For decades, the nursing home industry has proposed relaxing the requirement for annual surveys at nursing facilities. Industry representatives argue that surveyors should excuse “good” facilities from annual surveys and focus their attention on poorly-performing facilities. The argument’s superficial appeal fails with scrutiny.
First, how would we identify “good” facilities? As the Government Accountability Office (GAO) recently reported, and others have confirmed, serious quality of care problems occur in so-called good facilities, undercutting claims that good facilities are clearly identifiable and could safely be exempted from annual surveys. Second, federal law already supports appropriate flexibility in the survey process, giving states clear authority to focus more attention on the poorest-performing facilities and less on better-performing facilities.
Quality Problems Exist In All Categories of Nursing Facilities and Are Under-Reported
In June 2019, the GAO reported that in the five-year period 2013 through 2017, abuse deficiencies at nursing facilities more than doubled (from 430 in 2013 to 875 in 2017).  The largest increase in deficiencies occurred in the two most serious categories of deficiencies, actual harm and immediate jeopardy (as fewer than 5% of deficiencies nationwide are classified). The GAO found that more than 10% of nursing facilities classified as five-star facilities (the highest rating) were cited with one or more abuse deficiencies in the five-year period. Moreover, stakeholder groups in five states consulted by the GAO – Adult Protective Services, law enforcement, Medicaid Fraud Control Units, ombudsmen, and nursing home administrators and clinical staff – described “underreporting of abuse” as one of the challenges underlying the problem of abuse in nursing homes. In short, the GAO found that abuse deficiencies are increasing, even in so-called better facilities, and that abuse is still under-reported.
The HHS Office of Inspector General (OIG) also recently reported that nursing facilities under-report abuse. Analyzing hospital emergency room claims data for 580 diagnosis codes for calendar year 2016, OIG estimated that 20% of the incidents reflect potential abuse, neglect, or injury of unknown origin. OIG’s review of a sample of 256 claims involving nursing home residents found that skilled nursing facilities failed to report more than 84% of incidents involving potential abuse to the state survey agency, as required by federal law.
The GAO’s and OIG’s findings about the ongoing problem of abuse in nursing facilities are consistent with an analysis of performance measurement by four leading researchers in the nursing home field. More than 12 years ago, Charles Phillips, Catherine Hawes, Trudy Lieberman, and Mary Jane Koren reported the multiple dimensions of quality in nursing facilities and the lack of correlation among them. They found that a facility may perform well on one indicator of quality but poorly on another. As a result, identifying the “best” facilities overall is not possible. For example, as they were considering their recommendations on performance measurement, the New York State Attorney General began an investigation of a facility where cameras placed by his office captured “graphic images of poor care, neglect, and abuse.” The facility had not been considered a poor performer prior to the Attorney General’s investigation. Concluding that performance measurement models are better at predicting poor quality than excellent quality, the researchers recommended that public reporting systems be used for only the limited purpose of identifying the poorest performers. The systems cannot reliably identify the “best” facilities.
With nursing facilities increasing their staffing for surveys; nursing home quality rapidly changing with changes in ownership, management, and key staff; and the GAO’s repeatedly reporting since the Clinton Administration, more than 20 years ago, that surveys under-report and under-code care deficiencies, the government is not able to identify facilities that could safely be exempted from an annual survey.
The Federal Survey Process Already Includes Flexibility
The 1987 Nursing Home Reform Law authorizes state survey agencies to tailor the timing of their surveys, and survey team composition, to the expected quality of care provided by facilities. Federal law requires states to conduct standard surveys on a nine to 15-month survey cycle, with a 12-month statewide average. This statutory flexibility encourages states to conduct surveys more frequently at facilities with anticipated quality of care problems and less frequently at facilities with fewer problems.
The Reform Law also authorizes states to use multidisciplinary survey teams as well as specialized teams, with “an attorney, an auditor, and appropriate health care professionals.” From data mining and ombuds feedback prior to a survey, states should already be tailoring survey teams to the problems that are anticipated in a facility. They should be sending smaller survey teams for shorter periods of time to facilities with fewer anticipated problems and larger teams for longer periods of time to problem facilities as well as identifying when to include specialized surveyors on a survey team.
Proposals to conduct less than annual surveys at nursing facilities hark back to the Reagan Administration’s 1982 proposal to conduct nursing home surveys on a less-than annual basis. This proposal, among others, led to two Congressionally-enacted legislative 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 Reform Law. Let’s not go back to 1982 proposals.
