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entitled 'Nursing Homes: Efforts to Strengthen Federal Enforcement Have
Not Deterred Some Homes from Repeatedly Harming Residents' which was
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Report to the Ranking Minority Member, Committee on Finance, U.S.
Senate:
United States Government Accountability Office:
GAO:
March 2007:
Nursing Homes:
Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes
from Repeatedly Harming Residents:
GAO-07-241:
GAO Highlights:
Highlights of GAO-07-241, a report to the Ranking Minority Member,
Committee on Finance, U.S. Senate
Why GAO Did This Study:
In 1998 and 1999 reports, GAO concluded that enforcement actions, known
as sanctions, were ineffective in encouraging nursing homes to maintain
compliance with federal quality requirements: sanctions were often
rescinded before being implemented because homes had a grace period to
correct deficiencies. In response, the Centers for Medicare & Medicaid
Services (CMS) began requiring immediate sanctions for homes that
repeatedly harmed residents. Using CMS enforcement and deficiency data,
GAO (1) analyzed federal sanctions from fiscal years 2000 through 2005
against 63 homes previously reviewed and (2) assessed CMS’s overall
management of enforcement. The 63 homes had a history of harming
residents and were located in 4 states that account for about 22
percent of homes nationwide.
What GAO Found:
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. 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.
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.
What GAO Recommends:
GAO recommends that the CMS Administrator (1) develop an administrative
process for collecting civil money penalties more expeditiously and
seek legislation to implement this process effectively, as appropriate;
(2) strengthen its immediate sanctions policy; (3) expand its oversight
of homes with a history of harming residents; and (4) improve the
effectiveness of its enforcement data systems. CMS generally concurred
with GAO’s recommendations.
[Hyperlink, http://www.gao.gov/cgi-bin/getrpt?GAO-07-241].
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Kathryn G. Allen at (202)
512-7118 or allenk@gao.gov.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Number of Sanctions Has Decreased:
Despite Changes in Federal Enforcement Policy, Many Homes Continued to
Cycle In and Out of Compliance:
Complex Immediate Sanctions Policy and Data Limitations Hamper CMS
Management of Enforcement:
Conclusions:
Recommendations for Executive Action:
Agency and State Comments and Our Evaluation:
Appendix I: Scope and Methodology:
Appendix II: Percentage of Nursing Homes Cited for Actual Harm or
Immediate Jeopardy, by State, Fiscal Years 2000-2005:
Appendix III: Federal Sanctions for Nursing Homes Reviewed, by State,
Fiscal Years 2000-2005:
Appendix IV: Examples of Homes Reviewed That Frequently Cycled In and
Out of Compliance:
Appendix V: Number of Days between Survey and Implementation Date of
DPNA for Homes Reviewed, Fiscal Years 2000-2005:
Appendix VI: Comments from the Centers for Medicare & Medicaid
Services:
Appendix VII: Comments from the California Department of Health
Services:
Appendix VIII: Comments from the Michigan Department of Community
Health:
Appendix IX: Comments from the Texas Department of Aging and Disability
Services:
Appendix X: GAO Contact and Staff Acknowledgments:
Related GAO Products:
Tables:
Table 1: Number of Nursing Homes Reviewed in 1999 That Were Included in
Our Analysis for This Report:
Table 2: Scope and Severity of Deficiencies Identified during Nursing
Home Surveys:
Table 3: Sanctions Available to Encourage Nursing Home Compliance with
Requirements:
Table 4: Sanctions Implemented for Homes Reviewed, Fiscal Years 2000-
2002 and 2003-2005:
Table 5: Examples of Homes with Low Implemented CMPs:
Table 6: Example of a Michigan Nursing Home That Frequently Cycled In
and Out of Compliance and Was Still Open as of November 2006:
Table 7: Examples of Homes' Deficiency Histories and Termination
Actions, Fiscal Years 2000-2005:
Table 8: Number of Nursing Homes Reviewed in 1999 That Were Included in
Our Analysis for This Report, by State:
Table 9: Percentage of Nursing Homes Cited for Actual Harm or Immediate
Jeopardy during Standard Surveys, Fiscal Years 2000-2005:
Table 10: Number of Sanctions Implemented Among Homes We Reviewed,
Fiscal Years 2000-2005:
Table 11: Examples of Homes that Frequently Cycled In and Out of
Compliance:
Figures:
Figure 1: Federal-State Responsibilities in the Enforcement Process:
Figure 2: Percentage of Implemented Sanctions for Homes Reviewed Over
Three Time Periods (July 1995-October 1998, Fiscal Years 2000-2002, and
Fiscal Years 2003-2005):
Figure 3: Frequency that Reviewed Homes Cycled In and Out of
Compliance, Fiscal Years 2000-2005:
Figure 4: Number of Days between Survey and Implementation of CMPs and
DPNAs among Homes Reviewed, Fiscal Years 2000-2005:
Figure 5: Lag Time between Survey and CMP Payment for a Michigan
Nursing Home:
Figure 6: Number of Homes with One or More Double Gs, Fiscal Years 2000-
2005:
Figure 7: Impact of Intervening Periods of Compliance Rule on Immediate
Sanctions for One Pennsylvania Nursing Home, 2000:
Figure 8: Impact of Clearing Effect Rule on Immediate Sanctions for One
Michigan Nursing Home, 2000-2002:
Abbreviations:
ACTS: ASPEN Complaints/Incidents Tracking System:
AEMA: SPEN Enforcement Manager:
ASPEN: Automated Survey Processing Environment:
CMP: civil money penalty:
CMPTS: CMP Tracking System:
CMS: Centers for Medicare & Medicaid Services:
DPNA: denial of payment for new admissions:
LTC: Long Term Care Enforcement Tracking System:
OBRA 87: Omnibus Budget Reconciliation Act of 1987:
OSCAR: On-Line Survey, Certification, and Reporting system:
PDQ: Providing Data Quickly:
QIO: Quality Improvement Organization:
United States Government Accountability Office:
Washington, DC 20548:
March 26, 2007:
The Honorable Charles E. Grassley:
Ranking Minority Member:
Committee on Finance:
United States Senate:
Dear Senator Grassley:
The nation's 1.5 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 routinely inspect homes and conduct complaint
investigations.[Footnote 1] Moreover, to encourage compliance with
these requirements, Congress has authorized certain enforcement
actions, known as sanctions, including civil money penalties (CMP) or
termination from participating in these programs. With the aging of the
baby boom generation, the number of individuals needing nursing home
care and the associated costs are expected to increase dramatically.
Combined Medicare and Medicaid payments for nursing home services were
about $67 billion in 2004, including a federal share of about $46
billion.[Footnote 2]
In 1998 and 1999 reports, we identified significant weaknesses in
federal and state activities designed to detect and correct quality
problems at nursing homes.[Footnote 3] A key finding was that sanctions
imposed on nursing homes, including those that repeatedly harmed
residents, often did not take effect. Instead, the sanctions were
rescinded prior to their effective dates because homes had a grace
period in which they could and often did correct deficiencies. We
referred to this phenomenon as a "yo-yo" pattern of compliance because
homes cycled in and out of compliance, harming residents while avoiding
sanctions. Overall, we concluded that the goal of the enforcement
process--to help ensure that homes maintain compliance with federal
quality requirements--was not being realized. In response to our
recommendations, the Centers for Medicare & Medicaid Services (CMS),
the federal agency that manages these two public health care programs,
took several steps, including the introduction of an immediate
sanctions policy for homes found to repeatedly harm residents and the
development of a new data system to improve management of the
enforcement process. Under CMS's immediate sanctions policy, sanctions
may be imposed without giving homes an opportunity to correct serious
deficiencies that resulted in actual resident harm or put residents at
risk of death or serious injury. We also reported that the deterrent
effect of CMPs can be hampered by a backlog of appeals, which further
delays payment of CMPs; by statute, CMPs are not paid until appealed
cases are closed.
You asked us to assess CMS's progress in improving the enforcement
process, particularly for homes with a history of harming residents. In
response to your request, we (1) analyzed federal sanctions from fiscal
years 2000 through 2005 against 63 homes with a history of harming
residents as well as nationwide trends in nursing home sanctions for
the same time period, (2) evaluated the extent to which the homes
cycled in and out of compliance and the impact of CMS's immediate
sanctions policy, and (3) assessed CMS's management of enforcement
activities. The nursing homes were located in California, Michigan,
Pennsylvania, and Texas and their prior compliance and enforcement
histories formed the basis for the conclusions in our March 1999
report.[Footnote 4] These homes were selected for that report because
of their serious or sustained compliance problems prior to 1999 and are
not representative of homes in those states or homes
nationwide.[Footnote 5] The 63 homes we reviewed for this report
participated in Medicare and Medicaid for at least 6 months during
fiscal years 2000 through 2005. Table 1 shows the number of homes that
participated by fiscal year. Changes in the number of homes from year
to year are a result of homes' closure, termination, or reinstatement
of participation. For example, the change from 61 homes in fiscal year
2000 to 59 homes in fiscal year 2001 represents the voluntary closure
of 2 homes, the involuntary termination of 1, and the reinstatement of
1, for a net decrease of 2 homes.[Footnote 6]
Table 1: Number of Nursing Homes Reviewed in 1999 That Were Included in
Our Analysis for This Report:
1999 report: 74;
Current report: Fiscal year: 2000: 61;
Current report: Fiscal year: 2001: 59;
Current report: Fiscal year: 2002: 58;
Current report: Fiscal year: Average 2000-2002: 59;
Current report: Fiscal year: 2003: 58;
Current report: Fiscal year: 2004: 54;
Current report: Fiscal year: 2005: 55;
Current report: Fiscal year: Average 2003-2005: 56;
Current report: Fiscal year: Total number of homes with any
participation in 2000-2005: 63.
