When It Comes to Nursing Home Safety, Governor Fix-It Has Been Down in the Basement

A series of articles by Kay Lazar in the Globe has brought us the unsavory story of Synergy Health Centers, a New Jersey company that arrived in Massachusetts three years ago and now operates 11 nursing homes here. The Globe details the dangerously substandard care  that Synergy is providing to the residents of these nursing homes (medication errors, insufficient training, short staffing, a scabies outbreak, the death of a patient who was dropped while being transferred by mechanical lift to a wheelchair). Meanwhile, Synergy’s officers are making seven-figure salaries.

The Synergy stories also reveal the laxity of our nursing home licensing process. The health department’s investigation of Synergy failed to uncover, to take just one example, the arrest of one of Synergy’s owners for 1400 code violations and unpaid fines in a New Jersey apartment complex he once owned.

Nursing home safety in general and Synergy’s track record in particular came to the Legislature’s attention a while back, and it responded by directing the health department to establish regulations to ensure that a hearing with opportunity for public comment be conducted before any nursing home could be closed or sold.

And thereby hangs a tale of wrangling between the Legislature and the Baker administration, BFF’s on most issues, over the latter’s reluctance to exercise its regulatory power.

To be fair to Governor Baker, the Legislature’s directive to the health department to provide for public hearings happened in mid-2014, and the Patrick administration failed to act on it during its last six months.  But after Governor Baker took office in 2015, the foot-dragging continued. One of the Governor’s first initiatives was a “regulatory pause” — a  prohibition on any new agency regulations in order to start relieving the Commonwealth’s “job creators” (his term) from excessively burdensome oversight. The regulatory pause soon lengthened into a regulatory moratorium by way of an Executive Order requiring agencies to take a year to review every regulation and to discard those that “unduly and adversely affect Massachusetts citizens and customers of the Commonwealth.” Government regulations, the Governor often says (during his most Pioneer-and Cato-Institute moments), are like the junk that accumulates in your basement and which, in the interests of good housekeeping, you need to clean out every so often.

By May 2015, five months into Baker’s term, there were still no nursing home licensing regulations and no timetable for their arrival. To be sure, the press of other business — like the opioid crisis — was keeping the health department busy. And the ranks of health department staff were about to be thinned through the early retirement incentive program that the Governor and Legislature had agreed on as a cost-savings move. Yet even taking those problems into account, it was difficult to avoid the conclusion that protecting Synergy Health Centers from meddlesome governmental regulators was more important to the Baker administration than protecting elderly and disabled nursing home residents from Synergy Health Centers. Governor Fix-It may have been attending to a lot of problems, but on the issue of nursing home safety, it might be said, he was downstairs cleaning out the basement.

Therefore, frustrated by the lack of progress on nursing home licensing and concerned that the Governor’s blinkered view of regulations extended beyond just the issue of nursing home licensing, the Legislature decided to require agencies to maintain a log of the statutes passed in the previous 24 months for which regulations were required and for which regulations had not yet been adopted. Also, agencies were directed to make this information available on their websites.

The Governor’s response to this mandate?  Veto — on the ground that the requirement would unnecessarily burden state agencies. Yet at the same time, as the Globe noted, the Governor’s health department was unable to find any reason to deny Synergy another nursing home license, its 11th, even after many more reports of reports had become public that a Synergy-owned nursing home mistakenly put ear drops into a patient’s eye and then did not call a doctor until the patient had suffered for five hours.

And the Legislature’s response to the Governor’s veto?  Override — along strict party lines.

So where are we now?

There are no signs yet that agencies are complying with the requirement to post the regulations they’ve been directed to adopt, even though that’s been the law for several months now.

In January the health department finally produced the long-sought nursing home licensing regulations, 18 months after the Legislature requested them. The department also acknowledges having received more than 11,000 complaints related to nursing homes during the past year alone. It’s planning to launch a program of surprise inspections to curb abuses at problem facilities. The Governor has proposed hiring two more nursing home inspectors for this effort.  (There are 414 nursing homes in Massachusetts.)

The regulatory review and basement-purging that the Governor ordered a year ago is due at the end of March. For the sake of nursing home residents, one hopes that agency staff will then be free to attend to other matters and that the moratorium on new regulations will be lifted when it’s appropriate to do so.

