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Examining Federal Efforts to Ensure Quality of Care and Resident Safety in Nursing Homes

House Committee on Energy and Commerce Subcommittee on Oversight and Investigations Hearing

September 6, 2018

Statement of the Center for Medicare Advocacy

The Center for Medicare Advocacy thanks the Committee for holding this important hearing on nursing home quality.  Both the Government Accountability Office and the HHS Office of Inspector General have issued many reports in the last two decades about the poor care that many residents receive.  Congressional oversight and legislative action are critically needed.

The Nursing Home Reform Law (1987) sets the standards of care for all skilled nursing facilities and nursing facilities in the country that choose to receive reimbursement under the Medicare and Medicaid programs for providing care to residents.  The Law requires facilities to provide each resident with all of the care and services that are necessary for the resident to attain and maintain “the highest practicable physical, mental, and psychosocial wellbeing.”  Nearly every facility in the country voluntarily participates in both federal payments and is governed by these outcome-oriented, resident-focused standards.

Unfortunately, the federal standards for quality of care and quality of life are not meaningfully enforced.  As a matter of policy, the Centers for Medicare & Medicaid Services (CMS) imposes financial sanctions only when it calls facilities’ noncompliance either “actual harm” or “immediate jeopardy,” terms that are assigned to less than 5% of deficiencies nationwide.  Most noncompliance is called “no harm” and is essentially ignored by the regulatory system, even as facilities’ noncompliance actually endangers and harms residents.  (See attached Elder Justice: What “No Harm” Really Means for Residents, Vol. 1, Issue 8, pages 5-8.)

Non-enforcement of federal standards of care is highlighted by the treatment of Special Focus Facilities (SFFs), the small handful of facilities in each state that are identified as having more deficiencies than average, and more serious deficiencies, over an extended period of time.  The Center for Medicare Advocacy recently looked at the SFFs that had been identified as SFFs as of June 21, 2018 and July 19, 2018.  Although the 18 newly-identified SFFs were cited with the highest level of deficiencies (66 jeopardy deficiencies and 23 harm deficiencies since 2016), CMS imposed few and small civil money penalties (CMPs) against them.  Only 12 of the 18 facilities

had any CMPs imposed over the prior three years and the CMPs for these 12 facilities averaged only $27,562 per facility per year over the three-year period.  (See attached Center report, Special Focus Facilities: Poor Care for Residents, Limited Enforcement Consequences for Residents, Jul. 27, 2018, pages 9-16.)

The Administration has recently taken steps to reduce CMPs going forward.  Among many changes that reduce enforcement, CMS has shifted from per day CMPs (that reflect the duration of a facility’s noncompliance) to per instance CMPs (that are one-time fines that cannot exceed approximately $20,000).  Already minimal enforcement for the poorest quality facilities is declining even further, as federal enforcement data document a dramatic shift to per instance CMPs.  (See attached CMS’s Civil Money Penalty Reports for 2016 and 2018, pages 17-18.)

Another key cause of poor quality of care and quality of life is the virtually non-existent oversight, at both the federal and state levels, of who owns and manages facilities.  The issue came vividly and painfully into public consciousness last Spring, when Skyline/Cottonwood, a New Jersey-based company, imploded.  Since 2015, Skyline had assumed management of more than 100 nursing facilities in between six and eight states.  Between late March and late April 2018, Skyline/Cottonwood had stopped paying many of its workers and vendors and the company collapsed.  The states where Skyline owned or managed facilities rushed to court to get authority to take over the facilities, actions that were necessary to assure that residents would continue to receive food, medicine, and care.  How did this catastrophe happen?  How was an unknown company, with an increasingly poor record, able to take over so many facilities in such a short period of time?  States and the federal government have the duty and responsibility to assure that owners and managers are competent to provide care, but they appear to approve changes in ownership and management without meaningful review. 

Skyline is the most recent example of failed oversight of owners and managers, but it is not the only example.  In 2015, another company with facilities in several Midwestern states collapsed.  Its owner had started a new company, Deseret Health Group, in 2006 and repeated the pattern he established in California 20 years earlier: poor care for residents, bankruptcy, and abandonment of the nursing facilities and their residents, forcing states to go to court to take over the facilities.  How was this owner, with a criminal record, allowed to begin a new nursing home company and get its facilities licensed by the states and certified for Medicare and Medicaid?  (See attached article, “Buying and Selling Nursing Homes: Who’s Looking Out for the Residents?” CMA Alert, May 23, 2018, pages 19-21.)