Source: GAO.
Note: Some of the 63 homes only participated in the Medicare and
Medicaid programs for a portion of fiscal years 2000 through 2005
because they either closed permanently or closed temporarily and were
subsequently reinstated. To be included in our analysis we required
such homes to have participated for at least 6 months of the fiscal
year.
[End of table]
Our analysis relied primarily on (1) deficiency data from CMS's On-Line
Survey, Certification, and Reporting system (OSCAR) and the CMS
Providing Data Quickly (PDQ) Web site; (2) sanctions data from its Long
Term Care Enforcement Tracking System (LTC) and ASPEN Enforcement
Manager (AEM);[Footnote 7] and (3) CMP payment information from its CMP
Tracking System (CMPTS).[Footnote 8] We also examined CMS regional
office and state enforcement case files for the nursing homes we
reviewed. We analyzed deficiency and sanctions data to identify the
number and type of sanctions implemented and their implementation
rates; the extent to which homes cycled in and out of compliance; the
use of immediate sanctions for homes that repeatedly harmed residents,
including their deterrent effect; the use of termination; and
variability in state approaches to enforcement. To identify trends, we
compared deficiency and sanctions data across two time periods: fiscal
years 2000 through 2002 and fiscal years 2003 through 2005.[Footnote 9]
We focused our analysis on three types of sanctions--CMPs, denial of
payment for new admissions (DPNA), and terminations--which accounted
for about 81 percent of all sanctions from fiscal years 2000 through
2005. Although termination was used infrequently--less than 1 percent
of all sanctions--we included it in our analysis because it is the most
severe sanction, resulting in the loss of Medicare and Medicaid
revenue.[Footnote 10] Based on our assessment of the data from the case
file review, we determined that the sanctions data were sufficiently
reliable to assess general nationwide trends in implemented sanctions.
Because we could not conduct such checks of the data in all 50 states
and the District of Columbia, we did not analyze trends across the
individual states.[Footnote 11] We also reviewed CMS enforcement policy
and guidance and discussed the immediate sanctions policy and data
reliability issues with CMS and state officials. Finally, we obtained
perspectives from regional office and state officials on the sanctions
used for the homes we reviewed. Our findings on sanctions, such as
implementation rates and use of the available range of sanctions,
against these homes cannot be generalized to all homes in the 4 states
or to all nursing homes nationwide. However, we believe that the
findings are illustrative of the overall adequacy of federal and state
responses to nursing homes with a history of serious noncompliance with
federal quality requirements. Appendix I provides a more detailed
description of our scope and methodology, including steps taken to
ensure the reliability of the data used in this report. We performed
our work from January 2005 through January 2007 in accordance with
generally accepted government auditing standards.
Results in Brief:
For the homes we reviewed in four states, the number of sanctions
implemented as well as the number of serious deficiencies cited
declined from fiscal years 2000 through 2005--trends that were also
seen nationwide. While the decline may reflect improved quality or
changes to enforcement policy, it may also mask survey weaknesses that
understate quality problems, an issue we have reported on since 1998.
In general, the homes were cited for more deficiencies that caused harm
to residents than other homes in their respective states. For example,
the homes we reviewed in California had three times as many serious
deficiencies as other homes in the state. We also found differences in
the implementation rate of various sanctions for the homes we reviewed.
Comparing results from the baseline period of July 1995 to October 1998
with the period fiscal years 2003 through 2005, the implementation rate
of CMPs increased from 32 percent to 86 percent but declined for DPNAs
by about 20 percent. However, the deterrent effect of CMPs was diluted
because CMS imposed CMPs at the lower end of the allowable range for
the homes we reviewed. For example, the median per day CMP amount
imposed for deficiencies that do not cause immediate jeopardy to
residents was $500 in fiscal years 2000 through 2002 and $350 in fiscal
years 2003 through 2005; the allowable range is $50 to $3,000 per day.
Generally, CMS did not exercise its discretionary authority to impose
DPNAs and terminations for the homes; rather, it waited until these
sanctions could be imposed on a mandatory basis, allowing the homes
more opportunities to escape sanctions prior to implementation.
Moreover, in some instances, CMS extended the implementation dates of
imposed terminations, thus allowing homes additional time to avoid
being terminated by correcting deficiencies.
Despite changes in federal enforcement policy, almost half of the 63
homes we reviewed--homes with prior serious quality problems--continued
to cycle in and out of compliance during fiscal years 2000 through
2005, causing harm to residents. These homes corrected deficiencies
only temporarily and, despite having had sanctions implemented, were
again found to be out of compliance, including 8 homes that cycled in
and out of compliance 7 or more times. During this same time period, 27
of the 63 homes were cited 69 times for deficiencies that warranted
immediate sanctions, but 15 of these cases did not result in immediate
sanctions. Moreover, the "immediate sanctions" label is misleading
because CMS's policy requires only that homes be notified immediately
of CMS's intent to implement sanctions, not that sanctions be
implemented immediately. When DPNAs are imposed, the lag time between
the occurrence of a deficiency that results in an immediate sanction
and the sanction's implementation date provides a de facto grace
period; if the home is able to correct the deficiency, it can escape
sanctions. Although the use of CMPs avoids this de facto grace period
because they can be implemented retroactively, by statute, payment of
CMPs may be delayed until after exhausting appeals of the underlying
deficiency, a process that can take years. Nor did CMS's implementation
of immediate sanctions appear to deter future repeat deficiencies--18
of the 27 homes with immediate sanctions had multiple instances of such
sanctions in fiscal years 2000 through 2005. Termination of a home from
the Medicare and Medicaid programs was infrequent. By the end of fiscal
year 2005, only 2 homes were terminated involuntarily because of
quality problems. Another 9 that closed did so voluntarily. In effect,
these homes picked their own closure dates and may have continued to
harm residents before closing. For example, 2 such homes were cited for
harming residents 21 and 26 times, respectively, and had sanctions
implemented numerous times from fiscal year 2000 until their voluntary
closures in 2004.
In general, the effectiveness of CMS's management of nursing home
enforcement is hampered by the overall complexity of its immediate
sanctions policy, intended to deter repeated noncompliance, and by its
fragmented data systems and incomplete national reporting capabilities.
First, the complexity of the immediate sanctions policy allows some
homes with the worst compliance histories--the very homes the policy
was designed to address--to escape immediate sanctions. For example,
homes that do not correct deficiencies can avoid immediate sanctions
because of the requirement for an intervening period of compliance
between the pair of surveys that identify serious deficiencies--that
is, a new serious deficiency will not trigger an immediate sanction
unless the prior serious deficiency has been corrected. Thus, if a
state survey agency cited a home for a serious deficiency and 2 weeks
later--before the first deficiency was corrected--cited the home for
another serious deficiency, the home might not receive an immediate
sanction. In addition, homes--even those with a history of multiple
serious deficiencies--may escape immediate sanctions because a routine
inspection without such a serious deficiency, in effect, clears the
home's record for determining if immediate sanctions are applicable.
The immediate sanctions associated with CMS's policy also are often
inequitable; multiple serious deficiencies during one inspection may
result in the same sanction as an inspection with a single serious
deficiency. Second, CMS's fragmented and incomplete data systems
continue to hamper its ability to monitor enforcement. We previously
reported that CMS lacked a data system that integrated enforcement data
nationwide and that the lack of such a system made it difficult for CMS
to consistently manage and monitor sanctions across states and its
regional offices. Although CMS has developed a new data system, the
system's components are not integrated, and the national reporting
capabilities are not complete. Finally, CMS is taking steps to improve
its enforcement of nursing home quality requirements. In addition to
its new data system, the agency piloted new guidance in 2006 designed
to encourage more consistency across states in the amount of CMPs,
revised a program that provides enhanced enforcement and monitoring of
some homes with a history of harming residents in each state, and
funded studies to examine the effectiveness of nursing home
enforcement.
We are recommending that, to increase the deterrent effect of CMPs, the
Administrator of CMS develop an administrative process to collect CMPs
prior to exhaustion of appeals, seek legislation for the implementation
of this process, and address any due process concerns, as appropriate.
We are also recommending that the CMS Administrator take actions to (1)
improve the immediate sanctions policy to help ensure that homes that
repeatedly harm residents or place them in immediate jeopardy do not
escape immediate sanctions, (2) strengthen the deterrent effect of
certain sanctions, (3) expand a program of enhanced enforcement for
homes with a history of noncompliance, and (4) improve the
effectiveness of the agency's data systems used for enforcement. In
commenting on a draft of this report, CMS generally concurred with our
recommendations but did not always specify how it would implement them.
In addition, CMS noted that implementation of three of our
recommendations raised resource issues and that others required
additional research. The four states in which the nursing homes we
reviewed were located generally concurred with our findings.