 

The Supreme Judicial Court Nomination Factoids You’ve Been Waiting For

[Update, February 5: Justice Spina, who turns 70 this October, announced today that he will also retire in August. Because the Court’s term runs from September to August, this will likely make for a smoother transition.] 

On Wednesday, Supreme Judicial Court Justice Robert Cordy announced that he will retire in August. This means that Governor Baker will be appointing a majority of the members of the SJC — and pretty soon. Later this year, Justice Francis Spina turns 70, and under a state constitutional amendment approved by the voters in 1972, must retire.  Justices Margot Botsford and Geraldine Hines reach the retirement age of 70 in 2017.  That’s a majority.

Here are some SJC nomination factoids.  Use them to amaze your friends.

Since the 1972 state constitutional amendment took effect 44 years ago, two other Governors besides Baker have had the opportunity to appoint an SJC majority: Governors Cellucci and Patrick.  Soon Baker will join them and will beat their times by several years.

Since 1972, every Governor but two got to make a couple SJC appointments: Jane Swift and Mitt Romney didn’t get to make any.

When asked yesterday for names of SJC role models, Baker named Justices Spina and Cordy, which makes sense — they are the two current SJC Justices who were nominated by Republican governor Cellucci.  But as it happens, Governor Cellucci, along with Governor Weld, launched the judicial careers of four of the five other SJC Justices, all of whom were elevated to the SJC by Deval Patrick: Governor Weld appointed Ralph Gants and Barbara Lenk to the Superior Court and Fernande Duffly to the Probate and Family Court in the 1990’s. Governor Paul Cellucci appointed Geraldine Hines to the Superior Court in 2001. Bipartisanship reigns.

The constitutional amendment that mandates retirement at age 70 was approved by the voters three-to-one in 1972. Some of those voters were 26 then, now they’re 70. Life expectancy then was 71.2 years, now it’s 78.7. There’s a constitutional amendment before the Legislature this session that would raise the retirement age to 76, but the Judiciary Committee has given it an unfavorable report.

Judges in other states where a mandatory retirement age applies have sued their states, arguing that such laws discriminate against them on the basis of age in violation of their constitutional rights.  No success so far.

“Stuff”: The Charlie Baker Selfie in Verbal Form

Saturday’s Globe included a significant contribution to the study of Governor Charlie Baker’s impressively high poll numbers: Baker’s very fond of taking selfies at public appearances, and his fondness is paying off by making him seem likable and approachable. “I like the informality of it, and I like the fact that it has a certain festive notion to it,” Baker told the Globe. “And truthfully, it’s a little more intimate than the portrait stuff…”

Stuff.

“Stuff,” I have discovered in my first year as one of his constituents, is one of Charlie Baker’s favorite words, and the Governor’s many “stuffs” boost his popularity like his many selfies do — they make him seem likable and approachable.

Here’s a catalog of only a few examples of “stuff” from the Baker discourse this year — selfies in verbal form:

*******

Q. What’s it like to be involved in a modern political campaign?
A. Campaigns are about many things — slogans, phone calls, fund-raisers, retail campaigning, and more. But, in the end, they are also about acts of God — stuff that happens that no one can predict or control.
(Boston Globe, 9/22/14)

Q. How are storm preparations affecting your ability to move forward with a plan to close the budget deficit?
A. It certainly affects the timing on some of this stuff.
(Taunton Gazette, 1/28/15)

Q. Do you have a comment on the demonstrators who blocked Interstate 93?
A. These protesters will be dealt with swiftly and appropriately, but public protests are sort of what being an American is all about and I approve of the more peaceful stuff.
(Boston Globe, 1/24/15)

Q. You visited the Biomanufacturing Education and Training Center at Worcester Polytechnic Institute. What were your impressions?
A. There is a lot of great stuff going on.
(Worcester Telegram, 1/10/15)

Q. What do you think of the idea of a corporate tax amnesty program to generate cash for state spending needs?
A. I think the best solution, of course, would be not to have to ever do this stuff, but over time things happen and using this as a vehicle to sort of clean up another backlog is not a bad idea.
(Metrowest Daily News, 12/10/14)

Q. What’s behind your administration’s decision to release monthly data on opioid abuse in each county?
A. We’re hoping by publishing this stuff and making it available, people will be better positioned to incorporate that in their thought processes at the local level.
(Georgetown Record, 4/24/15)

