GOP Plan Opens Door to Nursing Home Controversy : Care: Proposal to turn oversight over to states draws fire. Alabama woman’s story shows patients’ vulnerability.

MOBILE, Ala. —  On the morning of Jan. 26, 1993, Dorothy Garrison got the kind of telephone call that is the stuff of nightmares for every American with a parent in a nursing home.

“Your mother has fallen,” the nurse at Cogburn Health Center said. “She’s bleeding pretty bad.”

The call was not entirely unexpected. Merle Davis, then 86, had been admitted to Cogburn nine months before for what was to have been a brief stay for physical therapy to help her walk. But the therapy ended after three weeks, and her health had been on a downward spiral ever since.

Repeated falls were her biggest problem. When she resisted being strapped into her chair for protection, the nurses slipped sedatives into her ice cream. The more drugs she took, the more confused she became and the more she fell. When she tumbled again--for the 14th and final time--on that January morning, she struck the ground so hard that her right eye popped out of her head, leaving her half-blind.

Only later did Garrison learn about the Nursing Home Reform Act of 1987, a federal law that protected her mother from being drugged or restrained against her will. She sued. Two weeks ago, while denying any wrongdoing, the nursing home settled the case for $690,000. Davis, her health much improved now that she is living at home with her daughter, collected the check on Wednesday.

That, however, is not the end of the story. The ending may be written soon in Washington, where a little-noticed provision to abolish the Nursing Home Reform Act is wending its way through the committee rooms of Congress.

As part of their plan to turn responsibility for Medicaid--which pays for nursing home care--over to the states, congressional Republicans are considering whether to repeal the law and leave the states in charge of regulating their nursing homes. Patient advocates, arguing that inadequate state supervision had been the reason for the law in the first place, are fighting an uphill battle to keep it.

“We are really facing a return to the Dark Ages in nursing homes if we don’t retain this law,” said Elma Holder, executive director of the National Citizens’ Coalition for Nursing Home Reform. “Eliminating these standards will jeopardize the health and lives of hundreds of thousands of vulnerable citizens.”

GOP Defends Plan

But House Republicans, who are backing the push to deregulate, counter that states can do a better job than the federal government. They cite a 1989 plan pushed by 49 of the nation’s governors that said the federal standards were ineffective, and they say that their bill requires states to draft a “nursing home residents’ bill of rights” that embraces the spirit of the federal law without its cumbersome bureaucracy.

Said the bill’s sponsor, Rep. Thomas J. Bliley Jr. (R-Va.): “Rather than weaken protections for nursing home patients, our bill strengthens them by ending an eight-year experiment with federalization of nursing home standards that by all accounts has been a total failure--a bureaucratic nightmare that is confusing, expensive and counterproductive.”

The Nursing Home Reform Act--known in health care industry circles as OBRA ‘87, after that year’s Omnibus Reconciliation Act, of which it was a part--was passed in the wake of an exhaustive nationwide study that cited a “litany of abuses” in nursing homes.

The idea behind it is to give nursing home residents as much control over their own lives as possible. Considered by many as the residents’ bill of rights, the act sets uniform federal standards for virtually every aspect of nursing home life--from nutrition and dental care to the treatment of urinary incontinence and the use of physical restraints.

The law has spawned a quiet revolution in the lives of the 1.9 million frail and elderly Americans who live in the nation’s 16,608 nursing homes. Psychotropic drugs of the sort Davis received are being used much less frequently, and so are physical restraints; one study found that while 41% of all nursing home patients were physically restrained in 1989, the percentage was cut to 22% by 1991.

“The federal law set down a philosophy,” said Debbie Allen, a Cleveland ombudsman who mediates patient complaints. “It gave consumers the right to make choices, to determine their own lives in the nursing home.”

Central to this philosophy is a strict regimen--Allen likens it to “a recipe”--that the law requires nursing homes to follow in evaluating their patients. Both the patient and the family have a right to participate in periodic assessments, which take place at “care plan meetings” and are designed to solve a problem like Davis’ falling before restraints and medication become necessary. But in Davis’ case, Alabama regulators found that the required assessment never took place.

These assessments generate reams of paperwork, making OBRA ’87 a thorn in the side of nursing home administrators. If Congress goes through with its plan to slash Medicaid funding, nursing homes will lose reimbursement money when the program goes back to the states. The equation, industry leaders say, is simple: With less money, they want less paperwork.

“These are huge cuts in funding--$182 billion for Medicaid, $68 billion of that for long-term care,” complained Dave Kyllo, spokesman for the American Health Care Assn., which represents 11,000 long-term care facilities. “We feel that states are going to have to have the flexibility to do their own thing, without keeping up with the federal paperwork.”

Paperwork Critic

As the owner of the Cogburn Health Center, Bill Roberts couldn’t agree more.

The sprawling brick facility has been in his family for 56 years since it was founded by his grandmother, a pioneering nurse named Maude Roberts Cogburn. As a former member of the Alabama Legislature (he got out of politics after a failed 1978 bid for lieutenant governor), and the current legislative liaison for the Alabama Nursing Home Assn., Roberts has been closely tracking the debate over OBRA ’87. It is time, he says, that the law be “revisited.”