Background:
Ensuring the quality and safety of nursing home care has been a focus
of considerable congressional attention since 1998. Titles XVIII and
XIX of the Social Security Act establish minimum requirements in
statute that all nursing homes must meet to participate in the Medicare
and Medicaid programs, respectively. With the Omnibus Budget
Reconciliation Act of 1987 (OBRA 87), Congress focused the requirements
on the quality of care actually provided by a home.[Footnote 12] To
help ensure that homes maintained compliance with the new requirements,
OBRA 87 also established the range of available sanctions, to include
CMPs, DPNAs, and termination.[Footnote 13]
Ensuring Compliance with Federal Quality Requirements:
CMS contracts with state survey agencies to assess whether homes meet
federal quality requirements through routine inspections, known as
standard surveys,[Footnote 14] and complaint investigations. The
requirements are intended to ensure that residents receive the care
needed to protect their health and safety, such as preventing avoidable
pressure sores, weight loss, and accidents. While a standard survey
involves a comprehensive assessment of federal quality requirements, a
complaint investigation generally focuses on a specific allegation
regarding resident care or safety; complaints can be lodged by a
resident, family member, or nursing home employee. Deficiencies
identified during either standard surveys or complaint investigations
are classified in 1 of 12 categories according to their scope (i.e.,
the number of residents potentially or actually affected) and severity.
An A-level deficiency is the least serious and is isolated in scope,
while an L-level deficiency is the most serious and is considered to be
widespread in the nursing home (see table 2).[Footnote 15] When state
surveyors identify and cite B-level or higher deficiencies, the home is
required to prepare a plan of correction and, depending on the severity
of the deficiency, surveyors conduct revisits to ensure that the home
actually implemented its plan and corrected the deficiencies.[Footnote
16]
Table 2: Scope and Severity of Deficiencies Identified during Nursing
Home Surveys:
Severity: Immediate jeopardy[A];
Scope: Isolated: J;
Scope: Pattern: K;
Scope: Widespread: L.
Severity: Actual harm;
Scope: Isolated: G;
Scope: Pattern: H;
Scope: Widespread: I.
Severity: Potential for more than minimal harm;
Scope: Isolated: D;
Scope: Pattern: E;
Scope: Widespread: F.
Severity: Potential for minimal harm[B];
Scope: Isolated: A;
Scope: Pattern: B;
Scope: Widespread: C.
Source: CMS.
[A] Actual or potential for death/serious injury.
[B] Nursing home is considered to be in substantial compliance.
[End of table]
Homes with deficiencies at the A, B, or C levels are considered to be
in substantial compliance with federal quality requirements, while
homes with D-level or higher deficiencies are considered noncompliant.
A noncompliance period begins when a survey finds noncompliance and
ends when the home either achieves substantial compliance by correcting
the deficiencies or when the home is terminated from Medicare and
Medicaid. Since 1998, the deficiencies cited during standard surveys
have been summarized on CMS's Nursing Home Compare Web site, and CMS
subsequently added data on the results of complaint
investigations.[Footnote 17] These data are intended to help consumers
select a nursing home that takes into account the quality of care
provided to residents.
Range of Federal Sanctions:
CMS and the states can use a variety of federal sanctions to help
encourage compliance with quality requirements ranging from less severe
sanctions, such as indicating the specific actions needed to address a
deficiency and providing an implementation time frame, to those that
can affect a home's revenues and provide financial incentives to return
to and maintain compliance (see table 3).[Footnote 18] Overall, two
sanctions--CMPs and DPNAs--accounted for 80 percent of federal
sanctions from fiscal years 2000 through 2005.
Table 3: Sanctions Available to Encourage Nursing Home Compliance with
Requirements:
Sanction: CMP;
Description: The home pays a fine for each day or instance of
noncompliance.
Sanction: DPNA;
Description: Medicare and/or Medicaid payments can be denied for all
newly admitted eligible residents.[A].
Sanction: Directed in-service training;
Description: The home is required to provide training to staff on a
specific issue identified as a problem in the survey.
Sanction: Directed plan of correction;
Description: The home is required to take action within specified time
frames according to a plan of correction developed by CMS, the state,
or a temporary manager.
Sanction: State monitoring;
Description: An on-site monitor is placed in the home to help ensure
that the home achieves and maintains compliance.
Sanction: Temporary management;
Description: The nursing home accepts a substitute manager appointed by
the state with the authority to hire, terminate, and reassign staff;
obligate funds; and alter the nursing home's procedures, as
appropriate.
Sanction: Termination;
Description: Termination from the Medicare and Medicaid programs. The
home is no longer eligible to receive Medicare and Medicaid payments
for beneficiaries residing in the home.
Source: CMS.
Notes: Most of the above sanctions are authorized by statute (see 42
U.S.C. §1395i-3(h) and 42 U.S.C. §1396r(h)), while directed in-service
training is authorized by regulation (see 42 C.F.R § 488.406(a)).
Additional or alternative sanctions may also be used (see 42 C.F.R. §
488.406(c)).
[A] CMS may also deny payment for all Medicare-and/or Medicaid-covered
residents but seldom does so because it may severely limit the homes'
revenues for patient care.
[End of table]
The majority of federal sanctions implemented from fiscal years 2000
through 2005--about 54 percent--were CMPs. CMPs may be either per day
or per instance. CMS regulations specify a per day CMP range from $50
to $10,000 for each day a home is noncompliant--from $50 to $3,000 for
nonimmediate jeopardy and $3,050 to $10,000 for immediate jeopardy. The
overall amount of the fine increases the longer a home is out of
compliance.[Footnote 19] For example, a home with a per day CMP of
$5,000 that is out of compliance for 10 days would accrue a total
penalty of $50,000. A per day CMP can be assessed retroactively,
starting from the first day of noncompliance, even if that date is
prior to the date of the survey that identified the deficiency.
Per instance CMPs range from $1,000 to $10,000 per episode of
noncompliance.[Footnote 20] While multiple per instance CMPs can be
imposed for deficiencies identified during a survey, the total amount
cannot exceed $10,000. Per day and per instance CMPs cannot be imposed
as a result of the same survey, but a per day CMP can be added when a
deficiency is identified on a subsequent survey if a per instance CMP
was the type of CMP initially imposed. Unlike other sanctions, CMPs
require no notice period. However, if a home appeals the deficiency, by
statute, payment of the CMP--whether received directly from the home or
withheld from the home's Medicare and Medicaid payments--is deferred
until the appeal is resolved.[Footnote 21]
DPNAs made up about 26 percent of federal sanctions from fiscal years
2000 through 2005. A DPNA denies a home payments for new admissions
until deficiencies are corrected. In contrast to CMPs, CMS regulations
require that homes be provided a notice period of at least 15 days for
other sanctions, including DPNAs; the notice period is shortened to 2
days in the case of immediate jeopardy. As a result, homes can avoid
DPNAs if they are able to correct deficiencies during the notice
period, which provides a de facto grace period. Unlike CMPs, DPNAs
cannot be imposed retroactively, and payment denial is not deferred
until appeals are resolved.
Although nursing homes can be terminated involuntarily from
participation in Medicare and Medicaid, which can result in a home's
closure, termination is used infrequently.[Footnote 22] Terminations
were less than 1 percent of total sanctions from fiscal years 2000
through 2005. Four of the seven types of sanctions described above were
used less frequently than CMPs and DPNAs--directed plan of correction,
state monitoring, directed in-service training, and temporary
management--these sanctions accounted for about 19 percent of sanctions
nationwide from 2000 through 2005.
Imposition of Sanctions:
The statute permits and, in some cases, requires that DPNAs or
termination be imposed for homes found out of compliance with federal
quality requirements. Mandatory termination and DPNA are required, as
follows:
* Termination--Termination is required by regulations under the statute
if within 23 days of the end of a survey a home fails to correct
immediate jeopardy deficiencies,[Footnote 23] or within 6 months of the
end of a survey the home fails to correct nonimmediate jeopardy
deficiencies.
* DPNA--A DPNA is required by statute if within 3 months of the end of
a survey a home fails to correct deficiencies and return to compliance
or when a home's last three standard surveys reveal substandard quality
of care.[Footnote 24]
The statute also authorizes CMS to impose discretionary DPNAs and
discretionary terminations in situations other than those specified
above.[Footnote 25] Federal regulations further stipulate that such
discretionary sanctions may be implemented as long as a facility is
given the appropriate notice period. By regulation, the notice period
for implementing both discretionary and mandatory DPNAs and
terminations is 15 days; in cases of immediate jeopardy, however, the
notice period is 2 days.
