Kentucky Scandal Raises Questions About Integrity Of Nursing Home Inspection Process

Did Kentucky Governor Paul Patton direct nursing home regulators to take it easy on a nursing home while he had an affair with its owner, then sic them on the home when the affair ended? That’s one of the key issues being raised in a rapidly-evolving scandal that began breaking on September 18th, 2002, when Clinton, Kentucky Birchtree Healthcare nursing home owner Tina Conner alleged that her former lover was at the root of her facility’s imminent closure.

In the initial television interview that broke the story, Conner said she responded to the Governor’s sexual invitation in part because she believed he could help her home: “Obviously he controls the Medicaid program, licensure and regulation - obviously he’s a powerful man and a person would honestly assume they would gather some of the power.” She went on to explain that she would call the Governor if her nursing home was having problems with state regulators, but that when she made clear to the Governor that she had ended the affair, “the harassment by the state began.” In a December 2001 survey, 163 pages of deficiencies were found, including six deficiencies classified as “immediate jeopardy.”

Interestingly, in the initial television interview Conner suggested that although she broke off contact with the Governor in October of 2001, she spoke to him after the inspection. “I called him at a certain point and said what’s going on? And he said we’ve done all we can. I’ve intercepted for you many times. And these are his words: I believe the bureaucrats are upset because I’ve gone over their heads so many times. So they’ve said, can I swear? F### you Paul Patton, we’ll show you. So I’ve done all I can.”

Patton initially denied the affair for several days, then admitted it. He has continually maintained that he did not influence nursing home regulators about Conner’s facility. However, many investigations have been launched. Conner told the Today show that she was expecting to meet with FBI agents on September 30th.

State Attorney General Ben Chandler - who expects to run for governor himself next year - has announced that his office is investigating whether any laws were broken.

The state’s Executive Branch Ethics Commission will also be conducting an investigation of the allegations, which have also been leveled in a lawsuit Conner filed against Patton and the state of Kentucky alleging sexual harassment, retaliation and intentional infliction of emotional distress. The Commission is expected to also look into a second allegation, that Patton also intervened to get a construction business owned by Conner designated as a disadvantaged business enterprise. That allegation was made by two former workers of the Office of Minority Affairs. Although the Governor had appointed Conner to the state’s Institute on Aging and to the board of the Kentucky Lottery Corporation, it has not been reported whether these appointments are under scrutiny, as well. The ethics commission is empowered only to level a $5,000 fine and issue a public reprimand.

At the Governor’s request, Cabinet for Health Services Secretary Marcia Morgan conducted an internal review of that office’s actions with regard to Conner’s nursing home, “and our records show that the Cabinet acted responsibility and fairly toward Birchtree Healthcare. At no time was any improper influence brought to bear on the Cabinet’s actions either positively or negatively.” Morgan reportedly is welcoming all of the investigations into her agency.

A lengthy “Birchtree Litigation Chronology” issued by the Cabinet shows that the state conducted a “standard Medicaid/Medicare survey and state health facility licensure survey on December 26 through December 28, 2001,” at which time the 163 pages of deficiencies were found. Subsequent re-inspections were held on January 22, April 9-11, and June 27-28. Each re-inspection found that Birchtree had “not regained substantial compliance.” Since “mandatory termination [from the Medicare and Medicaid programs] occurs if the facility has not regained substantial compliance within six months of the visit that first identified non-compliance,” the provider agreement was terminated on June 28, 2002. The chronology does not include the results of any inspections conducted before December 2001, although it does review how and when reimbursement rates for the facility have been adjusted over the past eight years.

Birchtree did not appeal any of the findings or sanctions until after the third and final survey in June, although it did file a civil complaint against the Cabinet for Health Services and several others, which reportedly did not address “the merits of the underlying non-compliance.” At no point has Birchtree submitted a reasonable assurance plan laying out how the facility planned to achieve and maintain compliance with federal certification laws, a necessary step to becoming recertified. However, Conner appealed to other politicians, including State Representative Charles Geveden and Marshall County Judge-Executive Mike Miller, to intervene with regulators. Miller, a close friend of Patton, told an Associated Press reporter, “I made a call to the governor’s office but was told that the violations were major, and that the problems could be resolved if she would just cooperate with the regulators.”

Birchtree filed for bankruptcy the same week the allegations against the Governor were made, and is now facing foreclosure by the bank. On September 19th, nursing home inspectors reported that Conner’s attorney had told cabinet attorneys that Birchtree had only enough cash to operate for eight days. On the 27th it was reported that only twelve residents remained in the home.

The scandal has already affected Governor Patton’s future. Although he has said he will not resign, he is facing a term limit. He renounced his expected run for the Senate in 2004 a few days after the scandal broke, in order to concentrate on his marriage. He continues in his position as chairman of the National Governors Association.

Conner, who recently divorced, has reached out in other directions. She told the Today show that she has consulted with an aide to Gennifer Flowers “to find out where she had received her legal advice, what this process was like for her, what she felt like now, how her life was now at this time.”

Because this scandal has the potential to affect the public’s perception of the fairness and accuracy of the nursing home regulatory system, AAR will continue to report on developments as they occur.