Vermont Reconsiders Nursing Home Oversight in Wake of Brookside Closing

  • Licensed Nursing Assistant Jessiga Gibson places headphones on Brookside Nursing Home resident Tom Ralston as he prepares to check sports scores and read the news on his computer in White River Junction, Vt., Monday, Oct. 23, 2017. Ralston, who is paralyzed and does not have the use of his hands, is leader of the nursing home's residents council. Brookside's owners have announced that the facility will close at the end of November following the Oct. 30 halt to patient care payments from the Centers for Medicare and Medicaid Services. (Valley News - James M. Patterson) Copyright Valley News. May not be reprinted or used online without permission. Send requests to James M. Patterson

Valley News Staff Writer
Published: 11/3/2017 12:21:06 AM
Modified: 11/3/2017 11:24:40 AM

White River Junction — State officials say it’s time to take a look at how Vermont’s nursing homes are regulated following the recent announcement that the 67-bed Brookside Health and Rehabilitation Center will close at the end of this month.

The White River Junction nursing home’s out-of-state owners decided to close the facility after the Centers for Medicare and Medicaid Services announced plans to stop making payments to Brookside as a result of Brookside’s failure to adequately address a series of health and safety violations.

Current and former members of the Green Mountain Care Board, which approved the certificate of need allowing the sale of Brookside to New York-based investors in 2015, say Vermont’s current system for regulating nursing homes needs to be improved. The commissioner of the Department of Disabilities, Aging and Independent Living, or DAIL, which is responsible for monitoring health and safety of the state’s nursing homes, agrees.

“The whole process was really designed to assess in the community, do we have a need for those beds (and) those services?” said Monica Caserta Hutt, DAIL’s commissioner.

But now, she said, the Green Mountain Care Board’s certificate of need process is used when ownership is being transferred, not just when a new facility is proposed.

Some current and former board members think that responsibility for regulating nursing homes should be consolidated under one state agency, perhaps the department of aging, which is already responsible for monitoring the health and safety of the facilities and provides input during the board’s review.

But Hutt said she’s not sure DAIL is equipped to take on the additional responsibility. She does agree, however, that the process should be improved.

“It’s not designed to do what we all think it should be doing,” Hutt said.

When the Green Mountain Care Board, or GMCB, approved the sale of Brookside and the 73-bed Green Mountain Nursing and Rehabilitation in Colchester, Vt., from the Rice family to the New York investors, board members expressed concerns that the quality of care provided could decline under the new owners’ management.

“Notwithstanding the applicants’ stated intention to maintain or improve the quality of care at the Vermont facilities, we express our concern, in light of low CMS quality ratings at Mosholu and Silverbrook — facilities with which one or more of the applicants have been affiliated — that quality ratings for patient care at Brookside and Green Mountain will also decline,” the board wrote in its Aug. 27, 2015, decision.

Rating Drops

CMS uses a five-star quality rating system, with one being much below average and five being much above average, to assist patients, families and caregivers in comparing nursing homes. The ratings reflect health inspections, staffing and 11 “quality measures,” such as re-hospitalization rates, as well as the delivery of flu and pneumonia vaccines, and antipsychotic medications.

At the time of the decision, one of the applicants, Eli Skaist, was a licensed nursing home administrator in New York, New Jersey and Vermont. At the time the application to the GMCB was filed, Skaist was administrator of Mosholu Parkway Nursing and Rehabilitation in the Bronx, but he left that position before the board made its decision. At the time of the initial filing, Mosholu had a three-star CMS rating, but that fell to two stars by the time the board made its decision.

Skaist told the board that “while he was at the facility, its overall star rating had improved,” according to the board’s decision.

Another member of the ownership group, Abraham Rubin, had previous nursing home experience as the chief executive and operator of Silverbrook Rehabilitation and Nursing Care Center in Niles, Mich. At the time of the board’s review, Silverbrook had a one-star CMS rating. Silverbrook was sold in 2015. A one-star nursing home named Chalet of Niles, is now operating at the same address.

Rubin is no longer listed as one of Brookside’s owners on CMS’s website. The other two investors, Yechiel Landau and Shmuel Love, had no previous experience owning or operating nursing homes, but they had real estate development and management experience, and Landau owned a New York-based home health care service company.