In imposing sanctions, CMS takes into account four factors: (1) the
scope and severity of the deficiency, (2) a home's prior compliance
history, (3) desired corrective action and long-term compliance, and
(4) the number and severity of all the home's deficiencies. In general,
the severity of the sanction increases with the severity of the
deficiency. For example, for immediate jeopardy deficiencies (J, K, and
L on CMS's scope and severity grid) the regulations require that either
or both temporary management or termination be imposed, and also
permits use of CMPs of from $3,050 to $10,000 per day or $1,000 to
$10,000 per instance of noncompliance. Similarly, for deficiencies at
the actual harm level (G, H, and I on the scope and severity grid) the
regulations require one or a combination of the following sanctions:
temporary management, a DPNA, a per day CMP of $50 to $3,000, or a per
instance CMP of $1,000 to $10,000 per instance of noncompliance. In
addition to these required sanctions, other sanctions can be included;
for example, depending on the severity of the deficiency and a home's
compliance history, it could have a combination of state monitoring, a
DPNA, and a CMP. Finally, CMS is required to consider the immediacy of
sanctions. The statute stipulates that sanctions should be designed to
minimize the time between the identification of violations and the
final imposition of the sanctions.[Footnote 26]
State and CMS Roles in Sanctioning Homes:
Enforcement of nursing home quality-of-care requirements is a shared
federal-state responsibility. In general, sanctions are (1) initially
proposed by the state survey agency based on a cited deficiency, (2)
reviewed and imposed by CMS regional offices, and (3) implemented--that
is, put into effect--by the same CMS regional office, usually after a
required notice period (see fig. 1).[Footnote 27] CMS regional offices
typically accept state-proposed sanctions but can modify them. The
regional office notifies the home by letter that a sanction is being
imposed--that is, its intent to implement a sanction--and the date it
will be implemented. State surveyors may make follow-up visits to the
home to determine whether the deficiencies have been corrected. The CMS
regional office implements the sanctions if the deficiencies are not
corrected. Homes may appeal the cited deficiency and, if the appeal is
successful, the severity of the sanction could be reduced or the
sanction could be rescinded. Homes have several avenues of appeal,
including informal dispute resolution at the state survey agency level
or a hearing before an administrative law judge, as well as before the
Department of Health and Human Services Departmental Appeals Board.
Under CMS policy, homes automatically receive a 35 percent reduction in
the amount of a CMP if they waive their right to appeal before the
Departmental Appeals Board.[Footnote 28]
Figure 1: Federal-State Responsibilities in the Enforcement Process:
[See PDF for image]
Source: GAO.
Notes: States may impose lower-level sanctions, such as state
monitoring, without federal approval. Some state survey agencies also
have the ability to impose federal sanctions such as DPNAs. Nursing
homes are notified of their appeal rights when CMS imposes a sanction.
[End of figure]
CMS Enforcement Initiatives:
In response to our earlier recommendations, CMS undertook a number of
initiatives intended to strengthen enforcement, many of which we
reported on in 2005.[Footnote 29] For example, CMS (1) revised its
revisits policy by requiring surveyors to return to nursing homes to
verify that serious deficiencies had actually been corrected; (2) hired
more staff to reduce the backlog of appeals at the Health and Human
Services Departmental Appeals Boards, the entity that adjudicates
nursing home appeals of deficiency citations; (3) began annual
assessments of state survey activities, known as state performance
reviews, which cover, among other things, the timeliness of sanction
referrals from state survey agencies to CMS regional offices; and (4)
revised its past noncompliance policy for citing and reporting serious
deficiencies that were missed by state surveyors during earlier surveys
of a home.
A key CMS enforcement initiative was the two-stage implementation of an
immediate sanctions policy. In the first stage, effective September
1998, CMS required states to refer for immediate sanction homes found
to have a pattern of harming or exposing residents to actual harm or
potential death or serious injury (H-level or higher deficiencies on
the agency's scope and severity grid) on successive surveys.[Footnote
30] Effective January 2000, CMS expanded the policy, requiring referral
of homes found to have harmed one or a small number of residents (G-
level deficiencies) on successive routine surveys or intervening
complaint investigations.[Footnote 31] After expansion of the immediate
sanctions policy to include G-level deficiencies, it became known as
the double G immediate sanctions policy.
CMS also took steps to improve its ability to manage and oversee the
enforcement process. Our 1999 report described how CMS regions and
states were using their own systems to track sanctions rather than
CMS's OSCAR database. Regional office systems ranged from manual, paper-
based records to complex computer programs; none of the four states
included in our 1999 report had tracking systems compatible with OSCAR
or the regional office systems in use. Until it implemented a new
enforcement data collection system, CMS used LTC, an interim
enforcement tracking system developed and first used by its Chicago
regional office. LTC was operational in all 10 regions by January 2000.
CMS's enforcement data collection system--AEM--replaced LTC and was
implemented 4 years later, on October 4, 2004.
Recognizing the need to focus more attention on homes that historically
provided poor care, CMS designed and launched a Special Focus Facility
program in January 1999, instructing states to select 2 homes each for
enhanced monitoring. Surveys were to be conducted at 6-month intervals
rather than annually. In September 2000, CMS reported that semiannual
surveys had been conducted at a little more than half of the original
110 facilities. In late 2004, CMS modified the program by (1) expanding
its scope to include more homes, (2) revising the selection criteria
for homes, and (3) strengthening sanctions for homes that did not
improve within 18 months. In a relevant but unrelated initiative, CMS
established a voluntary program to help nursing homes improve the
quality of care provided to residents. In 2002, Medicare Quality
Improvement Organizations (QIO) began working intensively on issues
such as preventing pressure sores and pain management with 10 percent
to 15 percent of nursing homes in each state.[Footnote 32] Responding
to concerns that QIOs were not working with homes that needed the most
help, CMS established a separate pilot program in 2004; QIOs worked for
12 months with 1 to 5 nursing homes with significant quality problems
in 18 states to help them redesign their clinical practices. Unlike the
Special Focus Facility program, the participation of homes in the pilot
was voluntary. To distinguish it from the Special Focus Facility
program, the pilot was known as the Collaborative Focus Facility
program.
Number of Sanctions Has Decreased:
Among the homes we reviewed in four states, the number of implemented
sanctions and serious deficiencies declined across two time periods--
fiscal years 2000 through 2002 and fiscal years 2003 through 2005.
Federal data show similar declines for homes nationwide, a trend
consistent with the decline in the proportion of homes cited for
serious deficiencies that generally result in sanctions.[Footnote 33]
Despite the decline in the number of serious deficiencies, the homes we
reviewed generally were cited for more deficiencies that caused harm to
residents than other homes in the four states. While the numbers of
implemented CMPs and DPNAs at the homes we reviewed declined across the
two time periods, the amount of CMPs paid increased. Not all imposed
sanctions for these homes were implemented, however, which may reduce
the deterrent effect of sanctions; in fact, we found that the
implementation rate of certain sanctions, such as DPNAs, decreased. The
deterrent effect of sanctions for the homes was further eroded because
CMS generally imposed CMPs on the lower end of the allowable dollar
range and did not exercise its authority to use discretionary DPNAs and
terminations, allowing the homes more opportunities to escape sanctions
prior to implementation.
Sanctions Have Declined Nationwide:
Among all nursing homes nationwide, sanctions declined across the two
time periods--fiscal years 2000 through 2002 and fiscal years 2003
through 2005.[Footnote 34] Implemented terminations declined the most
across the two time periods (about 41 percent) and CMPs declined the
least (about 12 percent), while the number of DPNAs declined by about
31 percent. In the same time periods, the average number of serious
deficiencies per home declined by about 33 percent nationwide, from
about 0.8 to about 0.5. These downward trends are also consistent with
the nationwide decline in the proportion of homes with serious
deficiencies--from about 28 percent in fiscal year 2000 to about 17
percent in fiscal year 2005 (see app. II). While the reported decline
in serious deficiencies and the proportion of homes cited for such
deficiencies may be due to improved quality, our earlier reports noted
similar declines that masked (1) understatement of serious quality
problems, and (2) inconsistency in how states conduct surveys.[Footnote
35] For example, our current analysis found that the proportion of
homes cited for serious deficiencies ranged from a low of about 4
percent in Florida to a high of about 44 percent in Connecticut during
fiscal year 2005.[Footnote 36] Across the four states we reviewed, the
proportion of homes with serious deficiencies in fiscal year 2005
ranged from 8 percent in California to 23 percent in Michigan. As we
previously reported, such disparities are more likely to reflect
inconsistency in how states conduct surveys rather than actual
differences in the quality of care provided by homes.[Footnote 37] In
addition, in commenting on a draft of this report, CMS noted concerns
about whether the immediate sanctions policy has had a negative effect
on state citations of serious deficiencies.
Decline in Sanctions and Deficiencies for the Homes Reviewed Is
Consistent with Nationwide Trends:
The number of implemented sanctions at the homes we reviewed as well as
the number of serious deficiencies cited in these homes declined across
two time periods--fiscal years 2000 through 2002 and fiscal years 2003
through 2005--consistent with nationwide trends.
Deficiency trends. The average number of serious deficiencies per home
we reviewed decreased from about 1.8 in fiscal years 2000 through 2002
to about 0.7 in fiscal years 2003 through 2005, about a 61 percent
decline; this decline was consistent with the national trend. During
both time periods, however, the homes we reviewed generally performed
more poorly than other homes in their states, having, on average, more
G-level or higher deficiencies and more double Gs. For example, the
Texas homes we reviewed had on average 1.3 times as many G-level or
higher deficiencies as all other homes in the state and the California
homes we reviewed had on average 3 times as many as all other
California nursing homes.[Footnote 38]
CMP trends. Due in part to the closure of some poorly performing homes
and the citation of fewer serious deficiencies, the homes we reviewed
had fewer CMPs in fiscal years 2003 through 2005 than in the prior 3
fiscal years, but the amount paid was higher (see table 4). Among the
homes, the number of implemented CMPs declined by about 42 percent from
the first to the second time period. Although the number of CMPs among
the homes we reviewed decreased, the amount of CMPs paid in Michigan
more than doubled between the two time periods, accounting for much of
the increase in the amount of CMPs paid across the two time periods
(see app. III). States' preferences for either state or federal CMPs
may in part affect their use. In Michigan, state officials are more
likely to use federal CMPs and implement them in greater amounts than
other states we reviewed. In contrast, the 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.[Footnote 39] 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. The Texas state survey agency does
not recommend more than one type of money penalty for the same
deficiency and chooses among one of two state money penalties or a
federal CMP.[Footnote 40]
Table 4: Sanctions Implemented for Homes Reviewed, Fiscal Years 2000-
2002 and 2003-2005:
Sanction: CMP[A,B];
Fiscal years 2000-2002: Number: 93;
Fiscal years 2000-2002: Duration/ amount paid: $534,527;
Fiscal years 2003- 2005: Number: 54;
Fiscal years 2003-2005: Duration/ amount paid: $617,552;
Percentage change in number between two time periods: -42%.
