BELLOWS FALLS — After fighting tooth and nail to stay open, one of fewer than a half dozen privately owned nursing and rehabilitation homes left in the state will close on April 28.
Patients at McGirr Rehabilitation and Nursing Center, LLC, on Atkinson Street were told last week they needed to find an alternative facility. For many, that will mean a move to Springfield.
The circumstances of the closing created a stir.
State Center for Medicare and Medicaid Services (CMS) surveyors “tagged” the facility, which has operated since 1926, for breaching protocol on two occasions with one particular patient that the facility claims it accepted only after a personal appeal by state Department of Disabilities, Aging and Independent Living (DAIL) Commissioner Susan Wehry, who said she can't remember making the request.
The facility was also sanctioned for other paperwork violations.
Owner Margaret Perry said nothing that actually happened or failed to happen was life-threatening and, once the problems were tagged, they were quickly remedied once noted.
But by then, she said, “it was too late.”
She was given 60 days to continue billing for services to Medicaid and Medicare patients, but that grace period ends April 28.
And although she has contested the findings, “I don't have private funds to keep the place open until my appeal in July,” she said.
State meets with residents
One patient, Ella LeFevre, described the eight members of at least three different state divisions under the Department of Disabilities, Aging and Independent Living (DAIL), who descended unannounced on the 30-bed facility the previous day, as “traumatizing.”
“I didn't know who they were,” she said. “They stormed in and took over and wanted to talk to me. I refused. I didn't know who they were. I thought it was a raid.”
She said their attitudes and behavior reminded her of “storm troopers.”
Wehry was present last week to speak with residents and, she said, to answer questions from family members and caretakers.
DAIL is part of the Agency of Human Services, which provides services to Vermonters age 60 and older and to those with disabilities.
Wehry, who lives in Burlington, is a geriatric psychiatrist who was appointed as commissioner in 2011. She previously had worked for the Delaware Agency of Human Services, as well as similar offices in Massachusetts and Louisiana. She was also a clinical associate professor at the University of Vermont's College of Medicine.
Wehry listened to LeFevre's description and observed matter-of-factly that “that was not the way it was supposed to happen.”
Wehry had just met with owner Perry behind closed doors in the facility, and the commissioner agreed to meet with some of the concerned family members.
“Our hands are tied,” she told them. “Our concern now is to get everyone here to another facility, and to make the transition as easy as possible.”
Ella LeFevre, who had been at McGirr's since September last year, said that “the food is good. The care is good. The nurses are good. What more do I want?”
Her daughter sees her almost daily “because she lives close by” and said she won't be able to get up to Springfield, if that is in fact where she will end up.
“This is going to be a big deal to her,” LeFevre said. “I just know it.”
'Rude and condescending'
Given Wehry's precipitating role in the events, some of the families and members of the community pressed Wehry to make some accommodations to keep McGirr's open.
Perry said the situation started when she was asked personally by Commissioner Wehry to take a patient “who had been refused at every other facility in the state. The next step was to send her out of state.”
Perry said she has been asked before to take other patients the state has difficulty placing and has almost always accepted.
She knew the reason this patient was so difficult to place was because she had a history of making complaints about staff and nurses, “and no matter what the complaint is, both I and the state must launch an investigation.”
“She's a very independent person,” Perry said. “We don't have a lot of experience with clients like her, but I agreed to take her at the commissioner's personal request.”
When questioned about whether or not she had specifically requested Perry to take a “difficult patient the other facilities refused to take,” Commissioner Wehry began explaining how the process works and in what circumstances she might become involved.
When the question was repeated, and asked directly if she was saying she had not personally asked Perry to take the patient “with a known track record of complaints of nurses and staff in the past,” as Perry alleged, Wehry looked down, then covered her face.
“I can't honestly say I remember whether or not I did,” she said. “I don't remember that I asked her to take that patient. That's not the way I remember it.”
Wehry refused a follow-up question, saying, “I'm here to talk to the patients.”
Debbie Austin, whose mother Joan Sumner has been a resident for many years, was at the meeting and described Wehry as “incredibly rude and condescending.”
“It was like she was coming in and telling me she knew more about the facility than [those who] come here every day at all hours,” Austin said.
Frustrated, Austin added that Wehry's “hands are tied, because she wants them tied.”
Ray Massucco, a Bellows Falls attorney, had two family members living at McGirr's in the last years of their lives. He attended the meeting with Wehry both to support the facility and its residents and also to meet with the commissioner.
“My observations have been that clients and family members are treated with the utmost care and attention one could hope for,” he noted in a statement to the commissioner, adding that “the potential loss of McGirr's to the Bellows Falls community would be immeasurable.”
“The care and attentive staff cannot be duplicated in any more 'modern' facility,” Massucco said.
Massucco said of the meeting, “Wehry's 'memory' after flat out denying she did it made her entire conversation suspect in my mind.”
He had asked Wehry directly if “there was nothing the state could do.”
“I don't have any say,” she told Massucco. “The state has no authority.”
When asked if she felt there was anything she could do to change the way the situation was handled, she reiterated, “I have no influence over the CMS decision, no influence over the timing of the appeal. They are not certified. I think it is very regrettable that McGirr's could not meet the minimal standards of compliance - and there is nothing I can do about the failure to come into compliance.”
Massucco noted in an earlier letter to Wehry that when “Irene struck, all the rules, regulations, guidelines were applied in a manner that allowed Vermonters to deal with the disaster in a timely way...[and] the hundreds of millions of dollars spent have not been begrudged by any Vermonter.”
Wehry told Massucco at the meeting that “the state has not been asked for any funds.”
Massucco had placed both his mother and his brother Johnny, who had Down syndrome, in the facility after it became too difficult to care for them at home.
