'Minimal harm' cases at Lackawanna County nursing homes come under fire

Feb. 13—A bedsore so infected it killed a man.

Maggots found festering in a wound.

A woman sexually assaulted in her room.

State Health Department inspectors determined these incidents at the Gardens at Scranton and Dunmore Health Care Center caused only minimal harm to residents. The two facilities, and others cited for dozens of violations deemed only to cause minimal or no harm, likely will not face federal fines for the citations, advocates for nursing home residents say.

That's because the Centers for Medicare and Medicaid Services (CMS) rarely sanctions facilities unless the violations caused "actual harm" as defined by state regulators, said Richard Mollot, executive director of the Long Term Care Community Coalition, a New York City-based nonprofit that advocates for nursing home residents' rights.

"Nursing homes are very infrequently fined for substandard care, even when it is harmful to a resident," he said. "Absent a finding of harm, there is virtually no chance that a facility will face any penalty."

It is unclear how the state defines "actual harm." The operations manual state inspectors use to evaluate nursing homes gives examples but does not set specific parameters.

A troubling pattern

The cases reflect a troubling pattern where state agencies nationwide downplay egregious violations, raising concerns that they are failing to keep safe some of the nation's most vulnerable residents, Mollot said.

Research shows 95% of citations nationwide are graded as minimal harm, he said. The Long Term Care Community Coalition monitors cases nationwide and highlights the most egregious incidents in its "Elder Justice" newsletter.

"When you look at some of these citations, I think any reasonable person would find harm in the large majority of these cases," Mollot said.

Repeated attempts to reach officials at the Gardens at Scranton and Saber Health Care, which owns Dunmore Health Care Center, were unsuccessful.

The two facilities are among 18 Lackawanna County nursing homes state inspectors cited for a total of 845 health and safety violations from 2019 to 2022, of which just 40 were graded as actual harm.

Based on descriptions of inspectors' findings, many of the citations raise questions about whether the violations deserved a more serious grading, such as those issued over the care of Myron Munchak.

'Resident 11'

The 95-year-old Scranton man died at the Gardens of Scranton on Jan. 27, 2021. A Feb. 26, 2021, inspection report, which identifies Munchak as "resident 11," cites the facility for failing to document that it assessed changes in Munchak's condition in the eight days before his death, which the home's medical director attributed to respiratory failure.

The report does not mention Munchak had a bone-deep, foul-smelling bed sore that was weeping puss. Munchak's wife learned of the wound and asked Lackawanna County Coroner Tim Rowland to review the case.

Based on the condition of the wound, Rowland ruled Munchak died from sepsis from the infected bed sore. Despite that, the citation against the home remains listed as a minimal harm deficiency that resulted in no fine.

Asked if there was a criminal investigation, Lackawanna County District Attorney Mark Powell said the case was never referred to his office.

While the case is troubling, Powell said he does not believe there is sufficient evidence to file charges because Rowland, with the family's concurrence, did not conduct an autopsy and classified the manner of death as natural, not a homicide.

'Unbelievably terrible things'

The state Health Department also cited the Gardens at Scranton with a minimal harm violation March 10 for a separate incident involving sexual abuse. A nurse's aide discovered a male resident, his pants half down, standing over and kissing a bedridden female dementia patient whose underwear was unfastened, according to the inspection report.

The aide told a nurse, but she did not report the assault to anyone because she "did not believe it was abuse," the report says. That allowed the man to remain on the same floor with the victim, placing her and others at risk, for two days before he was moved. The facility also failed to evaluate the victim for psychological trauma, inspectors found.

Scranton Police Chief Thomas Carroll said the department investigated the case, but no charges were filed because the man was deemed incompetent.

In another case, inspectors cited Dunmore Health Care Center on Aug. 4 for failing to properly care for a man found to have maggots in a wound behind his ear. The man received bed baths, but no showers in the month before the discovery, the inspection report says. The home also had no documentation showing he received treatment for the issue.

In each case, the state approved corrective actions that the facilities implemented after being cited.

Mollot and Toby Edelman, an attorney with the Center for Medicare Advocacy, a Connecticut-based nonprofit that advocates for health care for the elderly and disabled, questioned the state Health Department's handling of the cases.

"If you're finding maggots in somebody's ear and chronic pressure sores, those are unbelievably terrible things to happen to a resident," Edelman said. "For it to be called no harm defies any kind of belief."

Mollot said the sexual assault at the Gardens of Scranton is particularly troubling.

"Could you imagine if a friend of yours reported that someone was standing outside her bed with his pants down?" he asked. "They would call the police and press charges against this person."

Citing the state Health Department's policy not to discuss individual cases, a spokesman declined to answer questions about why the agency's inspectors deemed the cases to be minimal harm.

A spokesperson from CMS, which contracts with states to conduct nursing home inspections, said it is "engaged in ongoing discussions" with the state Health Department about the cases and cannot comment further.

Inspector shortages problematic

Zach Shamberg, executive director of the Pennsylvania Health Care Association, a Harrisburg-based nursing home and personal care home trade group, said inspectors consider many factors in deciding how to grade a citation. He said he can't speak to specific cases, but has faith that, overall, inspectors are appropriately evaluating cases.

"There is no incentive for an inspector to grade something as minimal harm," he said. "We have to essentially trust the process that those surveyors ... have done their due diligence and that there are checks and balances so that what is being graded as minimal harm was done so for a reason."

Edelman blames inspectors' reluctance to grade violations higher partly on staffing shortages within inspection agencies, which pressures them to complete reviews quickly. If a citation is graded as actual harm, the facility is more likely to appeal, which can be a time-consuming process, she said.

"They might have to testify at a hearing or have to write declarations to explain what they did," she said. "They've got to get through the survey as quickly as they can. ... It's easier and a little bit less pressure on them if they don't have to do that."

U.S. Sen. Bob Casey said he shares concerns over agency staffing levels. He recently sent letters to state inspection agencies nationwide, seeking information on how staffing shortages are affecting their ability to ensure residents' safety.

"Many nursing home staff are underpaid while performing backbreaking work, leading to high turnover and high rates of staff vacancies," Casey said in a statement. "We are also underinvesting in state survey agencies, which serve as watchdogs and ensure that quality care is being provided."

Mollot and Edelman said they want more federal oversight of state inspection agencies. CMS does independent inspection of facilities and compares their findings to the state reports, but only 5% of homes nationwide are subjected to that review.

"The nursing home industry complains that it's the most regulated industry next to the nuclear power industry ... but what's the point if we don't actually enforce the law," Edelman said.

Contact the writer: tbesecker@timesshamrock.com; 570-348-9137; @tmbeseckerTT on Twitter.