Sanction: DPNA[C];
Fiscal years 2000-2002: Number: 52;
Fiscal years 2000-2002: Duration/ amount paid: 2,451days;
Fiscal years 2003-2005: Number: 30;
Fiscal years 2003-2005: Duration/ amount paid: 1,245 days;
Percentage change in number between two time periods: -42%.
Sanction: Involuntary termination;
Fiscal years 2000-2002: Number: 1;
Fiscal years 2000-2002: Duration/ amount paid: NA;
Fiscal years 2003-2005: Number: 1;
Fiscal years 2003-2005: Duration/ amount paid: NA;
Percentage change in number between two time periods: 0%.
Source: GAO analysis of LTC data, AEM, CMS regional office and state
enforcement case files, and CMPTS.
Note: Includes homes that were open for at least part of the 6-year
period.
NA = Not applicable.
[A] Includes per day and per instance CMPs.
[B] Amount paid for CMPs implemented in these fiscal years.
[C] Includes mandatory and discretionary DPNAs.
[End of table]
DPNA trends. The number of DPNAs declined by 42 percent from fiscal
years 2000 through 2002 to fiscal years 2003 through 2005 for the homes
we reviewed. Overall, the duration of the DPNAs decreased by 12 percent
from the first to the second time period. The duration of DPNAs among
the Texas homes we reviewed decreased the most--from an average of 46
days in the first time period to an average of 26 days in the second
time period. The duration of DPNAs among the Michigan and Pennsylvania
homes also decreased (see app. III). In California, however, the DPNAs
were in effect longer in the second time period--from an average of 39
days in fiscal years 2000 through 2002 to an average of 63 days in
fiscal years 2003 through 2005. As a result, homes in California were
out of compliance for longer periods of time.
Termination trends. Only two of the homes we reviewed closed
involuntarily--that is, they were terminated for cause by CMS because
of health and safety issues. One of the two homes has since been
certified to participate in Medicare again.[Footnote 41] An additional
nine other homes closed voluntarily, although four reopened at some
point during fiscal years 2000 through 2005.[Footnote 42] However, a
home's voluntary closure may not accurately reflect the degree to which
the home had quality problems, such as a history of harming residents,
that put the home at risk of involuntary termination. The reasons for
closure, as recorded by CMS, are general and do not always reflect that
homes may have histories of harming residents and may have been at risk
of involuntary termination.
Implementation Rate of Some Sanctions Has Declined for the Homes
Reviewed:
The implementation rate of DPNAs and terminations declined for the
homes we reviewed, while the implementation rate of CMPs increased
across three time periods (see fig. 2). Some sanctions are never
implemented because CMS rescinds them if homes correct deficiencies
before the implementation date, a situation we noted in our 1999
report.[Footnote 43] Thus, sanctions may be considered more of a threat
than a real consequence of noncompliance.
We compared the implementation rates of CMPs, DPNAs, and terminations
across three time periods: (1) July 1995 to October 1998, the time
period covered in our March 1999 report;[Footnote 44] (2) fiscal years
2000 through 2002; and (3) fiscal years 2003 through 2005. From the
first time period to the third, the implementation rate for DPNAs
declined by about 20 percent and the implementation rate for
terminations declined by about 97 percent. In contrast, across the same
time periods, the overall implementation rate for CMPs increased from
32 percent in the first time period to 86 percent in the third time
period, an almost threefold increase. The timing of this increase
coincides with the January 2000 implementation of the immediate
sanctions policy, suggesting that the increase may in part be related
to the policy's implementation.
Figure 2: Percentage of Implemented Sanctions for Homes Reviewed Over
Three Time Periods (July 1995-October 1998, Fiscal Years 2000-2002, and
Fiscal Years 2003-2005):
[See PDF for image]
Source: GAO analysis of LTC, OSCAR, and CMS regional office and state
enforcement case files.
[End of figure]
CMS Did Not Take Advantage of the Full Range of Sanctions for the Homes
Reviewed:
Among the homes we reviewed, CMS did not use the full range of its
sanctions authority, generally imposing CMPs on the lower end of the
allowable range.[Footnote 45] In addition, CMS imposes DPNAs and
involuntary terminations when they are mandatory, but generally not
when they are discretionary. Homes subject to such mandatory sanctions
have more opportunities to escape sanctions prior to implementation.
The median per instance CMP implemented was $2,000 in fiscal years 2000
through 2002 and $1,750 in fiscal years 2003 through 2005, although the
maximum per instance CMP can be as high as $10,000. The median per day
CMP implemented for nonimmediate jeopardy deficiencies was $500 in
fiscal years 2000 through 2002 and $350 in fiscal years 2003 through
2005, significantly below the maximum of $3,000 per day. In cases in
which homes were cited for immediate jeopardy and the maximum potential
per day CMP is $10,000, the median per day CMP implemented was $3,050
in fiscal years 2000 through 2002 and $5,050 in fiscal years 2003
through 2005. According to one CMS official, the agency generally
hesitates to impose CMPs that are higher than $200 per day, in part
because of concerns that higher per day CMPs could bankrupt some
homes.[Footnote 46] But the same official noted that the CMPs being
imposed are not enough to "make nursing homes take notice" or to deter
them from deficient practices. Another CMS official stated that some
homes consider CMPs a part of the "cost of doing business" or as having
no more effect than a "slap on the wrist." Table 5 provides examples of
homes we reviewed with implemented CMPs that were at the low end of the
allowable CMP range.
Table 5: Examples of Homes with Low Implemented CMPs:
Home's location: Michigan;
Surveyors' comments: "A significant medication error occurred when
resident #8 was administered [the wrong medication] over a three day
period. The resident experienced hypoglycemia and required
hospitalization. Upon return from the hospital there was evidence of
actual harm: a decline in ability to perform activities of daily
living.";
Summary of deficiencies: 1 G;
CMP implemented: $1,500 per instance;
Allowable CMP range: $1,000 - $10,000 per instance of noncompliance.
Home's location: Texas;
Surveyors' comments: "Facility nurse aides failed to promptly report an
allegation of possible sexual abuse. Resident reported the incident to
two nurse aides, however, it was not reported. Also, reference checks
were not documented for 4 employees and 4 employees had not attended an
inservice [training session] on abuse.";
Summary of deficiencies: 3 F, 1 E;
CMP implemented: $250 per day for 150 days;
Allowable CMP range: $50 - $3,000 per day for noncompliance other than
immediate jeopardy.
Home's location: Texas;
Surveyors' comments: "There was an [immediate jeopardy deficiency for
staff mistreatment of residents]. There was a failure to monitor
residents in distress.";
Summary of deficiencies: 1 L (immediate jeopardy), 9 G;
CMP implemented: Immediate jeopardy: $3,050 per day for 14 days; After
immediate jeopardy removed: $400 per day for 86 days; $300 per day for
46 days; $50 per day for 6 days;
Allowable CMP range: $3,050 - $10,000 per day for immediate jeopardy;
$50 - $3,000 per day for nonimmediate jeopardy.
Source: GAO analysis of CMS regional office and state case files and
LTC.
Note: In addition to CMPs, CMS also imposed DPNAs and terminations--
either mandatory or discretionary. All of the DPNAs but none of the
terminations were implemented.
[End of table]
CMS is likely to impose DPNAs and terminations only when required to do
so. However, CMS also has broad authority to impose DPNAs and
terminations at its discretion, which can facilitate quicker
implementation. Discretionary DPNAs and terminations can be implemented
any time after a survey if the sanction is appropriate for the cited
deficiencies and the required notice period is met. In contrast, the
soonest that mandatory DPNAs and terminations for nonimmediate jeopardy
can be implemented is 3 and 6 months, respectively, after the survey on
which the deficiencies were cited.[Footnote 47] Despite the greater
expediency of discretionary DPNAs, 64 percent of the DPNAs CMS imposed
were mandatory for fiscal years 2000 through 2005 for the homes we
reviewed. For example, CMS imposed a total of six DPNAs during fiscal
years 2000 through 2003 on a Pennsylvania home with demonstrated
compliance problems. Of those six DPNAs, the first five were mandatory
DPNAs. Only the last DPNA--imposed after multiple years of repeated
noncompliance at the G-level or higher--was a discretionary DPNA.