On September 1, 2018, the Boston Globe reported that the New Jersey-based Synergy Health Centers started buying nursing facilities in Massachusetts in late 2012, although the company had no record of owning facilities before.  It continued to buy facilities and get state licenses and federal certification for Medicare and Medicaid for its facilities, despite increasing reports of health and safety deficiencies.  Now, eight of its ten Massachusetts facilities are under court-ordered receivership, two of its facilities are Massachusetts’ only SFFs, and the Attorney General is investigating the company’s failure to pay its employees’ health insurance premiums, despite deducting premiums from their paychecks.  Kay Lazar, “Troubled Massachusetts nursing home chain in ‘dire’ straits,” Sep. 1, 2018, https://www.bostonglobe.com/metro/2018/08/31/troubled-massachusetts-nursing-home-chain-dire-straits-court-monitor-warns/WtywMujnoo7Fy2qYdlvdxL/story.html.

Nursing facilities report that quality of care is improving, pointing to the quality measures reported on Nursing Home Compare.  However, these measures are self-reported and unaudited by CMS.  The New York Times reported in 2014 that nursing facilities game the federal rating system and report resident assessment information that gives them high scores in quality measures.  Katie Thomas, “Medicare Star Ratings Allow Nursing Homes to Game the System,” The New York Times (Aug. 14, 2014), https://www.nytimes.com/2014/08/25/business/medicare-star-ratings-allow-nursing-homes-to-game-the-system.html

The practice of gaming continues.  Last month, the Center found that 13 of the 33 SFFs (39%) on CMS’s July 19, 2018 list of SFFs that “have not improved” had five stars, CMS’s highest rating, in their self-reported quality measures.  Not only is it highly unlikely that these SFFs that “have not improved” provided good care, but the self-reported measures also boosted the facilities’ overall scores on Nursing Home Compare from one star to two stars, making them appear to provide better care than they actually provided.  (See CMA Alert on report, “Special Focus Nursing Facilities that ‘Have Not Improved:’ Poor Care for Residents, Overall Ratings Artificially Boosted by 5-Star Ratings in Self-Reported Quality Measures,” Aug. 15, 2018, page 22.).

Without question, the single biggest obstacle to good care is inadequate nurse staffing levels, both professional nurses (registered nurses, licensed practical nurses, and licensed vocational nurses) and paraprofessional nurses (certified nurse assistants).  Nearly 70% of facilities had overstated their staffing levels for many years, on average by 12%, when Nursing Home Compare posted self-reported staffing data, as The New York Times and Kaiser Health News reported after CMS shifted this Spring from self-reported data to a payroll-based system for reporting nurse staffing.  Jordan Rau, “‘It’s Almost Like a Ghost Town.’  Most Nursing Homes Overstated Staffing for Years,” July 7, 2018, https://www.nytimes.com/2018/07/07/health/nursing-homes-staffing-medicare.html.  While the new payroll-based system provides more accurate staffing information, the inadequate nurse staffing levels, now clearly documented, cry out for meaningful, enforceable federal legislation to improve staffing in nursing facilities.

Thank you, again, for holding this hearing.  The Center for Medicare Advocacy stands ready to assist the Committee as it moves forward in its oversight of the nursing home industry.

The Center for Medicare Advocacy (Center) is a national, private, non-profit law organization, founded in 1986, that provides education, analysis, advocacy, and legal assistance to assist people nationwide, primarily older people and people with disabilities, to obtain necessary health care, therapy, and Medicare.  The Center focuses on the needs of Medicare beneficiaries, people with chronic conditions, and those in need of long-term care and provides training regarding Medicare and health care rights throughout the country.  It advocates on behalf of beneficiaries in administrative and legislative forums, and serves as legal counsel in litigation of importance to Medicare beneficiaries and others seeking health coverage.

See attachments and download the statement at: https://www.medicareadvocacy.org/wp-content/uploads/2018/09/Centers-Statement-on-Nursing-Home-Hearing.pdf

Sep. 6, 2018
Toby S. Edelman
Senior Policy Attorney
Center for Medicare Advocacy
tedelman@MedicareAdvocacy.org

Dara Valanejad
Policy Attorney
Center for Medicare Advocacy
Long Term Care Community Coalition
dvalanejad@MedicareAdvocacy.org

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