Nursing Home Staffing Levels: The Truth Has Percolated

For yers we have heard complaints from family members: The staffing levels are too low at nursing homes. Yet, the records showed that the mandated levels were being met. The mystery is now solved, and the truth shows gaming.

All it took was Medicare comparing payroll records with claimed staffing levels. The two did not match. The amount paid and the number of staff members claimed as on duty were just not the same.

As a result, Medicare has downgraded 1 in every 11 nursing homes (about 1,400) have been downgraded from their Medicare star levels (5 is highest and 1 is lowest. As a result, 1,387 nursing homes of the 15,616 skilled nursing facility have only one-star ratings. The downgrades came when the facilities could not verify their reported staffing levels with pay records or refused to provide the pay records. Some facilities have argued that they had managers working overtime to meet the standards for staffing. That kind of information is difficult to generate and is based on a he said/she said scenario. And there are few records on management participation.

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“I would suspect that some of the issues that we’re dealing with now and cause one apoplexy would have probably been swept under the carpet ten years ago. If you really want to run the business, you need to get involved in this level.”

The late Sergio Marchionne, former CEO of Chrysler. Mr. Marchionne was explaining to a Wall Street Journal reporter in 2010 why their interview was being interrupted for updates on a door-latch issue on a new version of the Chrysler Dodge Charger.
Mr. Marchionne had learned the “sweat the small stuff lesson” from living through the Chrysler van issues, recall, tragic accidents, and litigation.

What is happening on the frontlines of a business now is what will cause the headlines 10 years from now, Making sure employee issues, concerns, and information are on the CEO’s desk is not a bad idea. RIP, Mr. Marchionne, who died suddenly last week following shoulder surgery.

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“Just a Process Crime”

The Barometer hears this phrase over and over again. Certainly there are folks who have not been convicted of crimes who are still charged with crimes. The biggie is lying to the FBI. Most people mistakenly state that Martha Stewart went to prison for insider trading. She did not. She did not commit the crime of insider trading, i.e., securities fraud. She was convicted of lying about what she had done, which was take a tip from a broker who shared information about what another one of his clients was doing. Altering phone logs and asking the young fellow to stick with a story was Ms. Stewart’s process crime.

Michael Flynn, following a distinguished military career, was not charged with collusion, spying, or foolhardy contact with a foreign power. He was chargedwith and has entered a guilty plea to lying to the FBI (although the continual postponement of his sentencing and emerging details on the notes of federal agents in their interviews with him indicate that they were uncertain about whether he lied). Another process crime.

James A. Wolfe, a long-term Senate staffer with the Senate Intelligence Committee, had a three-year relationship with New York Times reporter, Ali Watkins. Using an encrypted message system, Mr. Wolfe had passed information to her and other reporters about the activities of the Senate Intelligence Committee, including information about those who had been issued subpoenas to appear before that committee. That same message system was used to communicate with three other reporters. When asked about his contacts with reporters, Mr. Wolfe was not forthcoming. He was not charged with spying, leaking, or foolhardy use of electronic messaging (not yet a crime, but you think folks would catch on about the whole electronic messaging body of risk) The FBI has charged him with lying in its interviews, and his trial is forthcoming. Another process crime.

Here’s a safety tip. As bumbling as the FBI may appear in current reports, should agents come calling, just face up to things and get a good lawyer or tell them the truth. Lying is still lying, and a process crime means that the individual was not yet ready to ‘fess up to something that may not have been a crime. Martha Stewart probably would have paid a $10,000 civil fine and moved along. Mr. Wolfe faced employment sanctions, but not a crime. He was disclosing subpoena information, not national intelligence.

A process crime means that you did not want to tell the story that is embarrassing, could cost you your job, or reputation. Those are some tough consequences to face, but they do not get your prosecuted for a crime, as long as the simple quality of forthrightness emerges. Process crimes still constitute a criminal record.

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SoFi’s Ex-CEO Has A New Company: Two Board Members Who Ousted Him Invested $17 Million

In September 2018, Mike Cagney was removed as CEO of Social Finance following questions about his sexual misconduct. The internal investigation found that Mr. Cagney was involved romantically with an employee despite his denials to the SoFi board that he was not involved with employees. Some years earlier, Mr. Cagney had promised the SoFi board that he would not have any further romantic involvements with employees after the board had learned of another romantic relationship.