Moreover, CMS imposed significantly more mandatory terminations than
discretionary terminations; in fiscal years 2000 through 2005, 118
mandatory and 5 discretionary terminations were imposed on the homes we
reviewed.[Footnote 48] None of the mandatory terminations were
implemented, but 2 discretionary terminations were implemented--one
each in Michigan and Texas.[Footnote 49] An official from the Texas
state survey agency said that the CMS regional office in Dallas prefers
to impose mandatory terminations, unless there is cause to believe
there will be no improvements in the care provided by the nursing home.
Mandatory terminations give homes 6 months to correct deficiencies
before being implemented, as opposed to discretionary terminations,
which can be implemented more quickly.
Even when CMS imposes terminations, their deterrent effect is weakened
because the agency sometimes extends the termination dates. For
example, CMS extended the discretionary termination dates for up to 6
months for some of the Texas homes we reviewed if the nursing homes had
lower-level deficiencies on subsequent surveys. The termination date
imposed on one Texas nursing home we reviewed was extended three times
in fiscal year 2001 from the original date of April 18 to June 26, then
to July 26, and finally to September 26. The first extension occurred
because the home corrected the deficiencies that caused immediate
jeopardy cited during the first survey. Therefore, despite the fact
that this home continued to be found out of compliance for deficiencies
such as mistreatment or neglect of residents during subsequent surveys,
CMS extended the termination date twice to give the home an additional
opportunity to correct those deficiencies and achieve substantial
compliance. The termination ultimately was rescinded because the home
corrected the deficiencies, but the home was subsequently cited for
eight G-level deficiencies such as inadequate treatment or prevention
of pressure sores, employing convicted abusers, and poor accident
supervision or prevention. In 2004, the home closed voluntarily.
Despite Changes in Federal Enforcement Policy, Many Homes Continued to
Cycle In and Out of Compliance:
Despite changes in federal enforcement policy, almost half of the homes
we reviewed--homes with prior serious quality problems--continued to
cycle in and out of compliance, continuing to harm residents. These
homes corrected deficiencies only temporarily and, despite having
sanctions implemented, were again found to be out of compliance during
subsequent surveys. Our analysis also showed that in some cases the
double Gs did not result in immediate sanctions as required, even
though about 40 percent of the homes were cited for double Gs during
fiscal years 2000 through 2005. In addition, the term "immediate
sanctions policy" is misleading because the policy requires only that
sanctions be imposed, that is, that homes be notified immediately of
CMS's intent to implement sanctions, not that sanctions must be
implemented immediately. Furthermore, when a sanction is implemented
for a double G citation, there is a lag time between when the double G
occurs and the sanction's effective date. CMS cited double Gs multiple
times at several of the homes we reviewed, suggesting that immediate
sanctions did not deter future noncompliance as intended. Terminations
of homes is infrequent, in part because of concerns such as local
access to other nursing facilities and the effect on residents if they
are moved, and in part because CMS allows some problem homes to
continue operating until the homes eventually close voluntarily.
Many Homes Cycled In and Out of Compliance, Continuing to Harm
Residents:
Consistent with our earlier work, our current analysis showed that
sanctions appear to have induced homes to correct deficiencies only
temporarily because surveyors found that many of the homes we reviewed
with implemented sanctions were again out of compliance on subsequent
surveys.[Footnote 50] Commenting on this phenomenon, state survey
agency officials said that improvements resulting from sanctions might
last about 6 months. From fiscal years 2000 through 2005, 31 of the 63
homes we reviewed (about 49 percent) cycled in and out of compliance
more than once, harming residents, even after sanctions had been
implemented, including 8 homes that did so seven times or more (see
fig. 3).
Figure 3: Frequency that Reviewed Homes Cycled In and Out of
Compliance, Fiscal Years 2000-2005:
[See PDF for image]
Source: GAO analysis of LTC, OSCAR, and CMS regional office and state
enforcement case files.
Note: This figure illustrates the concept of a yo-yo pattern of
compliance. While the time periods that a home is in or out of
compliance appear to be of uniform duration, the duration can vary.
[End of figure]
Each of the 31 homes that cycled in and out of compliance more than
once during the period we reviewed had at least one G-level or higher
deficiency in at least one period of noncompliance; 19 had at least one
G-level or higher deficiency in every noncompliance period. Table 6
shows the number and length of noncompliance periods for a Michigan
home we reviewed that cycled in and out of compliance nine times from
fiscal years 2000 through 2005; the home remained open as of November
2006. Appendix IV provides similar examples for homes in California,
Pennsylvania, and Texas. Homes' correction of deficiencies often was
temporary, despite receiving sanctions. Thus, once the homes we
reviewed corrected deficiencies, they maintained compliance for a
median of 133 days and then cycled out of compliance again. Some homes
cycled out of compliance more quickly--homes were again out of
compliance in 30 days or less about 8 percent of the time and within 60
days about 28 percent of the time.
Table 6: Example of a Michigan Nursing Home That Frequently Cycled In
and Out of Compliance and Was Still Open as of November 2006:
Noncompliance period in fiscal years 2000-2005 (no. of days): 1[ST] (41
days);
Examples of the nature of deficiencies[A]:
* Inadequate treatment or prevention of pressure sores;
* Poor quality of care;
Summary of G-level or higher deficiencies: 1 G;
Enforcement action implemented[B]: * Per instance CMP ($1,000).
Noncompliance period in fiscal years 2000-2005 (no. of days): 2nd (185
days);
Examples of the nature of deficiencies[A]:
* Poor nutrition;
* Poor quality of care;
Summary of G-level or higher deficiencies: 1 G;
Enforcement action implemented[B]:
* 1[ST] per day CMP ($10,000/day);
* 2nd per day CMP ($100/day);
* Per instance CMP ($1,500);
* Mandatory DPNA (109 days).
Noncompliance period in fiscal years 2000-2005 (no. of days): 3rd (176
days);
Examples of the nature of deficiencies[A]:
* Inadequate treatment or prevention of pressure sores;
* Poor accident supervision or prevention;
Summary of G-level or higher deficiencies: 5 G;
Enforcement action implemented[B]:
* Per instance CMP ($10,000);
* Mandatory DPNA (85 days).
Noncompliance period in fiscal years 2000-2005 (no. of days): 4th (158
days);
Examples of the nature of deficiencies[A]:
* Resident abuse;
* Employing convicted abusers;
Summary of G-level or higher deficiencies: 1 J (immediate jeopardy), 3
G;
Enforcement action implemented[B]:
* 1[ST] per day CMP ($850/day);
* 2nd per day CMP ($3,500/day);
* 3rd per day CMP ($1,000/day);
* Discretionary DPNA (127 days).
Noncompliance period in fiscal years 2000-2005 (no. of days): 5[TH]
(107 days);
Examples of the nature of deficiencies[A]:
* Resident abuse;
* Failure to provide necessary services for daily living;
Summary of G-level or higher deficiencies: 3 H, 3 G;
Enforcement action implemented[B]:
* Per day CMP ($200/day);
* Discretionary DPNA (74 days).
Noncompliance period in fiscal years 2000-2005 (no. of days): 6[TH] (94
days);
Examples of the nature of deficiencies[A]:
* Poor accident supervision or prevention;
Summary of G-level or higher deficiencies: 1 G;
Enforcement action implemented[B]:
* Per day CMP ($350/day);
* Discretionary DPNA (62 days).
Noncompliance period in fiscal years 2000-2005 (no. of days): 7[TH]
(127 days);
Examples of the nature of deficiencies[A]:
* Failure to provide necessary services for daily living;
* Poor accident supervision or prevention;
Summary of G-level or higher deficiencies: 1 J (immediate jeopardy), 1
G;
Enforcement action implemented[B]:
* 1[ST] per day CMP ($3,550/day);
* 2nd per day CMP ($450/day);
* Mandatory DPNA (35 days).
Noncompliance period in fiscal years 2000-2005 (no. of days): 8[TH] (89
days);
Examples of the nature of deficiencies[A]:
* Inadequate treatment or prevention of pressure sores;
* Employing convicted abusers;
* Medication errors;
Summary of G-level or higher deficiencies: 2 G;
Enforcement action implemented[B]:
* Per day CMP ($500/day);
* Discretionary DPNA (59 days).
Noncompliance period in fiscal years 2000-2005 (no. of days): 9[TH] (83
days);
Examples of the nature of deficiencies[A]:
* Inadequate treatment or prevention of pressure sores;
* Medication errors;
Summary of G-level or higher deficiencies: 1 H;
Enforcement action implemented[B]:
* Per day CMP ($750/day);
* Discretionary DPNA (51 days).
Source: GAO analysis of OSCAR, ETS, and AEM data.
Note: The table only includes federal sanctions imposed and
implemented; sanctions imposed but not implemented and state sanctions
are not included.
[A] Examples of the nature of deficiencies include D-level or higher
deficiencies.
[B] In a number of cases, more than one per day CMP is listed because
CMS can raise or lower per day CMP amounts based on changes in
deficiencies.
[End of table]
Relatively Few Homes Reviewed Were Cited for Double Gs:
Despite the large number of G-level or higher deficiencies cited for
the homes we reviewed, relatively few of these homes were cited for
double Gs, and some double G citations did not result in sanctions.
Over the 6-year period, 27 of the homes we reviewed had 69 double Gs.