Surveys are conducted to protect residents and to ensure that all residents receive the quality of care that the Nursing Home Reform Law promises. Overwhelming evidence of continuing problems in quality of care supports the need for at least annual surveys at all facilities.
August 8, 2019 – T. Edelman
 The Center for Medicare Advocacy has written about industry proposals over the years. “Federal Nursing Home Enforcement System is Not Punitive: Setting the Record Straight Again” (CMA Alert, May 8, 2014), https://www.medicareadvocacy.org/federal-nursing-home-enforcement-system-is-not-punitive-setting-the-record-straight-again/ (discussing the trade association of not-for-profit nursing facilities, LeadingAge, and its 2014 policy statement (“2014 Quality in Nursing Home Care”) and 2008 report (Broken and Beyond Repair), neither still available on its website, criticizing the enforcement system as punitive and calling for a reevaluation of the survey and enforcement systems); “Back to the Future: Nursing Home Industry Makes Secret Survey and Enforcement Proposals to Congress” (CMA Alert, Apr. 16, 2009), https://www.medicareadvocacy.org/old-site/Print/2009/SNF_09_04.16.SecretSurvey.htm (reporting the trade association of for-profit facilities, American Health Care Association, calling for on-site survey of “Top Tier” nursing facilities every three years, at statewide intervals not exceeding 39 months).
 GAO, Nursing Homes: Improved Oversight Needed to Better Protect Residents from Abuse, GAO-19-433 (Jun. 2019), https://www.gao.gov/assets/700/699721.pdf.
 Id. 24.
 Id. 32.
 HHS Inspector General, Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated, A-01-16-00509 (Jun. 2019), https://oig.hhs.gov/oas/reports/region1/11600509.pdf.
 Charles D. Phillips, Catherine Hawes, Trudy Lieberman, and Mary Jane Koren, “Where should Momma go? Current nursing home performance measurement strategies and a less ambitious approach,” BMC Health Services Research 2007, 7:93 (Jun. 2007), https://bmchealthservres.biomedcentral.com/track/pdf/10.1186/1472-6963-7-93.
 Fangli Geng, David G. Stevenson, and David C. Grabowski, “Daily Nursing Home Staffing Levels Highly Variable, Often Below CMS Expectations,” Health Affairs 38, No. 7 (Jul. 2019).
 https://www.gao.gov/search?rows=10&now_sort=score+desc&page_name=main&q=Nursing+homes, including, for example, California Nursing Homes: Federal and State Oversight Inadequate to Protect Residents in Homes with Serious Care Violations, T-HEHS-98-219 (Jul. 1998), https://www.gao.gov/assets/110/107566.pdf; Nursing Homes: Many Shortcomings Exist in Efforts to Protect Residents from Abuse , GAO-02-448T (Mar. 2002), https://www.gao.gov/assets/110/109131.pdf; Nursing Homes: Despite Increased Oversight, Challenges Remain in Ensuring High-Quality Care and Resident Safety , GAO-06-117 (Dec. 2005), https://www.gao.gov/assets/250/248869.pdf; Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents, GAO-07-241 (Mar. 2007), https://www.gao.gov/assets/260/258016.pdf; Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses, GAO-08-517 (May 2008), https://www.gao.gov/assets/280/275154.pdf; Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Commitment, GAO-10-70 (Nov. 2009), https://www.gao.gov/assets/300/298953.pdf; Nursing Home Quality: CMS Should Continue to Improve Data and Oversight, GAO-16-33 (Oct. 2015) , https://www.gao.gov/assets/680/673480.pdf; Management Report: CMS Needs to Address Gaps in Federal Oversight of Nursing Home Abuse Investigations That Persisted in Oregon for at Least 15 Years, GAO-19-313R (Apr. 2019), https://www.gao.gov/assets/700/698539.pdf.
 42 U.S.C. §§1395i-3(g)(2)(A)(iii)(I), 1396r(g)(2)(A)(iii)(I), Medicare and Medicaid, respectively.
 42 U.S.C. §§1395i-3(g)(2)(E)(i), 1396r(G)(2)(E)(i).
 42 U.S.C. §§1395i-3(g)(4), 1396r(g)(4).
 47 Fed. Reg. 23403 (May 27, 1982).