SNF - Secret Survey

Deregulating public oversight of nursing facilities and relying on voluntary quality improvement programs have been a priority for the nursing home industry for many years. This year is no different. In a secret Issue Brief[1] being circulated on Capitol Hill, but not included with other Issue Briefs on its website, the American Health Care Association (AHCA), the trade association of for-profit nursing facilities, is asking Congress to turn back the clock on nursing home residents. AHCA wants to repeal the current statutory requirement for annual surveys of nursing facilities and to go back to the Reagan Administration's 1982 proposal for less-than-annual surveys, undermining years of work toward greater facility accountability.

In proposed revisions to the survey and enforcement provisions of the Nursing Home Reform Law enacted by Congress in 1987, AHCA asks that nursing facilities in the "Top Tier" have on-site surveys only every three years, at statewide intervals not exceeding 39 months. [See AHCA, "Proposed Legislation; Nursing Home Survey Reform" (Issue Brief, undated).] AHCA does not define "Top Tier" facilities, does not describe how they would be selected, and does not identify how many facilities would avoid annual surveys under its proposal. Top Tier facilities would have "quarterly off-site reviews of acuity adjusted quality indicators" and, in the years when they did not have surveys, "a half day on-site review of quality of life and safety issues." No details are provided.

AHCA's secret legislative proposal also excludes, and may be intended to delete, long-standing statutory language that authorizes the imposition of various intermediate sanctions against facilities that fail to provide residents with the care and services they need. The proposal deletes enforcement requirements that have been in place for decades, such as the statutory mandate that more serious remedies be imposed for uncorrected or repeated deficiencies.

AHCA's legislative proposal revives the Reagan Administration's 1982 proposal to conduct nursing home surveys on a less-than-annual basis.[2] It was this proposal, among others, that led to two Congressionally-enacted moratoria preventing deregulation of the nursing home industry, the Institute of Medicine's 1986 study of nursing homes, Improving the Quality of Care in Nursing Homes, and, ultimately, enactment of the 1987 Nursing Home Reform Law.[3] Since 1987, Congress has required that all nursing facilities have annual standard surveys, conducted on a 9- to 15-month cycle, with a statewide average of 12 months.[4]

In support of its proposal, AHCA first argues that "a one size fits all approach" to surveys "fails to provide incentives and disincentives to encourage better performance by nursing homes." This argument ignores the fact that current law already mandates a flexible survey cycle, allowing less frequent surveys in facilities with fewer problems. The incentives that AHCA calls for to encourage better facility performance are already in place.

Next, AHCA argues that "variation within the survey process makes it extremely difficult to provide information that would allow for meaningful comparisons of individual homes within and across states." Yet current Federal law requires that surveyors use a uniform survey process throughout the country for all facilities participating in Medicare or Medicaid or both. AHCA fails to explain how, if its members are concerned with variation in the use of the uniform survey process, having different survey processes for "Top Tier" facilities and other facilities would make "meaningful comparisons" among facilities more likely. Rather, the exact opposite seems true; different survey processes would make "meaningful comparisons" less possible.

AHCA's argument concludes, "When all of this is considered in the context of a confluence of shrinking resources, increased availability of quality data and a public demand for more useful, timely and reliable data, there is the opportunity to streamline and improve the current survey system."

Shrinking survey resources are indeed a problem. The Government Accountability Office recently reported that the portion of the Medicare budget spent on quality assurance declined from 0.1% in fiscal year 2000 to 0.06% in fiscal year 2008[5] and that some categories of health care providers are surveyed only once every 10 years.[6] State survey agencies contend that no health care provider should go more than two or three years without a public survey. Restoring and substantially increasing survey budgets should be a priority for the federal government.

AHCA's reference to the availability of "quality data" is presumably a reference to the quality measures, which are self-reported information about residents, taken from residents' assessments. These measures were originally developed to help surveyors focus on problems that were likely to be found in a facility, not to indicate whether residents were receiving high quality of care. Although the industry uses these quality measures as a proxy for actual quality of care in its voluntary campaign, Advancing Excellence in America's Nursing Homes,[7] these self-reported measures are not a reliable substitute for an independent, on-site, and public evaluation of actual facility performance.

Additional proposals by AHCA require that surveyors "include all the positive aspects of care and facility life as well as the aspects of care that are performed less well" and rename the Statement of Deficiencies to "Report of Survey." AHCA proposes that the Department of Health and Human Services focus more attention on survey consistency. While consistency is important and has been required by the Reform Law for decades, accuracy is also important. A facility should not be allowed to challenge a deficiency simply because the facility next-door was not also cited for the same problem.

AHCA's proposals do not "streamline and improve" the survey and enforcement processes; they destroy them. Congress should reject industry proposals to deregulate the nursing home industry.

[1] The Issue Brief is reproduced at www.medicareadvocacy.org/SNF_09_04.16.AHCAamdtsurveycert.pdf

[2] 47 Federal Register 23,403 (May 27, 1982).

[3] 42 U.S.C. §§1395i-3(a)-(h), 1396r(a)-(h), Medicare and Medicaid respectively.

[4] 42 U.S.C. §§1395i-3(g)(2)(A)(iii)(I), 1396r(g)(2)(A)(iii)(I).

[5] Government Accountability Office, Medicare and Medicaid Participating Facilities; CMS Needs to Reexamine Its Approach for Funding State Oversight of Health Care Facilities, page 47, GAO-09-64 (Feb. 2009), http://www.gao.gov/new.items/d0964.pdf.

[6] Id. 5.

[7] http://nhqualitycampaign.org/. See Center for Medicare Advocacy, "The ‘New' Nursing Home Quality Campaign: Déjà vu All Over Again" (Weekly Alert, Sep. 21, 2006), http://medicareadvocacy.org/SNF_QualityCampaign.htm.