Federal Nursing Home Enforcement System is Not Punitive: Setting the Record Straight Again

The Department of Health and Human Services' Inspector General recently reported that nearly one third-of nursing home residents suffered an adverse event or other harm during a stay in a Medicare-participating nursing home in August 2011, and that most of the adverse events or other harm were preventable and the result of problems in staffing.[1]  Despite evidence of poor quality of care, the nursing home industry continues calls for a "new examination" of the public oversight process, choosing to believe the oversight process, rather than the care itself, is the problem.[2]

Industry challenges to the federal oversight system are certainly not new.[3]  Nevertheless, in light of the industry's continued attacks on the regulatory system and its call for a new method of nursing facility oversight, it is time to set the record straight again: the regulatory system does not need a "new examination." Rather, it needs to be fully and effectively implemented.

Industry Claims

LeadingAge, the national trade association of not-for-profit nursing facilities, claims that the current enforcement system is punitive and does not serve its primary purpose of protecting residents and ensuring quality.  It proposes what it calls "an objective, third-party examination of the present federal-state nursing home oversight process."[4]  In support of its proposal, the trade association cites the Inspector General's March 2014 report about adverse events and harm, a series of reports by the Government Accountability Office (GAO) "issued over the past decade [that] have found that the present nursing home oversight process is inadequate to ensure quality care and is overwhelming for regulatory agencies to administer,"[5] and its own 2006 report, Broken and Beyond Repair.[6]  LeadingAge describes the regulatory system as "a punitive oversight process, built on fines and punishment"[7] and touts its own initiatives, notably Advancing Excellence in America's Nursing Homes and Quality First, as the solution to poor quality of care.

The Federal Regulatory System Is Not Punitive

The Inspector General's (IG's) recent report identifying extraordinarily poor care for Medicare residents does not support LeadingAge's thesis that the regulatory system is poorly designed and punitive.  Similarly, reports issued by the Government Accountability Office (GAO) offer no support for LeadingAge's claim.  Over the past decade, the IG and the GAO have uniformly reported that it is not the regulatory system itself that is the problem, but rather the implementation of the system, finding, specifically, that implementation has been too ineffectual, too timid, and too poorly used to make a difference.  Not even the reports cited by industry groups claim that the enforcement system has been fully implemented and nevertheless failed to improve care for residents.  GAO report titles graphically make this point: Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Commitment,[8] Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses,[9] Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents,[10] Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses in State and Federal Oversight of Quality of Care.[11]

In the preamble to the enforcement regulations published November 10, 1994, the Health Care Financing Administration (predecessor agency to the Centers for Medicare & Medicaid Services (CMS)) explained the purpose of the enforcement system created by the 1987 Nursing Home Reform Law:

[W]e do not accept the notion that the use of more severe remedies for more severe deficiencies in excessive.  There can be little question that the Congress was concerned about what it concluded was an unsatisfactory enforcement scheme prior to nursing home reform.  As a result, it wrote into the law a series of remedies that it expected to be used should circumstances at individual facilities warrant.  The driving force behind the legislation in this context was to provide the Secretary and the States with the authority to aggressively enforce the Act's new requirements in a way that would discourage facility noncompliance that the Congress believed to be widely evident between surveys, and thereby, to encourage lasting compliance.  The design of these enforcement rules provides for incrementally more severe remedies as cited noncompliance is more egregious.  We do not believe that an enforcement approach styled this way is harsh or excessive.[12]

Industry complaints about the new enforcement system mandated by the 1987 Nursing Home Reform Law began.

[In March 1999] the American Health Care Association (AHCA) stated publicly that deficiencies cited as causing harm to residents include “everything from canceling [a scheduled social] activity such as a painting class to giving a patient the wrong medication. . . . [T]he system needs to – and doesn't – distinguish between minor infractions and major problems."[13]

Senator Grassley (R, IA), then Chairman of the Senate Special Committee on Aging, asked AHCA to provide specific examples of inappropriately-cited deficiencies.  In May 1999, AHCA gave the Senator 10 examples.  Asked by Senator Grassley to evaluate the 10 examples "that AHCA selected as 'symptomatic of a regulatory system run amok,'"[14] the GAO found no evidence of "inappropriate regulatory actions" and concluded, "in each of the eight [out of 10] cases for which there was sufficient information for an objective assessment, we believe appropriate regulatory action was taken."[15] 

In 2003, the GAO suggested that the federal nursing home enforcement system had still not been effectively implemented.  William J. Scanlon, Ph.D., then Director, Health Financing and Public Health Issues, GAO, testified before the Senate Finance Committee in July 2003 about the most recent GAO report on nursing home quality and then stepped back to "offer some thoughts based upon my involvement in your efforts over the past six years."[16]  Discussing survey and certification, he said:

            Some may say the survey and enforcement processes have proven inadequate to ensure nursing home quality, given the reports of continuing deficiencies over the last 6 years.

            My perspective is different.  I do not believe we have adequately implemented the survey and enforcement process as envisioned in OBRA 1987, and further defined by HCFA.

            The execution of surveys and the enforcement actions that should follow them have been so lacking, we do not know how effective the process can be.[17]"  

A recent Center Alert provides further evidence of the current truth of the GAO's repeated findings and Dr. Scanlon's observations.  "Staffing Deficiencies in Nursing Facilities: Rarely Cited, Seldom Sanctioned"[18] showed that one of the three facilities cited with an immediate jeopardy deficiency (the highest level of federal deficiency in the survey and enforcement system) in 2013 and five of the ten facilities cited with an immediate jeopardy staffing deficiency in 2012 did not have a civil money penalty imposed as a result of the survey that cited the jeopardy-level staffing deficiency.  When the most serious deficiencies are not sanctioned, the claim that the regulatory system is punitive has no merit. 

Participation in Advancing Excellence Does Not Mean that a Nursing Facility Provides High Quality Care to Residents

Advancing Excellence for America's Nursing Homes is a voluntary campaign begun by the nursing home industry in September 2006.  The Center was skeptical from the beginning, seeing the campaign as the latest in a long line of voluntary, but ineffective, industry initiatives that promise, but fail, to improve quality of care and quality of life for residents.[19]

The Center has repeatedly shown that facilities providing poor care participate in Advancing Excellence to the same extent as other facilities.  In January 2012, the Center evaluated the facilities identified by CMS as Special Focus Facilities (SFFs) – the facilities providing the poorest care to residents.[20]  The Center looked specifically at the 150 facilities (less than 1% of the nursing facilities nationwide) that had been identified as either newly added to the SFF list or had not shown improvement as of December 15, 2011.  Of the 84 SFFs evaluated (24 newly-added SFFs and 60 SFFs that had not shown improvement), 36 SFFs (43%) were members of Advancing Excellence.[21] (The national rate of participation in Advancing Excellence in December 2011 was slightly higher, 50.2%.)

Recent analyses of poorly-performing nursing facilities show high rates of participation in Advancing Excellence.  The recent Staffing Deficiencies Alert cited above found that eight of the 13 facilities with an immediate jeopardy staffing deficiency (62%) are members of Advancing Excellence, demonstrating, again, that participation in the Campaign is not correlated with providing high quality care.  (The national rate of participation in Advancing Excellence in March 2014 was 61.7%).

Conclusion

Establishing standards of care that nursing facilities must meet in order to be eligible for Medicare and Medicaid reimbursement has little meaning if the standards of care are not effectively enforced.  For too long, nursing facilities have been reimbursed, regardless of the quality of care they provide.  It is time for CMS to enforce federal law effectively and to assure that facilities provide residents with the quality of care they need.