Nonetheless, two SoFi board members have invested $17 million in Mr. Cageny’s new start-up, Figure. Mr. Cagney has also raised another $41 million for the company. Silicon Valley forgives easily and quickly. One wonders whether there was sufficient time and remorse for a turnaround. The board of Figure will find out.

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Sheldon Silver: Former Speaker of NY State Assembly Sentenced to 7 Years

And a $1.5 million fine. The former speaker was twice convicted of corruption charges, once following a reversal by a federal appellate court. At the heart of the charges and eventual conviction was Silver’s funneling of $500,000 in State Health Department research grants to a Columbia University professor in exchange for the professor referring cancer patients to a law firm. Mr. Sheldon then received part of the law firm’s fees for the lucrative cases. Under anyone’s definition of corruption, those actions qualify.

Mr. Silver was only worried about the following at his sentencing hearing, “I fear that I will continued to be ridiculed, shamed, by the stain that is upon me.” and “Everything I have accomplished has become a joke and a spectacle.”

No further comment.

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The Mess at USC

On the heels of the mess at Penn State, the mess at Michigan State, and the new mess at Ohio State, we have more developments in the mess at USC. Dr. George Tyndall, formerly a gynecologist at the student health center at USC, was sued (along with USC) by fifty more women who allege that Dr. Tyndall, sexually abused and harassed them. That brings the total number of women alleging misconduct by the doctor to over 200.

The timeline is emerging in bits and pieces, and it is a timeline that we have seen before at Penn State and Michigan State. Between 2000 and 2014, USC administrators received 8 complaints from young women about Dr. Tyndall’s lewd comments and behavior. In 2013, eight co-workers reported their concerns about Dr. Tyndall’s behavior to their supervisors. In 2016, USC placed Dr. Tyndall on leave while they conducted an internal investigation. That investigation concluded that Dr. Tyndall’s pelvic exams may have been inappropriate and that he made racially and sexually offensive comments to patients. Dr. Tyndall was permitted to retire in June 2017 under a separation agreement. All was quiet on this western front until the Los Angeles Times ran a story on the issues with Dr. Tyndall. In fact, things were so quiet that USC did not report Dr. Tyndall to the California Medical Board until after the LA Times called about the story as part of their investigation. Now the Medical Board and the Department of Education are also investigating.

The Barometer is often asked by board members and CEOs, “What are the red flags for ethical issues?” Very simple — if you receive a complaint, investigate. The complaints are the red flags. You need not wait for more complaints or a pattern — just investigate and then take action. Complaints are not something we process. Complaints are our guide to organizational missteps and misdeeds. In these university cases (and so many others), the failure to follow up on complaints resulted in scandals. Instead of dismissing a few complaints as the cranks and crackpots acting out, assume that they might have something and act accordingly.

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When Will Business Journalists and Tesla Shareholders Stop Pretending?

Tesla is a struggling company. That simple statement needed to be made, but no one seems willing to make it despite headlines such as “Tesla Squeezes Its Suppliers, and Investors Squint at Its Profit Plan.” Tesla cannot raise more money because its liquidity is -$2.27 billion. A year ago that number was $780 million. Tesla needs cash for its troubled production line. So, just ask for money back from your suppliers. The Barometer has found this financial tool to be a valuable one, to wit, “Dear Utility, The Jennings household is a tad short on cash this month, so we were wondering if you could send back our payment from June just to see us through August and then we can catch up on all that we owe you.” The Wimpy tool of financial management, “I will pay you on Tuesday for a hamburger today.” Or we could go with the old Henny Youngman joke: One man asked another man to loan him $10 until pay day. The potential lender asked the borrower, “When’s pay day?” The borrower responded, “How should I know? You’re the one who’s working?”

With Tesla, everyone should be asking, “When’s pay day?” And Musk would probably reply and get away with it, ‘How should I know? You are the ones doing the heavy lifting.” The company’s devotion to outer space travel and unrealistic autos needs to be subordinated to the reality of its finances. This company is struggling. Those who hold the $303 shares should be doing some serious study and perhaps some serious selling.

