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In cooperation with states, the Centers for Medicare & Medicaid Services (CMS) identifies a subset of nursing facilities, generally one to two facilities per state, that are among the most poorly performing facilities in the country.  These nursing facilities, which CMS calls Special Focus Facilities (SFFs), have “more problems” than other facilities, “more serious problems” than other facilities, and “A pattern of serious problems that has persisted over a long period of time” (i.e., the prior three years).[1]  CMS requires states to conduct surveys at SFFs twice as often as at other facilities and to impose more stringent enforcement actions “the longer the problems persist.”  Within 18-24 months of a facility’s designation as an SFF, CMS generally expects that the facility will either improve and graduate or be terminated from participating in the Medicare and Medicaid programs.  Each month, CMS identifies five categories of SFFs: newly-designated SFFs, SFFs that have not improved, SFFs that have improved, SFFs that have graduated, and SFFs that are no longer participating in the federal payment programs.

As demonstrated below, CMS has not followed through on these requirements for SFFs.  CMS is not imposing serious enforcement actions against SFFs that it cites with actual harm or immediate jeopardy deficiencies, or both.  To the contrary, CMS is not imposing any sanctions at all or is imposing only small financial penalties, averaging less than $20,000, against SFFs that it finds have not improved.

The Center for Medicare Advocacy’s Evaluation

On February 5-7, 2019, the Center looked at CMS’s most recent list (dated January 19, 2019) of 37 SFFs that CMS identified as not having improved.  CMS had originally designated these facilities as SFFs between five and 30 months earlier.  The Center looked at the federal website, Nursing Home Compare, to determine whether CMS imposed civil money penalties (CMPs) or denials of payment for new admissions (DPNAs), or both, against them.

Findings

The 37 SFFs that had not improved had few enforcement actions taken against them and these actions were limited:

  • 28 of the 37 SFFs were cited with actual harm or immediate jeopardy deficiencies in 2018.
  • 14 of the 28 SFFs that were cited with harm or jeopardy deficiencies, or both, in 2018 did not have CMPs or DPNAs imposed for deficiencies cited in 2018 (although CMPs had been imposed for deficiencies cited in earlier surveys).
  • Only 14 of the 28 SFFs that were cited with actual harm or jeopardy deficiencies, or both, in 2018 had either CMPs or DPNAs, or both, imposed against them.
    • Only 9 of the 28 SFFs that had not improved had CMPs imposed for actual harm or immediate jeopardy deficiencies that were cited in 2018. Only 1 CMP exceeded $100,000.  The remaining 8 CMPs ranged from $10,400 to $53,089 and averaged $19,616.50.  In all instances, the CMPs were considerably lower in 2018 than the CMPs imposed against these facilities in 2016 and 2017.
    • 3 of the 9 SFFs with CMPs also had DPNAs imposed against them.
    • 5 of the 28 SFFs had only DPNAs imposed against them. In 2016 or 2017, or both, these five SFFs had CMPs imposed against them.
  • 9 of the 37 SFFs were not cited with harm or jeopardy deficiencies in 2018.
    • 2 of these 9 SFFs had CMPs imposed.

14 SFFs that Had Not Improved Were Cited with Actual Harm and Immediate Jeopardy Deficiencies in 2018, but No CMPs or DPNAs Were Imposed

Facility State Months as SFF Deficiency (standard or complaint), type (IJ or harm), and date 2017 2016
Regalcare at Southport CT   5 C, 1 IJ, 1 harm (5/24) $6821 (8/22) $3,363 (8/29)
Glen Haven Home IA 23 S: 1 harm (9/13)   $47,166 (10/5)

$88,819 (4/28)

Wellspring Health & Rehabilitation of Cascadia ID 19 S: 1 harm (8/10) DPNA (10/27) $1,127,000 (7/19)

 

Aperion Care Bloomington IL 13 S: 1 IJ (10/1) $64,233 (7/16)

DPNA (7/16)

 
Vernon Health and Rehabilitation IN   9 C: 2 IJ (9/6)

S: 1 harm (5/16)

$39,158 (10/17)

$31,000 (8/14)

$13,239 (2/20)

 
Woodlawn Care and Rehab KS 15 C: 2 IJ (5/8) $24,080 (6/29)

$15,286 (1/9)

$37,863 (6/14)

DPNA (6/14)

Worcester Health Center MA   7 C: 1 harm (11/13) $54,846 (8/1) $3941 (10/19)
Red Wing Health Center MN 16 S: 4 harm (2/6)   $4622 (10/31)

