lives, she said. And she expressed confidence that inspections now occurring across the facilities are uncovering any problems.

“Part of a survey is not just what is happening right now, but to look back,” Phillips said. “If there are system failures, you’re going to see evidence of that.”

One former director of the Office of Health Care Quality disagreed. Nancy Grimm, director of the office from 2009 to 2013, said the lack of in-person oversight raises concern given the gravity of the coronavirus pandemic in nursing homes. She said she worries surveys conducted after the fact could miss significant lapses in care.

“When you have a crisis, that’s when you want to be more vigilant and on site,” Grimm said. “If you’re not on site it’s very difficult to get a true picture of what is actually being performed.

Annual inspections of licensed nursing homes are required by law, and many of the facilities get more scrutiny than that, said Joe DeMattos, executive director of the Health Facilities Association of Maryland, a trade group representing nursing homes.

But state data suggests the office cannot keep up with that demand. Inspectors completed 172 full surveys and 22 follow-up surveys at Maryland’s 227 nursing homes in fiscal year 2019. They also investigated 2,417 of 3,902 complaints filed about nursing homes, the annual report shows.

The report said the office was short 13 nursing home surveyors that year, and 36 surveyors in all.

Nay said she did not know where the staffing deficit stands currently, but said the office added several additional staff as the pandemic hit the state. She said recruitment is already underway for 10 new positions allotted under a state law to boost the office’s staffing, and five of them would work on inspection of nursing homes and other long-term care facilities.

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But given that pandemic-related business closures and stay-at-home orders are expected to cost the state billions of dollars in tax revenue, Young, the Frederick County delegate, expressed concern “tough decisions” could be ahead.

“I certainly hope we wouldn’t be looking at making cuts in the area of health care,” she said.

State officials said the pandemic has not affected the office’s staffing, adding that it has six vacancies out of 210 positions, the lowest rate of any state health department unit.

Some lawmakers and health experts suggested it’s not clear what, if any, amount of increased regulatory oversight could have prevented the coronavirus’ toll on nursing homes. Allison Ciborowski, CEO of LeadingAge Maryland, noted the regulatory office is “not staffed to operate under a pandemic.

“They run a tight ship under normal circumstances, said Ciborowski, whose organization represents aging-related nonprofits.

Josh Sharfstein, a former state health secretary now on the faculty at the Johns Hopkins Bloomberg School of Public Health, said the speed and intensity with which the coronavirus spread through nursing homes makes it difficult to gauge whether more aggressive regulatory action might have made a difference.

That is in large part because not enough was known about the virus’ spread early on, including that outbreaks often started with staff members who showed no signs of illness.

“Some very well-run nursing homes were seriously affected,” Sharfstein said. “I don’t know that the typical inspection was really aligned with what was needed.”

Del. Joseline Peña-Melnyk, a Prince George’s County Democrat who focuses on health care issues, described the challenges that have faced nursing homes and regulators more plainly: “They were not ready because no one could be ready.”

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