The Green Mountain Care Board’s concerns, however, were not sufficient to deter it from granting a certificate of need.

“Based on the applicants’ explanation and assurances at public meeting (sic), however, we expect that they will prioritize quality of care, will appropriately invest in capital improvements to the aging facilities, and will maintain trained, adequate, and appropriate staffing at each facility,” the board wrote in its decision.

In addition to concerns about quality, Jessica Holmes, the sole remaining board member who was on the panel at the time of the Brookside decision, recalled that at the time of the decision she was personally concerned about how Skaist would oversee operations from afar.

Though he did not plan to move to Vermont, Skaist told the Green Mountain Care Board he would “visit Vermont weekly, at minimum, to oversee operations at each facility.”

Soon after assuming ownership of the nursing homes in 2015, the ownership group hired Mayer Spilman, another New Yorker with experience in nursing home administration, to assist Skaist with the management of the Vermont facilities, according to the group’s first implementation report provided to Vermont officials.

Spilman said in an interview in June that he was visiting Brookside weekly.

Tom Ralston, the president of Brookside’s resident council, said last month that the investors sometimes visit the nursing home, but “they’re not too involved with residents. We know some of them by name.”

Attempts to reach Spilman, Brookside’s owners and the Vermont attorneys who represented them during the GMCB’s review process were unsuccessful.

The Vermont department of aging documented numerous quality issues at Brookside under the new owners in recent inspections, including food safety issues, low staffing levels, a gap in contracts between providers of rehabilitation services that left some patients without such services for a time, and failure to ensure that patients see their doctor regularly.

Despite the board’s concerns in 2015, Holmes said in an email last month that she believes the board “made the best decision it could with the information available at the time.”

At the time, Brookside had a five-star overall CMS rating and the Colchester nursing home had a three-star rating. As of late October, Brookside has a two-star rating. Green Mountain in Colchester still had a three-star rating.

“We were hopeful that they would maintain Brookside’s 5-star rating, particularly since there were no major staffing changes planned and there was the promise of capital improvements,” Holmes said in her email.

The new owners told the GMCB that they would spend $10,000 to improve Brookside’s therapy gym and would be investing an additional $9,300 in repairs required by required by the U.S. Department of Housing and Urban Development that helped finance the $3.96 million sale. The new owners also said they would establish a reserve fund, in accordance with HUD guidelines, that would be used to invest $50,000 annually in structural and mechanical upgrades.

In her letter of support for the sale addressed to Skaist and provided to the GMCB, DAlL’s commissioner at the time, Susan Wehry wrote, “I believe you will operate the facilities in a manner that promotes dignity, safety and self-determination, but will also work to embed practices associated with culture change.”

The letter and the new owners’ presentations to the board made it seem like a good decision, Holmes wrote.

“With DAIL’s blessing and the promise of new investment in a well-functioning nursing home, the GMCB held hope that this would be a smooth transition and a good outcome for Vermonters,” she wrote.

Thomas E. Rice, a White River Junction resident, was the primary owner and operator of Brookside at the time of its sale. He worked at Brookside, which was started by his parents, for 50 years, beginning when he was a student at Hartford High School.

At the time of the sale of Brookside and Green Mountain, which Rice acquired in 2000, he told the Valley News that he and his family had decided to sell because no one in the next generation wanted to take over.

In the wake of the Oct. 19 announcement of Brookside’s planned closing, the Rice family released a statement through their Norwich-based attorney Scott McGee, asserting that they, like the GMCB, thought the new owners would maintain the quality of care at Brookside.

“The former owners of Brookside Nursing Home, including former Brookside Administrator Thomas Rice, are deeply upset by the events and circumstances being reported about the significant deterioration of conditions at Brookside Nursing Home that has occurred since the Rice family sold the nursing home in 2015,” the statement said.

“The sale and the bona fides of the buyer were reviewed in depth by the Green Mountain Care Board in a pre-purchase review process that took more than a year to complete,” the Rices wrote. “It appeared at the time that all necessary pieces were in place for a successful transition and for continuing the quality care that was the hallmark of Brookside Nursing Home while under the Rice family ownership.”