Q. Do you favor funding some portion of our transportation and other needs out of the yearly operating budget instead of paying for them with borrowed funds?
A. We historically borrowed money in Massachusetts to fund a lot of stuff that doesn’t have a 20- or 30-year shelf life. That’s a mistake.
(Springfield Republican, 11/12/14)

Q. Why do we need for a separate finance control board for the MBTA?
A. The current state transportation board meets just once a month and already has a huge portfolio of stuff.
(Westwood Press, 5/14/15)

Q. Are you planning to require more disclosure by health care providers and insurers about the prices they charge?
A. You can expect to see us get a lot more aggressive about the transparency stuff in 2016.
(Boston Globe 10/6/15)

Q. What does your administration plan to do to solve next year’s budget problems?
A. I want to see what the Legislature sends us with respect to the year-end supp for the last fiscal year, and the stuff that’s involved in that document that has to do with the fiscal year we’re in now before I comment on any of it.
Worcester Telegram and Gazette, 10/20/15

Q. Tell us more about your proposals to give cities and towns control in granting liquor licenses.
A. Some of this stuff should have been done 10, 20, 30, 40, 50 years ago.
(Beverly Citizen, 12/10/15)

Q. Will your administration provide greater transparency than the current public records law requires?
A. We basically follow the law, and under the current law and every governor before us, the governor’s office is treated differently than the rest of the executive branch, If the law changes on this stuff, then we’ll change with the law.
(Boston Herald, 12/4/15)

Q. What are you looking forward to in the second year of your term?
A. Being more proactive and not just fixing the stuff that needed to get fixed.
(Lawrence Eagle Tribune, 12/3/15)

Q. Do you have a tendency to become too fixated on particular problems?
A. I tend to get kind of wrapped around the axle about stuff because that’s just the way I’m built.
(Boston Globe, 1/30/15)

Q. What’s your motto?
A. Let’s get stuff done.
(Boston Globe, 10/16/14)

Update, December 22: And one more.
Q. What’s surprising about your job as Governor?
A. Well, first of all the stuff that just kind of comes whistling in from left field.
(WGBH Public Radio, 12/17/15)

Conversations with Charlie About Stuff

(Researched and written while listening to one of the Governor’s blizzard addresses, in which he said “stuff” at least twice. Offered simply as evidence of his curious fondness for the word.)

Q. What’s it like to be involved in a modern political campaign?
A. Campaigns are about many things — slogans, phone calls, fund-raisers, retail campaigning, and more. But, in the end, they are also about acts of God — stuff that happens that no one can predict or control.
(Boston Globe, 9/22/14)

Q. How will you allocate responsibilities between yourself and Lieutenant Governor Polito?
A. Health care is probably going to land in my lap. A lot of development stuff will probably land in hers.
(Boston Globe, 1/30/15)

Q. Do you have a comment on the demonstrators who blocked Interstate 93?
A. These protesters will be dealt with swiftly and appropriately, but public protests are sort of what being an American is all about and I approve of the more peaceful stuff.
(Boston Globe, 1/24/15)

Q. What are your impressions of the Biomanufacturing Education and Training Center at Worcester Polytechnic Institute?
A. There is a lot of great stuff going on.
(Worcester Telegram, 1/10/15)

Q. Can you offer the press any information about how you plan to construct your public relations team?
A. I’m sure we’ll have a chance to look at all those issues at a more detailed level in the next couple of weeks. And hopefully you guys will all be there to follow us on all that stuff.
(Boston Herald, 1/8/15)

Q. What do you think of the idea of a corporate tax amnesty program to generate cash for state spending needs?
A. I think the best solution, of course, would be not to have to ever do this stuff, but over time things happen and using this as a vehicle to sort of clean up another backlog is not a bad idea.
(Metrowest Daily News, 12/10/14)

Q. Any progress in your negotiations with the Obama administration about increasing pay for primary care doctors under the Affordable Care Act?
A. Obviously the devil in a lot of this stuff — for them and us — is as we try to shake detail out over time.
(Boston Globe, 12/6/14)

Q. Do you favor funding some portion of our transportation and other needs out of the yearly operating budget instead of paying for them with borrowed funds?
A. We historically borrowed money in Massachusetts to fund a lot of stuff that doesn’t have a 20- or 30-year shelf life. That’s a mistake.
(Springfield Republican, 11/12/14)