He is a slender man with horn-rimmed glasses. On his desk is a copy of Long Term Care, an industry trade magazine, with a cover story headlined “Why Providers Hate Regulations.” Next to it is a copy of Philip K. Howard’s book “The Death of Common Sense: How the Law is Suffocating America.”

Roberts flips open the book and points to a page that talks about how the law often loses sight of its goals. The Nursing Home Reform Act, he complains, has done just that, stripping nursing of its human element. “We are overwhelmed by this sea of paperwork that comes out of Washington,” he said. “We have gone so far now that we spend more time documenting and doing paperwork than we do giving patient care.”

As for Davis, Roberts sees the case as a “tragic” accident. Despite the large settlement he is paying out, and despite the findings of Alabama regulators that Cogburn failed to conduct the assessment that could have put a stop to the elderly woman’s falling, Roberts maintains that his facility’s only flaw was that it failed to meet OBRA’s documentation requirements.

Crucial nurses’ notes that would have proved that Cogburn conducted the assessment mysteriously disappeared from Davis’ file, he says, and other forms were not filled out. “They killed us in court,” he said, “because we did not have the proper documentation.”

Garrison doesn’t quite see it that way. To her, the Nursing Home Reform Act is much more than a paper chase. “You know,” she said solemnly, “my mother wouldn’t be living today if she didn’t have those rights.”

Tough Choices

In a sense, Garrison is typical of many Americans. She is a homemaker; her husband, Wayne, is a retired maintenance man for a local paper mill. They own a simple three-bedroom brick house in a subdivision where people keep rockers on the front porch and children leave their bicycles on the sidewalk.

When Davis fell ill with a gastric ulcer that weakened her to the point that she could not walk, the couple were confronted with the kind of crisis that faces families across America: Should we take Mom home to live with us, or should she go to a nursing home?

Davis made the decision for them.

“Mimaw,” as her children and grandchildren call her, always had a defiant streak. Now 88, her delicate face framed by thick white curls, she likes to tell the story of how she eloped, slipping away through a cotton patch beside her family farm in Laurel, Miss., to wed a sharecropper’s son of whom her father disapproved. She views the tale as testimony to her own independence.

When she could no longer live on her own, she reluctantly moved in with the Garrisons. But when Wayne underwent heart-bypass surgery, Mimaw decided it was time for her to move out. “It was a very hard decision, yet I wanted my folks to be happy,” she says now. “I never wanted to live with my children. Not that they didn’t want me, but I wanted them to have a life, like I had.”

It was Wayne who suggested Cogburn. The home had a good reputation in Mobile, and when Garrison first brought her mother there, she could not have been more reassured.

“Everybody was so nice over there,” she recalled, “and it looked so clean.”

But soon, it seemed, her mother’s health was spiraling out of control. The woman who had once been so lucid--and who is lucid today--was hallucinating and babbling incoherently. She had never been incontinent--and she is not today--yet the nursing home had her in diapers. One day, Garrison was horrified to find her mother in a straight chair, her arms tied at her sides. And at every turn, it seemed, there was another awful fall--a bruised nose here, a broken rib there.

It was not until the eye injury, when the elderly woman was sent to the hospital and taken off the sedatives, that Garrison understood what had caused her mother’s deterioration. And it was not until she placed her mother in a second nursing home--one that handed her booklets that explained her rights under the Nursing Home Reform Act--that she decided to sue. When the new facility attempted to restrain and medicate Davis, both daughter and mother knew they had the right to refuse.

It was tough to find a lawyer in Mobile to take the case. After a few failed attempts, Garrison turned to out-of-town lawyer Jack Harang, who is married to a free-lance investigator, Sue Harang, who specializes in nursing home abuse.

The Harangs review dozens of nursing home complaints every year, and say they take only those cases where both the spirit and the letter of the Nursing Home Reform Act have been violated.

“If this is truly a paper chase,” Sue Harang said, “then I’m not interested.”

The trial opened Sept. 11 in Courtroom 8200 of Mobile’s Government Plaza. Circuit Court Judge Chris Galanos presided. Testimony lasted just two days before the settlement was offered.

A Judge’s Concern

For Galanos, the case hit close to home. At the outset, he disclosed an unusual personal interest: Three months ago, his 72-year-old mother died after she fell down in a nursing home where she had lived for just a week. Now, the 49-year-old jurist says, his mind is filled with questions: Was her care plan conducted? What kind of drugs was she taking? He has become convinced that federal oversight of nursing homes is necessary.

“I think it would be an egregious abdication of a moral and legal obligation for Congress to turn its back on the regulation of nursing homes,” he said. “We’re not talking about spotted owls here. We’re talking about real live human beings, with faces, with souls, with hearts, with families.”

Davis, meanwhile, has big plans for her $690,000. She went shopping for a new dress and she wants to travel; the last time she was in an airplane was half a century ago, at a county fair, when rides were $1 apiece.

“I’m gonna go out West,” she declared. “My kids have been out there, and they want to take me. I think we’re going to fly.”

There is one other place she would like to go: to Washington, with Sue Harang, to testify on Capitol Hill on the importance of the Nursing Home Reform Act of 1987.