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When Will We Learn? The Ethical Issues in Posting Ourselves and Others

Olympic swimmer Ryan Lochte, he once of blue hair fame and fabricated gasoline station heists in Brazil, posted a video of himself in a Revival IV Lounge in Gainesville, FLA receiving an IV drip (hence the name of the joint). Getting vitamins via IV is perfectly legal. However, Olympic swimmers have a ban on certain IVs and this was one of them. Mr. Lochte has been banished from competition for one year. As one of the Barometer’s students once asked, in all seriousness, “Can it really be considered cheating if you do it in front of everyone?” Yes, yes it is still cheating.

Then we have the Uber and Lyft driver (working for both companies and making $350-$400 per night) who videotaped his passengers. Initially, he said it was for safety. But somewhere between original intent and outcome, the driver posted the livestream videos of his passengers on Twitch, selling subscriptions to this service. And all without passengers’ consent. The driver made $3,500 over the past five months from viewer subscriptions for the videos, and all of this was done also done without a stitch of consent of his passengers. Some of the comments posted on the site were vulgar and some summed it up quite nicely, “This is creepy.”

Uber and Lyft terminated the driver upon learning of the videos. Now all the driver has is his Twitch site. But, without the passenger videos, how can that survive?

Be careful what you post and what you comment. It all counts. And it can bus used against you.

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Being Judged By What Our Grandfathers Did

Walker Stapleton, who holds a Harvard MBA and has been Colorado’s state treasurer for two terms, is running for governor. His grandfather, Benjamin Stapleton, served a Denver’s mayor for five terms. However, Benjamin Stapleton was a member of the Ku Klux Klan. The Stapleton name is a, well, staple around Denver. However, activists have been working to remove the name from schools, parks, airports. Teachers who teach is a school with the Stapleton name have encouraged students to study Stapleton history and to participate in a movement to change the school’s name.

Mr. Stapleton is now facing press inquiries about his personal history. That is, his grandfather’s activities are being used as a proposed screening mechanism for voters. Mr. Stapleton has thus far refused to speak about his grandfather

The activities and legacy of the Ku Klux Klan were horrific. Shame on Benjamin Stapleton for being a part of that group. However, the sins of the grandfather should not be heaped upon his grandson.

There is one American value that is cherished – the ability to be judged on our own conduct and not be condemned because of our family name. To allow DNA to determine our futures is wrong, whether used for false, as opposed to meritorious advancement, or as a barrier to advancement. Still, the New York Times could not resist a full=page story on the Stapleton name, with this headline, “Liability for Republican in a Close Race: His Family Name.” Shame on that newspaper for even writing the story. Double shame for making it seem as if it is a legitimate or real voter concern.

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Missing the Cut by Two Strokes: A Story of Integrity

Emma Pister tells a story of exemplary integrity. Competing for one of five slots that would fine her in the state golf competition, a high school senior found herself experiencing the natural stress and pressure a game of golf with so much hanging in the balance would bring. On one whole, a shot missed the hold by two inches. Frustrated, she failed to take the time to line up the putt, and missed the hole again, by one-half inch. No one had seen the second miss. Yet, she reported yet another stroke for the half-inch miss. The same thing happened on another hole — a second double-miss, but she reported those strokes as well.

She regained her composure enough to have much success on the back nine. Still, when the final scores posted, she was #6, just two strokes higher than #5. You know what they say, ethics and integrity are what you do no matter how much is at stake and even when no one is watching or would know.

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The Little Noticed Part of the OIG Report on the Clinton E-Mail Investigation: Peter Kadzik

Thanks to Eric Felten, I turned to p. 461 of the OIG Report on the FBI/Justice investigation of the Clinton e-mail issues and found one Peter Kadzik. Mr. Kadzik did not recuse himself from the investigation despite several issues outlined in the report:

Mr. Kadzik served as Marc Rich’s attorney in the successful effort to get Mr. Rich pardoned from his federal crimes. President Clinton pardoned Mr. Rich.

In March 2015, Mr. Kadzik tried to get his son a job with the Clinton campaign.

Mr. Kadzik’s son did not et a job, so Mr. Kadzik then ent nonpublic Department of Justice information about then-candidate Clinton’s-mail to John Podesta, Mrs. Clinton’s campaign honcho, John Podesta.