Q. Do you have a tendency to become too fixated on particular problems?
A. I tend to get kind of wrapped around the axle about stuff because that’s just the way I’m built.
(Boston Globe, 1/30/15)

Q. How are storm preparations affecting your ability to move forward with a plan to close the budget deficit?
A. It certainly affects the timing on some of this stuff.
(Taunton Gazette, 1/28/15)

Q. What is your motto?
A. Let’s get stuff done.
(Boston Globe, 10/16/14)

Mandatory Minimum Jail Time In Drug Cases: Time For The Thirty Years’ War To Be Over

Fingers crossed, but it’s looking like the Legislature might be ready to think again about the wisdom (or folly) of the statutes it passed thirty-some years ago that require jail time of at least some minimum duration in drug cases.

Promising signs that reconsideration is underway: a special commission established in 2012 to study the state’s criminal justice system reported back in November with a recommendation that the Legislature eliminate mandatory minimum sentences for all drug offenses in Massachusetts. The Chief Justice of the state’s Supreme Judicial Court announced that the court system will be taking “a hard and honest look at how we sentence those convicted of crimes, with the goal of not only punishing and deterring criminal behavior, but also lowering recidivism by “treating the root of the problem behind many drug offenses — the problem of addiction.” And there’s always the bean-counter argument against mandatory minimums: the cost of housing an inmate now tops $47,000 per year.

The most encouraging signal may be coming from the our new Governor. Charlie Baker has said that he supports “repeal of mandatory minimum sentences as part of an overall strategy to rethink how those with substance abuse issues are treated.”

Baker’s support gives a Nixon-goes-to-China boost to the proposal that other Governors could not have provided. That’s because Charlie Baker was a key figure in the administration of Governor Bill Weld two decades ago. At that time, Weld was the state’s most resolute defender of mandatory incarceration laws. Even after a Globe spotlight series in 1995 demonstrated that most of the people sentenced under those laws were not the rich kingpins but lower level mules, first-time offenders and those too poor to have anything to offer in a plea bargain, and after it was pointed out that enforcement of the laws disproportionately affected racial minorities, he remained unmoved. “You hear the argument that mandatory minimums interfere with judges’ discretion. I say, ‘So what?'” he told the Massachusetts Police Association. So it helps to have the person whom Weld called the “soul” of his administration in the Corner Office now.

Not everybody was as enthusiastic as Governor Weld about mandatory minimum sentences back then. House Speaker Charlie Flaherty, for one, doubted their value. In 1995, Flaherty tried to capitalize on an opportunity for leverage that arose when Governor Weld requested $700 million from the legislature to build more jail cells (where are you going to put all those people serving mandatory minimums for drug crimes?). The House voted to give the Governor some of the money he was asking for, but only on the condition that state law be amended to give judges the discretion not to impose mandatory minimum jail sentences in drug cases if they stated in their reasons in writing. But, alas, the opportunity was lost when the Senate, siding with Weld, did not agree to restore discretion in sentencing to the judiciary.

So years later, yes, it’s great news that the topic of mandatory minimum sentences is up for discussion again. But it is hard not to think about what’s been lost while this ill-considered policy has been state law.

We’ve spent so much of money incarcerating people. A MassInc study estimates the cost at $35 to $90 million per year — money that was not available for other purposes. With policies like mandatory minimum sentences in place, it is hardly surprising that we spend 21 percent less on higher education these days than we spend on jails. Then there are collateral costs: former inmates have a harder time finding jobs, incarceration leads to higher rates of divorce, kids with parents in jail are more likely to enter the child welfare system. And grave issues of racial equity: the Supreme Judicial Court reports that in the most recent year of available data, 450 defendants received mandatory minimum sentences for drug offenses and three-quarters of those 450 defendants were members of racial and ethnic minorities.

Much has been lost. But we can stop the losses by calling an end to this disastrous thirty years’ war.

Charlie: You Can Help Barack Preserve the EITC!

Here’s an idea for Charlie Baker: Congress is now considering a bill that would make permanent many tax credits and deductions that are now only temporary. How about supporting President Obama’s threat to veto that legislation because it fails to extend expansions of the Earned Income Tax Credit program?