$2000 (3/29)

Meridian Comm. Living Center MS 15 S: 3 IJ (6/22) $35,018 (1/15)

DPNA (1/15)

 
New Grove Manor NJ 10 S: 1 IJ (9/14)    
The Heights of Summerlin NV  8 S: 1 IJ (8/3)    
Portsmouth Health and Rehab OH 10 S: 2 harm (8/3)   $120,619 (11/22)
Ambassador Manor Nursing Center OK 12 S: 1 IJ, 1 harm (9/25) $55,941 (8/10)

$160,450 (2/14)

 
Trinity Health Care of Logan WV   8 S: 3 harm (6/12) $146,510 (4/11)  

14 SFFs that Had Not Improved Were Cited with Actual Harm and Immediate Jeopardy Deficiencies and Had CMPs or DPNAs Imposed In 2018 (But the CMPs Were Far Lower Than CMPs Imposed Against the Facilities In 2017 and 2016)

Facility State Months as SFF Deficiency (standard or complaint), type (IJ or harm), and date CMP/DPNA in 2018 2017 2016
Bethany Nursing & Rehab Center CO   5 C: 1 IJ (6/28) $11,267 (6/28) $191,732 (7/18) $18,785 (5/4)
Westminster Village Health DE 20 C: 3 harm (2/12) DPNA (2/12)   $239,168 (2/12)
Legacy Hilo Rehabilitation & Nursing Center HI 18 C: 1 IJ (3/16)

C: 2 harm (5/22)

C: 1 IJ (8/16)

$36,675 (3/16)

DPNA (8/16)
DPNA (3/16)

$46,720 (9/22)

 

$136,555 (9/19)

DPNA (9/19)

Touchstone Healthcare Community IA 15 S: 1 harm (2/15)

S: 1 IJ (9/26)

$10,400 (1/13) $56,375 (1/26)

$22,750 (8/15)

$56,375 (1/26)

$34,348 (12/14)
Garden Valley Retirement Village KS   5 S, C: 1 harm (10/16) DPNA (10/16) $92,981 (3/8)

 

$63,403 (11/16)
Twin Rivers Nursing and Rehab Center KY 18 C: 1 IJ (5/8) $195,845 (4/26)

DPNA (4/26)

$13,627 (4/26)

  $314,990 (5/20)
Rochester East Health Services MN 11 S, C: 2 IJ, 3 harm (9/18)

S: 2 harm (3/2)

DPNA (2/5) $28,288 (4/18)  

 

Isabelle Ridgway Post Acute Care Campus OH   9 S: 1 harm (1/30)

S: 2 IJ, 1 harm (8/23)

DPNA (1/30) $20,125 (2/13)  
Prestige Post-Acute & Rehab Center -McMinnville OR 15 C: 2 harm (5/18) $53,089 (3/2) $227,793 (8/11)

$11,053 (2/10)

 
The Gardens at West Short PA   9 C: 2 harm (3/16) $13,000 (3/16) $58,746 (5/18)

DPNA (10/17)

DPNA (5/18)

DPNA (8/12)
Trisun Care Center – Westwood TX 17 S,C: 2 harm (8/31)

C: 1 harm (3/1)

 

$21,450 (3/1)

DPNA (3/1)

  $92,034 (12/21)
Envoy of Westover Hill VA   6 S,C: 1 IJ, 6 harm (7/23) DPNA (7/23) $202,650 (5/19)  
Paramount Rehabilitation and Nursing WA 18 C: 1 harm (9/6) $36,673 (3/21) DPNA (2/7) $50,830 (11/8)

$287,430 (6/24)

Cheyenne Health Care Center WY   8 S: 1 harm (7/16) $11,053 (7/16)

$9,428 (5/4)

$98,982 (8/3) $11,726 (7/14)

Discussion

CMS is not imposing strict enforcement sanctions against SFFs that have not improved.

First, and as of February 7, 2019, CMS had not imposed any CMPs or DPNAs against 14 of 37 SFFs that were cited with actual harm or immediate jeopardy deficiencies in 2018.  This lack of enforcement is inconsistent with federal guidance requiring CMS to impose remedies immediately (that is, facilities are not given an opportunity to correct their deficiencies) if there is an immediate jeopardy deficiency, a G-level (actual harm) in the current survey and prior survey (the “double G” policy), or if the facility is an SFF and is cited with a deficiency at level F or above.[2]

For example, Vernon Health and Rehabilitation, an Indiana nursing facility, was cited with two immediate jeopardy deficiencies at a complaint survey in 2018 and a harm deficiency at the standard survey in 2018.  CMS did not impose either a CMP or DPNA.  Three surveys in 2017, before the facility was named an SFF, had resulted in three per day CMPs ($39,158 [one immediate jeopardy deficiency]; $31,000 [two actual harm deficiencies]; and $13,239 [one immediate jeopardy deficiency]) totaling $83,397.