There are a great many quids and quos in this actions. Imagine not being required to recuse yourself if you were close friends with a Hillary Clinton staffer (well, 2 actually). Imagine not being required to recuse yourself for passing along OR (opposition research) to the Clinton campaign. Imagine not recusing yourself for passing along non-coverage exemption.

The OIG report concludes:

Kadzik did not self-identify a potential appearance of a conflict under the “other circumstances” provision based on his, his wife’s, and his son’s efforts to get his son a job with the Clinton campaign.
We believe that these circumstances would cause a reasonable person to question Kadzik’s impartiality in Clinton-related matters during the time RS was seeking employment with the Clinton campaign. We therefore concluded that under the “other circumstances” provision of Section 502(a)(2), Kadzik should have either recused himself from Clinton-related matters beginning in April 2015, when he initiated employment solicitations to the Clinton campaign, until RS [Kadzik’s son] was no longer seeking employment with the campaign, or disclosed these circumstances to the appropriate Department ethics officer so that the Department could have considered whether Kadzik should be recused.

Although Kadzik did not commit an ethics violation by failing to recuse himself under Section 502(a)(2), we found that his failure to recognize the appearance of a conflict by participating in Clinton-related matters when he, his wife, and his son were trying to get his son a job with the Clinton campaign demonstrated poor judgment.

Lessons? Most people fail to see their conflicts as conflicts. That is because they are conflicted. That’s why we should ask — if you are asking the people whose lives you could affect adversely (in this case with criminal charges) for something that will benefit you or a family member, you might want to run it by a soul here or there.

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Now That’s A Conflict: The Sordid Tale of John Schiller and Energy XXI

John Schiller, former CEO of Energy XXI Ltd., has settled an SEC investigation by paying $180,000 and agreeing to a five-year ban as a corporate officer of a public company. The SEC, in announcing the settlement, alleged that Mr. Schiller had failed to disclose that he traded business contracts in exchange for personal loans from contractors and a portfolio manager at a fund that held 8.4% of Energy XXI’s stock. The SEC summary also alleged that Mr. Schiller pledged $23 million against his shares in Energy XXI to fund “an extravagant lifestyle.” If that was insufficient, the allegations also indicate that Energy XXI failed to disclose “at least” $1 million in perks and personal expenses for Mr. Schiller.

Energy XXI declared bankruptcy in April 2016. The board ousted Mr. Schiller in February 2017. Better late than never.

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Truth Percolates: Nursing Home Pay Records Reveal Low Staffing Levels

The families of nursing home residents, many of the homes rated quite high by the federal government, had long complained that staffing levels were inadequate. Residents were not being turned to prevent bedsores. Baths were being skipped. Medications missed. But, the nursing home administartors insisted that the staffing levels were just fine.

Enter a simple wage study. The federal government took a look at the pay records for the nursing homes. If you want the truth on staffing levels, you look at the daily payroll records. Kaiser Health News took a look at the records from 14,000 facilities. Staffing levels were dangerously low, especially on the weekends. The ratings were based on the staffing levels that the facilities self-reported. It turns out that the data were not correct. That data differed from the payroll data.

There is almost always a means for checking self-reported data. On safety, check worker’s compensation claims to verify reported injuries and lost work days. With staffing, check payroll, particularly when there are mandated staff-to-patient ratios. On claims of earnings, check the cash. The cross-checks are where truth percolates.

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Temple Business School Submitted False Numbers for Rankings of Its Online MBA Program

Temple University hired the Jones Day law firm to conduct an investigation of the school’s Fox Business School. The investigation concluded that under the leadership of the dean of Fox false information had been sent to at least one of the rankings organization. Temple’s Fox had held the number one slot in the U.S. News & World Report rankings for its online MBA programs. Temple self-reported the problems to the rankings services and fired Dean Moshe Porat.

Pennsylvania’s State Attorney general announced its own investigation into whether Temple broke any laws in its advertisements, which touted the rankings. U.S. News & World Report revised its published rankings to list Temple as “unranked,” and has asked Temple for additional information in order to determine whether information for other colleges at Temple and for Temple itself in order to determine whether rankings beyond the Fox Business School are accurate.

Claremont-McKenna experienced the same issue several years back. Calling all deans and presidents – check your data that was submitted for rankings. Figures don’t lie, but liars do figure.

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