Nursing Homes: Opportunities Exist to Facilitate the Use of the Temporary Management Sanction
Highlights
The nation's 1.4 million nursing home residents are a highly vulnerable population of elderly and disabled individuals for whom remaining at home is no longer feasible. The federal government plays a key role in ensuring that nursing home residents receive appropriate care by setting quality requirements that nursing homes must meet to participate in the Medicare and Medicaid programs and by contracting with states to conduct routine inspections--called standard surveys--and complaint investigations. To encourage compliance with quality requirements, Congress has authorized certain enforcement actions, known as sanctions, such as civil money penalties or termination from participating in the Medicare and Medicaid programs. The Centers for Medicare & Medicaid Services (CMS) is responsible for imposing federal sanctions, typically on the basis of states' recommendations. One sanction--temporarily replacing a home's management--has been used infrequently. According to CMS guidance, temporary management may be used instead of termination in cases where nursing homes place residents at risk of death or serious injury--referred to as immediate jeopardy--or place residents at widespread risk of actual harm. CMS requires that a nursing home remove any immediate jeopardy within a short time frame of 23 calendar days after the survey or complaint investigation in which it was cited, with or without the assistance of temporary management. Otherwise, CMS will terminate the home from Medicare and Medicaid. In some cases, the nursing home's owner may choose to sell the home to a new owner while the home is still under temporary management. Congress was interested in information on why the temporary management sanction has been used infrequently to address nursing home quality problems and asked us to study this issue. Specifically, we focused on (1) CMS and states' experience with the use of federal temporary management and its effectiveness in achieving compliance in the short and longer term; and (2) obstacles to the use of federal temporary management and how such obstacles could be addressed. Congress also asked us to examine whether changes in ownership occurred when nursing homes were under federal temporary management and to identify obstacles to such ownership changes.
Recommendations
Recommendations for Executive Action
| Agency Affected | Recommendation | Status |
|---|---|---|
| Centers for Medicare & Medicaid Services | To address obstacles to the use of the federal temporary management sanction, the Administrator of CMS should work with states to create and maintain a list or lists of qualified temporary managers on either a regional or national basis. |
Closed – Implemented
June 2011 - CMS discussed the recommendation with states and in March 2011 issued civil money penalty regulation permitting CMP moneys to be used for the "Development and maintenance of temporary management or receivership capability such as but not limited to, recruitment, training, retention or other system infrastructure expenses." However, as specified in Sec 488.415(c), a temporary manager's salary must be paid by the facility. (See 42 CFR 488.433(e).) In August 2011, agency officials also said they continue to facilitate State-Federal workgroup meetings to examine whether the temporary management sanction makes sense and, if so, whether it could be strengthened. CMS anticipated having an update on the issue in the next few months.
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| Centers for Medicare & Medicaid Services | To address obstacles to the use of the federal temporary management sanction, the Administrator of CMS should work with states to develop additional information that identifies best practices for states and regional offices, including when and how to use the sanction, the essential qualifications for temporary managers, and alternative funding sources available for temporary management, such as civil money penalties funds. |
Closed – Implemented
September 2017: CMS developed training materials for State Agency Directors which includes guidance on when and how to use the temporary management sanction as well as links to existing guidance on essential qualifications for temporary managers. Specifically, the mandatory State Agency Director Orientation Course includes guidance and examples of when it is appropriate to impose a temporary manager, discussion of the kinds of problems that may be created by the temporary management requirement, and links to relevant sections of the CFR and State Operations Manual that provide temporary management guidance. In addition, CMS developed an eight module, web-based training course for Enforcement Specialists which covers a variety of topics including guidance and examples of when to use the temporary management sanction and links to relevant sections of the CFR and State Operations Manual. September 2016: GAO has not received additional information from CMS. July 2015: CMS has begun taking actions to address this recommendation including working with states and stakeholders to identify best practices on the use of the temporary management sanction. CMS has indicated additional actions--such as training materials--are currently being developed. July 2014: CMS officials said they were drafting an internal enforcement action plan to discuss enforcement remedies including temporary management. The officials also told us CMS had reviewed the temporary management regulatory policies and planned to update its temporary management guidance as needed. June 2013: CMS issued civil money penalty regulation, made effective January 1, 2012, permitting CMP monies to be used for the "Development and maintenance of temporary management or receivership capability such as but not limited to, recruitment, training, retention or other system infrastructure expenses. However, as specified in Sect. 488.415(c), a temporary manager's salary must be paid by the facility." (See 42 CFR Sect. 488.433(e).) CMS officials said they have been making an aggressive effort to work with the Regional Offices and states on the appropriate use of all sanctions in general, including the use of Temporary Management.
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| Centers for Medicare & Medicaid Services | To help ensure the longer-term compliance of nursing homes that have successfully returned to substantial compliance under temporary management, the Administrator of CMS should develop guidance for states to enhance their oversight of such homes, such as implementing reactivation of temporary management if the home does not maintain substantial compliance over the 2 years following the conclusion of the sanction. |
Closed – Implemented
September 2018: CMS provided its FY2016 to 2017 Nursing Home Action Plan policy letter which included an Enforcement Strategic Plan that outlined action plan steps for improved enforcement actions, such as tracking of enforcement remedies through data reports, conducting quarterly calls with regional offices and states to discuss enforcement trends and improvement opportunities, providing additional web-based training for regional offices and states, and revising Chapter 7 of the State Operations Manual (SOM) to expand the circumstances where remedies must be imposed. While not specific to homes that have returned to substantial compliance under temporary management, these action plan steps may provide general improvements to oversight of all homes, including those with prior temporary management. Further, CMS officials explained that although the agency does not have authority to impose new enforcement actions on homes based on their history of noncompliance alone (e.g., implementing reactivation of temporary management if the home does not maintain substantial compliance following the conclusion of the sanction), the agency does take into account a facility's past history of noncompliance and the remedies that were imposed as a result when deciding what remedies to impose based on new findings of noncompliance. According to summary data provided by CMS on recent survey and enforcement history for the six homes that have had temporary management in 2015 and 2016, each had enforcement remedies levied in subsequent surveys. Three of the homes were subsequently terminated and two of the three homes that remained open had temporary management re-imposed followed by less severe enforcement remedies resulting from subsequent surveys. Within CMS's oversight and enforcement authority, the actions taken, as outlined in the Enforcement Strategic Plan and demonstrated by the recent survey history for homes that received a temporary management enforcement action, meet the intent of the recommendation. September 2017: CMS provided documentation of training documents developed for State Agency Directors and Enforcement Specialists covering a variety of topics including when to use the temporary management sanction. Neither the new training nor relevant sections of the CFR or State Operations Manual appear to provide guidance on longer-term oversight of nursing homes that have returned to substantial compliance under temporary management. September 2016: GAO has not received additional information from CMS. July 2015: CMS indicated it will provide GAO with updated actions in early 2016. July 2014: CMS said the recommendation was in process and CMS was drafting an internal enforcement action plan to discuss enforcement remedies including temporary management. June 2013: CMS officials said they have been making an effort to work with the Regional Offices and states on the appropriate use of all sanctions in general, including the use of Temporary Management. June 2012: CMS officials said that the agency continues to investigate the various uses of CMP monies and the potential to use CMPs to recruit, train and supervise temporary managers is one of several options under consideration. May 2011: CMS agreed this was an important recommendation, but due to the Affordable Care Act implementation, the agency said they temporarily deferred planned work until 2012.
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