However, 47 of the homes had 444 G-level or higher deficiencies. We
found no record that CMS imposed a sanction for 15 of the 69 double Gs,
but the data did show that CMS implemented sanctions for the remaining
double G cases.[Footnote 51]
Across the four states we reviewed, there was variation in the citation
of G-level or higher deficiencies and the implementation of immediate
sanctions. For example, from fiscal years 2000 through 2005, 35 percent
of G-level or higher deficiencies and 52 percent of double Gs among the
homes we reviewed were cited in Michigan, while 9 percent of the G-
level or higher deficiencies and 4 percent of the double Gs were cited
in homes in California. In California, complaints typically are
investigated under state licensure authority and the findings generally
are not recorded in the same manner as deficiencies cited under the
federal process,[Footnote 52] which may contribute to lower double G
citation rates in the state.[Footnote 53] Thus, California homes are
not cited for a double G when the subsequent deficiency equivalent to a
G-level or higher deficiency was found during a complaint
investigation.[Footnote 54] Complaint surveys with G-level or higher
deficiencies often lead to double Gs. One CMS official stated that if
complaints against California nursing homes were investigated under the
federal complaint investigation procedure, more double Gs would be
cited in California.[Footnote 55] The California Department of Health
Services conducted a pilot to test the use of the federal complaint
procedure in select district offices, in part because of the low double
G citation rate. As of November 2006, the department decided not to
expand or complete a formal evaluation of the pilot; instead, the
department is focusing on eliminating its backlog of complaints and
initiating complaint investigations within required time
frames.[Footnote 56]
Immediate Sanctions Often Not Immediate and Do Not Appear to Deter
Noncompliance:
Although referred to as the "immediate sanctions" policy, the term is
misleading because (1) there is a lag between when the double G is
cited and when the sanction is implemented, negating the sanction's
immediacy; (2) the policy only requires that sanctions be imposed
immediately, which does not guarantee that the sanction will be
implemented; and (3) homes may not actually pay a CMP, the most
frequently implemented sanction, until years after citation of the
double G because payment is suspended until after appeals have been
adjudicated. Delays in implementing DPNAs and in collecting CMPs--which
diminish their immediacy--coupled with their nominal amounts may
undermine their deterrent effect.
Immediate sanctions often are not immediate because there is a lag time
between the identification of deficiencies during the survey and when a
sanction (i.e., a CMP or DPNA) is actually implemented.[Footnote 57]
CMS implemented about 68 percent of the DPNAs for double Gs among the
homes we reviewed during fiscal years 2000 through 2005 more than 30
days after the survey (see app. V). In contrast, CMPs can go into
effect as early as the first day the home was out of compliance, even
if that date is prior to the survey date, because, unlike DPNAs, CMPs
do not require a notice period.[Footnote 58] About 98 percent of CMPs
imposed for double Gs took effect on or before the survey date. Figure
4 illustrates the lag time that can occur between the survey date and
the implementation date of the sanction, especially with regard to
DPNAs. For example, in fiscal years 2000 through 2005, 60 percent of
the DPNAs in the homes we reviewed were implemented 31 to 60 days from
the date of the survey citing deficiencies. In contrast, nearly all
CMPs were implemented on or before the survey date.
Figure 4: Number of Days between Survey and Implementation of CMPs and
DPNAs among Homes Reviewed, Fiscal Years 2000-2005:
[See PDF for image]
Source: GAO analysis of LTC, OSCAR, and CMS regional office and state
enforcement case files.
Note: CMPs can take effect prior to the date of the survey, if the date
of noncompliance can be established. In cases where an appeal has
changed the determination of the date of noncompliance, the
implementation date of CMPs would be modified accordingly. Some CMPs
and DPNAs were not included in this analysis because implementation
dates were not available.
[End of figure]
While the immediate sanctions policy requires that sanctions be imposed
immediately, it is silent on how quickly sanctions should be
implemented. A sanction is considered imposed when a home is notified
of CMS's intent to implement a sanction--15 days from the date of the
notice. If during the 15-day notice period the nursing home corrects
the deficiencies, no sanction is implemented. Thus, even under the
immediate sanctions policy, which is intended to eliminate grace
periods for nursing homes repeatedly cited for deficiencies at the
actual harm level or higher, nursing homes have a de facto grace
period.
While CMPs can be implemented closer to the date of survey than DPNAs,
the immediacy and the effect of CMPs may be diminished by (1) the
significant time that can pass between the citation of deficiencies on
a survey and the home's payment of the CMP and (2) the low amounts
imposed, as described earlier in this report.[Footnote 59] By statute,
payment of CMPs is delayed until appeals are exhausted.[Footnote 60]
For example, a Michigan home did not pay its CMP of $21,600 until more
than 2 years after a February 2003 survey had cited a G-level
deficiency.[Footnote 61] (See fig. 5.) The February G-level citation
was a repeat deficiency: less than a month earlier, the home had
received another G-level deficiency in the same quality of care area.
The delay in collecting the fine in this case is consistent with a 2005
report from the Office of Inspector General of the Department of Health
and Human Services that found that the collection of CMPs in appealed
cases takes an average of 420 days--a 110 percent increase in time over
nonappealed cases--and "consequently, nursing homes are insulated from
the repercussions of enforcement by well over a year."[Footnote 62]
Unlike the Social Security Act, the federal Surface Mining Control and
Reclamation Act of 1977 provides for the collection of CMPs prior to
exhaustion of administrative appeals.[Footnote 63] Under this statute,
mining operators charged with civil money penalties have 30 days to
either pay the penalty in full or forward the proposed amount for
placement in an escrow account pending resolution of appeals. This
provision, requiring escrow deposit of a proposed penalty assessment,
has been upheld by three federal circuit courts of appeal, all citing
the various procedural safeguards as helping to ensure sufficient due
process to affected operators.[Footnote 64] For example, these courts
cited the availability of an informal conference at which mining
operators may present information relevant to an assessment of a
penalty. It is unclear whether the informal dispute resolution process
available to nursing homes would provide due process similar to that
provided under the Federal Mining statute. Nonetheless, the Social
Security Act would preclude a more expeditious collection of nursing
home CMPs.
Figure 5: Lag Time between Survey and CMP Payment for a Michigan
Nursing Home:
[See PDF for image]
Source: GAO analysis of LTC, OSCAR, and CMS regional office and state
enforcement case files.
[End of figure]
Despite the potentially negative consequences, CMS's implementation of
the immediate sanctions policy does not appear to deter homes from
harming residents in the future. Two-thirds (18) of the 27 nursing
homes cited for double Gs that subsequently had sanctions implemented
went on to be cited again for one or more additional double Gs. (See
fig. 6.)
Figure 6: Number of Homes with One or More Double Gs, Fiscal Years 2000-
2005:
[See PDF for image]
Source: GAO analysis of CMS PDQ.
[End of figure]
Termination Used Infrequently:
Nursing homes, even those that repeatedly harm residents, are
infrequently terminated because of CMS's concerns about access to other
sources of nursing care and the impact of moving residents. Of the
homes we reviewed, two were terminated involuntarily for cause. Another
nine homes closed voluntarily,[Footnote 65] which is not a sanction
because the homes chose to close. However, the actual reason for
closure is not always clear; a home may close to avoid involuntary
termination because of quality problems cited by state
surveyors.[Footnote 66] Allowing a problem home to close voluntarily
rather than terminating it may result in continuing harm to residents
until the home decides to close. For example, two homes we reviewed in
Pennsylvania and Texas closed voluntarily, but the histories of both
homes show that they were repeatedly cited for harming residents from
fiscal year 2000 through the time of their closures, over 4 years later
in January 2004. The Pennsylvania home cycled in and out of compliance
4 times during the period we reviewed and had noncompliance periods
lasting an average of 170 days. The Texas home cycled in and out of
compliance 10 times during the period reviewed and had average
noncompliance periods of 46 days. On average, both homes had about 6 G-
level or higher deficiencies per year in areas such as inadequate
treatment or prevention of pressure sores and resident abuse.[Footnote
67] The home in Pennsylvania had an average of 31 other deficiencies
per year and the Texas home had an average of 27.[Footnote 68]
Four homes we reviewed had similar deficiency histories. Two closed
voluntarily and two remained open as of November 2006 (see table 7).
Although the homes that remained open met the deadline to correct
deficiencies before the termination would have been implemented, a
home's ability to correct deficiencies in a specified period of time
may not be the strongest criteria upon which to determine whether a
home should remain open, because correcting deficiencies does not
ensure that the home will improve residents' quality of care and does
not prevent the home from again falling out of compliance. For example,
the California and Michigan homes in table 7 were still operating as of
November 2006 but cycled in and out of compliance four and seven times,
respectively.
Table 7: Examples of Homes' Deficiency Histories and Termination
Actions, Fiscal Years 2000-2005:
California home[C].
Examples of deficiencies causing harm to residents[A]:
* A resident choked to death when the suction machines that should have
been maintained in working order did not have the requisite parts.
Indeed, during an unannounced inspection 2 days following the death of
this resident, it was noted that there were no functional suction
machines in the facility;
Deficiency history:
* 173 D-level or higher deficiencies;
* Cycled in and out of compliance 4 times;
Enforcement history[B]:
* DPNA (142 days);
* CMP ($193,780);
* Mandatory termination imposed (4 times);
* Discretionary termination imposed (0 times);
Current status: In operation as of November 2006.
Michigan home.