A quick recap: this tax bill was negotiated between House Republicans and the office of Democratic Senator Harry Reid (who will no longer be the Senate majority leader when the Republican majority takes over in January). The $440 billion worth of tax breaks that it would make permanent include some programs that are popular with Democrats as well as Republicans, such as the American Opportunity Tax Credit for higher education costs, but two thirds of the tax benefits in the bill would go to businesses. Last week, President Obama threatened to veto the bill because it does not give permanent status to expansions of certain tax provisions, including the Earned Income Tax Credit Program, that are important to low-income families with children. In a provocative display of candor, the Republican negotiators said that the exclusion of the Earned Income Tax Credit program from the bill was “payback” for the president’s executive order on immigration.

The EITC expansions at issue were put into place five years ago, as part of the economic stimulus bill to counter the Great Recession. They provide, for example, a higher credit for larger families (those with 3 or more children). The expansions are scheduled to expire in 2017, and if they do, the credit for these larger families will fall by more than $700 per year. According to the Center on Budget and Policy Priorities, allowing the expansions to expire will push a quarter-million Massachusetts residents into poverty or make them poorer.

Allowing these expansions to expire would affect not only the federal EITC program, but also the 25 state EITC programs that provide some portion (currently 15 percent in Massachusetts) of the taxpayer’s federal credit. Which is where the Governor-elect comes in. Baker’s campaign platform proposed to increase the state’s EITC program — a more specific anti-poverty agenda than anything his opponent offered. (It must be said, however, that Baker was most likely to talk up this idea when campaigning in urban areas and communities of color. In the rest of the state, one heard far less about this “carrot” of encouraging work and far more about the “stick” of welfare reform.)

Given the state’s current budgetary red ink, it will be challenging enough to deliver an increase in the state EITC program. If the federal EITC expansions expire, any state increase would go in part toward making up for those federal cuts. So maybe Governor-elect Baker will repeat, for the benefit of the Republicans in Congress, what he told the Globe the day after his election:

“I would hope that one of the lessons that some of the Republicans nationally would take from this race is that it’s a good idea to chase 100 percent of the vote and to make the case in as many forums and as many places as they possibly can.”

Send them back to the drawing board to include the EITC. How about it?

A Budget Fix That Dares Not Speak Its Name

There’s a hole in the state budget, and yesterday Governor Patrick announced his plan to plug it. He’s using authority he already has to order immediate cuts to Executive Branch agencies. These cuts will make up most of the $329 million shortfall. His proposal for the remainder of the problem, however, requires the approval of the Legislature, and to judge from the early returns, that approval is unlikely.

The Governor would like the Legislature to agree to cut the amount of money that goes from the state directly to cities and towns for municipal services like public safety, schools and libraries. That money, known as unrestricted local aid, is understandably popular with legislators. And among Republican lawmakers, it is safe to say, only tax cuts are a more popular policy idea than local aid spending.

As in: yesterday, Representative Brad Jones, the House minority leader, called Patrick’s plan to cut local aid a “non-starter,” and Governor-elect Charlie Baker said through a spokesperson that “Massachusetts cities and towns deserve a dependable source of funding for crucial projects. As the transition process continues, Gov.-elect Baker looks forward to developing a responsible budget that delivers the services the people of Massachusetts need and protects taxpayers.”

And then this morning, House Speaker Robert DeLeo announced that he, too, opposes any local aid cuts.

The Governor’s budget chief is defending the proposal as a “balanced and thoughtful approach,” and says the administration has no alternative solutions. So it looks like we are heading for a stalemate.

But wait. Part of the budget hole — about $70 million — is attributable to a very tiny reduction in the state income tax that will take effect next year under an automatic formula the legislature devised. The reduction of .05 percent (from 5.2 percent to 5.15 percent) will mean about $50 extra per year for a family with an income of $100,000 and much less for families of lesser means. A similar tiny cut (from 5.25 percent to 5.2 percent) happened last year — how many of us even noticed?

The Legislature could act to defer this income tax reduction, which would reduce the budget hole by $70 million and would preserve local aid funding — and more. And even though we are as far away from an election (and the possibility of voter retribution) as we will ever be, nobody appears even willing to mention this possibility. Not even the guy who once wanted to have an adult conversation about taxes.