In 2018, Ambassador Manor Nursing Center in Oklahoma was cited with an immediate jeopardy deficiency and an actual harm deficiency at its standard survey on September 25, after it had been named an SFF.  CMS did not impose either a CMP nor DPNA.  In 2017, CMS imposed two per day CMPs ($44,941 and $160,450) totaling $216,391.

Second, CMS imposed only DPNAs against five SFFs that had not improved and were cited with jeopardy or actual harm deficiencies in 2018.  Before the facilities’ designation as SFFs, CMS had imposed CMPs.

For example, Rochester East Health Services in Minnesota was cited with 22 deficiencies at its combined standard and complaint survey on September 18, 2018.  These deficiencies included two immediate jeopardy deficiencies and three actual harm deficiencies.  An earlier standard survey on March 2, 2018 cited 11 deficiencies, including two actual harm deficiencies.  CMS imposed only DNPA.  In 2017, CMS had imposed a CMP of $28,288 following a standard survey that cited 18 deficiencies, including one actual harm deficiency and one immediate jeopardy deficiency.

Envoy of Westover Hill in Virginia had a DPNA imposed in 2018, following a combined standard and complaint survey that cited an immediate jeopardy deficiency and six actual harm deficiencies.  In 2017, before it was designated an SFF, CMS imposed a CMP of $202,650, following a combined standard and complaint survey that cited three immediate jeopardy deficiencies and three actual harm deficiencies..

As of January 2019, Westminister Village Health had been an SFF for 20 months.  In 2016, CMS imposed a per day CMP totaling $239,168.  (The 2016 survey is not available on Nursing Home Compare.)  A complaint survey at the Delaware facility on February 12, 2018 cited 20 deficiencies, including three actual harm deficiencies involving failure to monitors the blood sugar levels of two residents who were taking insulin.  Both residents were hospitalized, one of them, twice.  CMS imposed only DPNA for the three actual harm-level deficiencies.

Finally, even when CMS imposes a CMP against one of the SFFs that has not improved, the CMP is small, averaging less than $20,000.  The 2018 CMPs are far smaller than the CMPs that CMS imposed against the facilities before they were designated SFFs.

For example, CMS named Bethany Nursing & Rehabilitation Center an SFF in August 2018.  The most recent annual survey at the Colorado nursing facility was conducted July 18, 2017, when CMS cited the facility with a harm-level deficiency and an immediate jeopardy deficiency and imposed a per day CMP totaling $191,732.  The state survey agency did not conduct an annual survey at the facility in 2018, but conducted two complaint surveys.  The June 28, 2018 complaint survey cited immediate jeopardy in supervision.  CMS imposed a CMP of $11,267.

Trisun Care Center – Westwood, a Texas nursing facility had a $21,450 CMP (and DPNA) imposed in 2018 for two actual harm deficiencies in neglect and supervision (a damaged walked caused a resident to fall and sustain a fractured shoulder); in 2017, CMS imposed a CMP of $92,034 for three immediate jeopardy deficiencies involving involuntary seclusion of residents.

Conclusion

CMS designed the Special Focus Facility Program to focus additional attention and enforcement resources on nursing facilities with a history and record of extremely poor care.  The Program is failing to achieve these goals.  CMS is not imposing significant penalties against SFFs, even those that it cites with actual harm or immediate jeopardy deficiencies.

The extraordinarily limited enforcement against even the most poorly performing nursing facilities in the country underscores how weak enforcement has become. CMS must change course and impose meaningful financial penalties against facilities that fail to provide residents with the care they need.  The lives of vulnerable nursing home residents are at stake.

February 2019 – T. Edelman

____________________

[1] CMS, “Special Focus Facility (“SFF”) Initiative,” https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf.
[2] State Operations Manual, Chapter 7, §7304.1, https://www.cms.gov/Regulations-and-Guidance/Guidance/Manuals/Downloads/som107c07.pdf  (scroll down to unnumbered p. 60.)

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