During their last years, each lived just down the hall from the other, and each could see the other every day, he recalled. “I could stop in on my way back if I was out of town for a meeting - any time, it didn't matter when. I was allowed to have meals with them and I did, at least once or twice a week I'd sit down and eat with them.”
How it happened
At issue are the violations, or “tags,” that state Center for Medicare and Medicaid Services (CMS) surveyors issued to McGirr's.
Perry, who declined to describe specifics, citing patient confidentiality, said the challenging patient created a paradox for compliance. “Since she is here voluntarily, we can't make her do something, or prevent her from doing something,” Perry said.
But the facility was tagged for allowing one voluntary action of this particular patient's to occur, she said.
The patient subsequently made a claim against another resident. “We didn't strictly adhere to protocol exactly in dealing with that because we knew [the other patient and felt he was probably innocent],” Perry said. “That was another issue they found.”
Perry acknowledged her limited experience in dealing with the particular challenges that this patient presented to her and her staff. “I called in consultants, and put my head nurse in charge.”
The other violations were a matter of keeping records with patients who were sometimes noncompliant with their health care plan, and nurses did not note their “refusal” of services in their medical record every single time.
Perry also said that in dealing with the issues with the care plans of the one difficult patient, “The surveyor even told me there was no way I could have known about the regulation's interpretation in that case.”
She described a bureaucratic nightmare of “constantly changing regulations that are entirely subject to interpretation from surveyor to surveyor, or even by staff. In a big institution, there is someone [dedicated] to reading and interpreting each new regulation and sending those down the line [in more clear language].”
“We don't have that,” Perry said. “There's no way we could.”
She is clear, however, that she did everything she could to come into compliance once she knew what was expected.
“It was clear that it wasn't my care,” she said. “It was my documentation, something I could have been taught in 30 minutes. But that's not what I got.”
Perry said she started at McGirr's in 1966 and has always loved the work. “It's not just a nursing home. It's a home. People live here. Family come and go as they please,” she said, still speaking in the present tense.
She said she complied with the directives and made immediate corrections.
But Perry said that she ran into the most human of problems that in the end did in her and the business.
She found nursing staff for the small facility who were excellent with the patients and who loved their jobs, she said. “But I've found, in my business, that most often people who are good with the patients aren't so good with the paperwork [the Center for Medicare and Medicaid Services now requires].”
Linda Cohen, of Dinse Knapp McAndrew in Burlington, one of Perry's two attorneys (Tim Connolly is the other), specializes in health care and commercial litigation.
“It's definitely taking significant resources to deal with survey issues [in Vermont],” Cohen said.
She noted that Perry never got to an examination of the facts by any judicial authority, and “there were significant factual errors in the surveyor's reports.”
Basically, Perry said, “you can go into any facility and either find violations, or go in and not find violations. It depends on what your intent is. No facility is perfect. It can't be. We're dealing with humans and humans make mistakes.”
Perry alleges that the state has “been trying to shut me down for years. I've always been able to remedy the situation and that's what I thought this time. But I ran out of time, and I ran out of options. I have to close.”
Unpopular decision
Reached by phone this week, state Rep. Matt Treiber called the closing a “huge issue, in that keeping it open allows people to stay in the community where they live.”
“Going to a corporate nursing home is a slightly different atmosphere,” Treiber said. “Closing means people who worked there will lose their jobs, and staying in the town where they grew up or lived is no longer an option.”
He said that he and his colleagues on the House Committee on Health Care are “looking into what role the state plays, and what role the federal government plays in the process, and how DAIL maintains licensing for an organization like McGirr's.”
“We're doing all we can do to figure this out,” Treiber said.
Wanting to stay close to home
Many of the residents are expected to move to Springfield Nursing and Rehabilitation, a center owned by Revera Inc. Health Systems, which owns and runs retirement facilities, long- and short-term nursing homes, and rehabilitation centers throughout the United States.
Linda Smith, who has done the accounting and payroll at McGirr's for more than 35 years, worries that once residents move someplace else, “these residents will not be able to see their families. They'll get depressed.”
Doug McPhee noted that a lot of the family members who visit now can't drive. “They walk over and visit. It's a quality of life issue. We only have a limited amount of time on earth and [moving these patients out of McGirr's] almost certainly shortens it. Older people don't like to move. It's hard on them.”
Doc Guyette of Saxtons River said he can still drive, but is not certain he will be able to keep up the daily visits to see his wife when she moves to a facility in Ludlow.
“They should have let it stay open so the residents wouldn't have to move while they settle their issues, instead of moving people away from their relatives,” he said.
His wife has been at McGirr's for seven years and he said he knows “she gets more care and attention here” than she will at a larger facility.
Community support
With barely 24 hours notice after posting on Facebook, protesters showed up in blustery, rainy April weather on Monday to protest the closing.
Wendy Odette has had both friends and family spend their last years at McGirr's and lives nearby. “This nursing home has been a part of our lives and has served this community well,” she said.
Judy Halberg served as a physical therapist at McGirr's for 35 years and said she loved it.
“Margaret treats her employees with such affection. She insists on cleanliness...and happiness,” Halberg said from her walker seat.
Her daughter, Deb Halberg, said that both her father and grandfather had spent their last years at the facility “until they passed. [McGirr's] has served the local community faithfully. Having them here was good because of ease of access.”
Greater Falls Area Chamber of Commerce Assistant Executive Director Evelyn Weeks showed up to “speak out about the loss of jobs, which is a huge factor in our community.”
Adding that her mother served with a local church and came to the facility once a month to deliver services with the pastor, Weeks called the closing “a fracture in our community.”
“McGirr's is part of who we are,” she said. “It's not a big corporation.”