Out-of-State Buyers

There has been a trend in recent years of out-of-state companies buying nursing homes in Vermont, said Hutt, DAIL’s current commissioner. The shift away from mom-and-pops to out-of-state corporations, she said, is “not a negative in and of itself,” but it does mean there is an increased distance between the owners and the people holding them accountable, which “creates a need for a different kind of oversight.”

For example, Hutt said, overseeing these new owners requires that state regulators obtain a history of adherence to the owners’ stated intentions across the country.

“No longer are we looking at local providers but national providers far beyond our known and quantifiable information,” she said. “As the process has developed, entities have expressed their intent related to type of resident, guidelines for entrance criteria, type of care, etc. but there is no regulatory role built into the process, so no ‘teeth’ to guarantee adherence.”

It’s unclear what appropriate penalties might be, Hutt said. The current process does not include penalties and withdrawing a certificate of need “might be a real hardship to a community and to residents,” she said.

As things now stand, the GMCB’s role in monitoring nursing home quality is limited. Once the board made its approval, aside from a series of three implementation reports submitted to the GMCB, it was up to the department of aging to ensure that Brookside was functioning as it should, in accordance with federal guidelines, said the board’s chairman Kevin Mullin, a former state senator from Rutland who joined the board in May.

The longer serving members of the board don’t believe that approving certificates of need for nursing homes is a proper role for the board, Mullin said. The board’s members “don’t have any follow up” once they make a decision, he said.

In looking for care for his mother, Mullin said he saw homes of varying quality around the state. Overall, Mullin said “We as a state have to be doing a better job with nursing homes.”

Oversight Reform

Conversations about how the state might approve its approach to regulating nursing homes have just begun.

It doesn’t seem like simply shifting the responsibility of issuing certificates of need to DAIL will do. Hutt worried that taking on the responsibility of monitoring a group’s adherence to commitments made during the certificate of need process could have the effect of “potentially diffusing our focus on health and safety.”

Taking on the additional burden also would require more employees with expertise in finance, rate setting, surveying, site visits and regulatory compliance, she said.

Conversations between the GMCB and DAIL about how this process ought to work are just beginning, but Hutt said she thinks they ought to start “almost from scratch.”

For his part, Con Hogan, who retired from the GMCB in September, is putting together a white paper about the state of Vermont’s nursing homes in hopes of getting a conversation going among the state’s policymakers.

Now is the time for such a review, Hogan said, because almost 20 percent of the state’s approximately 3,000 nursing home beds are empty.

At the time of the Brookside approval, the board felt pressure to approve the sales, in part, to ensure that the beds remained available to Vermonters who needed them, said Hogan, who served as Vermont’s secretary of human services in the 1990s and as Corrections commissioner in the 1970s.

“We almost had to approve these things because who else was going to run them?” he said.

Wehry, in her 2014 letter to the GMCB, asserted that the state’s residents needed Brookside and Green Mountain’s beds, citing a 2008 report from the department of aging on the future of long-term care and independent living in Vermont.

But, as of Oct. 23, just 33 of Brookside’s 67 beds, or 49 percent, were occupied. A report of nursing home bed occupancy across the state in September indicates that the facilities overall were at 83 percent of capacity.

“Vermont has done an excellent job of setting up alternatives,” Hogan said, citing the work of home health agencies.

Though the state might not need as many beds as it currently has, Brookside’s closure is not strategic, Hutt said. Such a closure leaves patients and their families scrambling to find beds to suit their needs.

Brookside’s patients and families might be forced to look “farther afield than we would like,” Hutt said.

Orange County’s sole nursing home, Gifford Health Care’s 30-bed Menig in Randolph Center, is full. Windsor County’s nursing homes were 74 percent full in September, according to the occupancy report, which excluded three nursing homes that do not accept Medicaid, including the 14-bed Mertens House in Woodstock, which was full when a reporter called recently.

In addition to the empty nursing home beds, Hogan said his effort to draw attention to this issue is motivated by the continuing trend of more out-of-state ownership, the varying quality of the state’s nursing homes, the cost of care in a nursing home, and the challenges regulators have in keeping tabs on them.

“I think it’s time to look at the whole thing,” Hogan said. “And get it public and put a spotlight on it.”

Nora Doyle-Burr can be reached at or 603-727-3213.

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