On April 21, 2007, the United States General Accountability Office released a report, dated March 27, 2007, entitled "NURSING HOMES: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents" (100 pages, PDF format).
GAO's previous reports on the regulation of federally-funded nursing homes dated to 1998 & 1999.
The GAO had concluded that "enforcement actions", known as sanctions, were ineffective in encouraging nursing homes to maintain compliance with federal quality requirements. More specifically, such sanctions were often rescinded before being implemented, because homes had a grace period to correct deficiencies.
For its follow-up study, the GAO gathered data from the Centers for Medicare & Medicaid Services for the period 2000-2005 regarding 63 previously-cited nursing homes. "The 63 homes had a history of harming residents and were located in 4 states that account for about 22 percent of homes nationwide."
Those cited nursing homes were located in the states of Michigan (16), Texas (23), California (10), and Pennsylvania (14).
The newly-issued Report notes little improvement in the enforcement against nursing homes of applicable federal regulations. Its general findings are set forth in the Report's executive summary (I reparagraphed the text for easier readability):
From fiscal years 2000 through 2005, the number of sanctions decreased for the 63 nursing homes GAO reviewed that had a history of serious quality problems, a decline consistent with nationwide trends. While the decline may reflect improved quality or changes to enforcement policy, it may also mask survey weaknesses that understate quality problems, an issue GAO has reported on since 1998.This is GAO's summary conclusion:
Although the number of sanctions decreased, the homes generally were cited for more deficiencies that caused harm to residents than other homes in their states. Almost half of the homes reviewed continued to cycle in and out of compliance; 19 did so 4 times or more. These homes temporarily corrected deficiencies and, even with sanctions, were again found out of compliance on subsequent surveys.
Several weaknesses appeared to undermine the effectiveness of the sanctions implemented against the homes reviewed.
First, civil money penalties (CMP), which by statute are not paid while under appeal — a process that can take years — were generally imposed at the lower end of the allowable dollar range. For example, the median per day CMP ranged from $350 to $500, significantly below the maximum of $3,000 per day.
Second, CMS favored the use of sanctions that give homes more time to correct deficiencies, increasing the likelihood that the sanctions would not be implemented. Thus, more than half of the denial of payment for new admissions (DPNA) that CMS imposed were the type that give homes 3 months to correct deficiencies rather than those that only give homes up to 15 days.
Third, there was no record of a sanction for about 22 percent of the homes reviewed that met CMS’s criteria for immediate sanctions, a problem GAO also identified in 2003; moreover, 60 percent of DPNAs imposed as immediate sanctions were not implemented until 1 to 2 months after citation of the deficiency.
Finally, involuntary termination of homes from participating in the Medicare or Medicaid programs was rare because of concerns about access to other nearby homes and resident transfer trauma; 2 of the 63 homes reviewed were involuntarily terminated because of quality problems.
CMS’s management of enforcement is hampered by the complexity of its immediate sanctions policy and by its fragmented and incomplete data.The Report noted a decline in CMPs ("Civil Monetary Penalties") applied in Pennsylvania, just as in the other three states, but noted that "States’ preferences for either state or federal CMPs may in part affect their use."
Its policy allows some homes with the worst compliance histories to escape immediate sanctions. For example, a home cited with a serious deficiency and that has not yet corrected an earlier serious deficiency is spared an immediate sanction. Such rules may in part explain why the 63 homes reviewed only had 69 instances of immediate sanctions over a 6-year period despite being cited 444 times for deficiencies that harmed residents.
Although CMS initiated development of a new enforcement data system 6 years ago, it is fragmented and has incomplete national reporting capabilities. CMS is taking additional steps to improve nursing home enforcement, such as developing guidance to encourage more consistency in CMP amounts, but it is not clear whether and when these initiatives will address the enforcement weaknesses GAO found.
[T]he homes we reviewed in Pennsylvania had only one implemented CMP and paid no federal CMPs from fiscal years 2003 through 2005; however, during the same period, the Pennsylvania state survey agency implemented seven state CMPs and collected $12,050.39.The Report noted Pennsylvania's reliance more on state, not federal, violation proceedings:
A Pennsylvania state survey agency official said that the state prefers to use state sanctions because they can be implemented more quickly and are believed to be more effective than federal sanctions. * * *
* * * As noted throughout this report, we found variation among the states we reviewed in areas such as the number and amount of CMPs implemented and the proportion of homes with double Gs. In general, these differences reflect the state survey agencies’ views on the effectiveness of certain sanctions and differences in state enforcement policies.One conclusion, on Page 58 of the Report, contained a chilling admission and a warning, perhaps understated:
For example, Pennsylvania state officials prefer state rather than federal sanctions because they believe the former are more effective, have a greater deterrent effect on providers, and are easier and quicker to impose. Pennsylvania requires homes to pay a state CMP prior to appeal, even if the home appeals the deficiency.
In contrast, homes need not pay a federal CMP until after an appeal is resolved. Pennsylvania rarely implemented federal CMPs on the 14 state homes whose compliance history we reviewed, preferring to use state sanctions instead. * * *
We believe it is important for CMS to explore the differences in state enforcement approaches and policies so that it can both identify problem areas and identify best practices that could be disseminated nationwide. * * *
Some of these homes repeatedly harmed residents over a 6-year period and yet remain in the Medicare and Medicaid programs.The Report's findings were reported by The New York Times on April 22, 2007, in an article entitled "Oversight of Nursing Homes Is Criticized", by Robert Pear. The article addressed reactions and possible effects:
Until these systemic weaknesses are addressed, the effectiveness of sanctions in encouraging homes to return to and maintain compliance will remain questionable and the safety and security of vulnerable residents will remain at risk. * * *
Senator Charles E. Grassley, Republican of Iowa, said the conclusions of the study — an exhaustive review of progress over the last decade — were “very discouraging.”
“After the tremendous reform effort of the last 10 years,” Mr. Grassley said, “the federal agency that’s supposed to coordinate regulatory efforts is taking an approach that is undermining the sanctions that are available to try to improve care in the most questionable nursing homes.” Mr. Grassley, who requested the study, is the senior Republican on the Finance Committee, which has authority over Medicaid and Medicare.
Members of Congress are likely to use the report as a map for legislation requiring stiffer penalties for the most serious violations. Administration officials agreed that higher fines were appropriate in some cases. They said they would ask Congress for the power to collect fines more swiftly, without waiting for all appeals to be resolved.
The article also noted how many people and institutions are affected by enforcement programs.
About 1.5 million people live in the nation’s 16,400 nursing homes on any given day. More than 3 million people receive nursing-home care at some point in the year.
These are the four short-form recommendations of the GAO to the CMS Administrator (who "generally concurred"):
- Develop an administrative process for collecting civil money penalties more expeditiously and seek legislation to implement this process effectively, as appropriate;
- Strengthen its immediate sanctions policy;
- Expand its oversight of homes with a history of harming residents; and
- Improve the effectiveness of its enforcement data systems.
Following are the links provided by the GAO on its website regarding its Report, "Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents" GAO-07-241, dated March 26, 2007:
“The history of sanctions may be a good predictor of future behavior.”
-- Leslie V. Norwalk, Esq., Acting Administrator,
Centers for Medicare and Medicaid Services
(as quoted by The New York Times)