Examples of deficiencies causing harm to residents[A]:
* The facility failed to provide proper respiratory treatment and care
for a resident, resulting in the resident's hospitalization for acute
respiratory failure;
* During an inspection, several residents' pressure sores were observed
to be untreated. For example, one resident had two areas of dead tissue
on his feet. The facility acknowledged that the resident should have
been wearing protective heel pads when in bed, and yet his bare feet
were uncovered, both heels rested directly on the mattress, and he was
not wearing heel protectors, which were lying nearby;
Deficiency history:
* 95 D-level or higher deficiencies;
* Cycled in and out of compliance 7 times;
Enforcement history[B]:
* DPNA (58 days);
* CMP ($40,970);
* Mandatory termination imposed (7 times);
* Discretionary termination imposed (0 times);
Current status: In operation as of November 2006.
Pennsylvania home.
Examples of deficiencies causing harm to residents[A]:
* "Resident eloped and was found on the courtyard froze (sic) to
death.";
* "A resident was found to have bruises on the inner thighs and arms
and appeared to be a victim of abuse. The staff did not report this to
the local police and bathed resident prior to assessment for sexual
abuse.";
Deficiency history:
* 159 D-level or higher deficiencies, fiscal years 2000-2004;
* Cycled in and out of compliance 4 times;
Enforcement history[B]:
* DPNA (229 days);
* CMPs ($47,700);
* Mandatory termination imposed (6 times);
* Discretionary termination imposed (0 times);
Current status: Closed January 2004; Reason for closure: voluntary-
merger/closure.
Texas home.
Examples of deficiencies causing harm to residents[A]:
* "Conditions remain poor, residents are not clean or groomed, drug
errors continue, restorative care is poor. Will give facility the full
6 months to try to come into compliance, continue all remedies.";
Deficiency history:
* 141 D-level or higher deficiencies, fiscal years 2000-2004;
* Cycled in and out of compliance 10 times; Enforcement history[B]:
* DPNA (228 days);
* CMPs ($146,244);
* Mandatory or discretionary termination imposed (10 times)[D];
Current status: Closed January 2004; Reason for closure: voluntary-
merger/closure.
Source: GAO analysis of LTC, OSCAR, CMPTS, and CMS regional office and
state enforcement files.
[A] Statements are from surveyors' notes and are either paraphrased or
direct quotes.
[B] The CMP amount reflects the amount payable by the home, but is not
necessarily the amount the home actually paid.
[C] These data likely understate the quality problems at this home
because California primarily conducts complaint investigations under
its state licensure authority and did not record serious deficiencies
identified during such investigations in OSCAR. In commenting on a
draft of this report, California noted that this home did receive the
highest state deficiency citation and was assessed a state CMP of
$60,000.
[D] Because the Texas data did not always allow us to distinguish
between mandatory and discretionary terminations, we report the total
number of imposed terminations.
[End of table]
According to CMS and state officials, factors that may prevent or delay
termination of problem nursing homes include (1) concerns regarding
lack of access to alternate local nursing facilities, (2) the potential
for resident trauma as a result of transfer to another home, (3) the
preference of residents' families for homes located close by, and (4)
pressure to keep homes open from families and other
stakeholders.[Footnote 69] Our analysis of alternatives to the 4 poorly
performing homes in table 7--those that closed voluntarily or are still
open--showed that there were from 2 to 37 homes within 10 miles of
these homes, and from 5 to 120 homes within 25 miles.[Footnote 70]
Complex Immediate Sanctions Policy and Data Limitations Hamper CMS
Management of Enforcement:
While the goal of enforcement is to help ensure nursing home compliance
with federal quality requirements, CMS management of the process is
hampered by the complexity of its immediate sanctions policy and by its
fragmented and incomplete data systems. The agency's immediate
sanctions policy, intended to deter repeat noncompliance, fails to hold
some homes accountable for repeatedly harming residents. In addition,
although CMS has developed a new data system, the system's components
are not integrated and the national reporting capabilities are not
complete, hampering the agency's ability to track and monitor
enforcement. Finally, CMS has taken some steps intended to improve
enforcement of nursing home quality requirements, such as developing
guidance to help ensure greater consistency across states in CMP
amounts, revising its Special Focus Facility program, and commissioning
two studies to examine the effectiveness of nursing home enforcement.
It is not clear, however, the extent to which--or when--these
initiatives will address the enforcement weaknesses we found.
Immediate Sanctions Policy Is Complex and Fails to Hold Some Homes
Accountable:
The double G immediate sanctions policy is complex and fails to hold
some homes accountable. In 2003, we reported that the early
implementation of the policy was flawed.[Footnote 71] We found that
between January 2000 and March 2002 over 700 cases that should have
been referred for immediate sanctions were not because (1) the policy
was misunderstood by some states and regional offices, (2) states
lacked adequate systems for identifying deficiencies that triggered an
immediate sanction, and (3) actions of two of the four states were at
variance with CMS policy. CMS developed an on-line reporting tool for
use by survey agency and regional office staff to automate the
identification of double Gs.[Footnote 72] CMS also offered training
sessions and issued additional guidance to state survey agencies and
regional offices. While the on-line reporting tool and training were
useful, they did not address the underlying complexity of the policy.
For example, CMS staff told us that in developing the tool they had
initially misinterpreted the double G immediate sanctions policy. As a
result, the tool produced many false positives: that is, it identified
deficiencies as triggering an immediate sanction that in fact did not
occur. Moreover, a December 2005 report by the Office of the Inspector
General of the Department of Health and Human Services also reported
that state survey agency staff continued to have difficulty identifying
double G cases.[Footnote 73]
Furthermore, our analysis of CMS's application of the policy to the
homes we reviewed demonstrated that the policy's complex rules allowed
homes to escape immediate sanctions even if they repeatedly harmed
residents; these rules include (1) the requirement for an intervening
period of compliance, (2) the clearing effect of standard surveys, and
(3) the lack of differentiation between single and multiple instances
of harm. Such rules may in part explain why the homes we reviewed only
had 69 instances of immediate sanctions over a 6-year period, despite
being cited 444 times for deficiencies that harmed residents.
Intervening period of compliance. G-level or higher deficiencies only
count toward a double G immediate sanction if the home has an
intervening period of compliance between the two G-level or higher
deficiencies. In order to receive an immediate sanction, a home has to
achieve substantial compliance between the pair of surveys on which the
G-level or higher deficiencies are cited. As a result of this rule,
homes that do not correct deficiencies do not receive immediate
sanctions, while homes that do correct deficiencies do receive
immediate sanctions. CMS officials stated that the intent of the policy
as written was to give nursing homes a chance to correct deficiencies
and achieve a period of compliance. Without this provision, CMS
officials believe that homes could get caught in endless double G
cycles.
The following example illustrates how the policy allows nursing homes
to escape immediate sanctions if they do not correct deficiencies and
have ongoing noncompliance periods.[Footnote 74]
* In a 9-month time period, a Pennsylvania home had seven surveys, each
with at least one G-level deficiency (a total of 19 G-level
deficiencies).[Footnote 75] However, double G immediate sanctions were
triggered by only two pairs of surveys because the home had failed to
correct some deficiencies before the next survey that again found
actual harm.[Footnote 76] Figure 7 illustrates how some pairs of
surveys with G-level deficiencies do not count as a double G because of
the intervening period of compliance rule. For example, both the March
and April surveys cited G-level deficiencies. However, the pair of
surveys did not result in a double G, which would have triggered
immediate sanctions because the home did not correct the G-level
deficiency cited on the March survey before the next G-level deficiency
was cited in April. Following the April survey, the home corrected the
deficiencies, resulting in a period of compliance. In July, another
survey found a new G-level deficiency. Because of the intervening
period of compliance, the March and July surveys resulted in a double
G, for which immediate sanctions would have been warranted.
Figure 7: Impact of Intervening Periods of Compliance Rule on Immediate
Sanctions for One Pennsylvania Nursing Home, 2000:
[See PDF for image]
Source: GAO analysis of OSCAR and PDQ.
[End of figure]
Clearing effect of standard surveys. Under the double G immediate
sanctions policy, a standard survey without a G-level or higher
deficiency "clears the home's record" for the purposes of determining
whether a double G occurred.[Footnote 77] As a result of this rule,
surveys with G-level or higher deficiencies that occurred before the
standard survey without a G-level or higher deficiency are not
considered in determining whether a double G should be cited and an
immediate sanction should be imposed. CMS officials believe that it is
appropriate for standard surveys without G-level or higher deficiencies
to clear the home's record for double G purposes because standard
surveys are comprehensive and occur regularly. Yet, we have previously
reported that weaknesses in the survey process result in surveyors'
missing serious deficiencies on standard surveys.[Footnote 78]
Moreover, variability among states in the citation of serious
deficiencies suggests that some states may not be citing deficiencies
at the appropriate scope and severity (see app. II). For example,
according to California officials, the guidance the state received from
the CMS regional office created confusion as to what constituted actual
harm, and this confusion contributed to the decline in citations of
serious deficiencies in California. The regional office clarified its
guidance in late 2004.
The following example illustrates how a standard survey without G-level
or higher deficiencies affects double G determinations and how having
uncorrected deficiencies can prevent a home from receiving an immediate
sanction.[Footnote 79]
* In approximately a 12-month period, a Michigan home had five surveys,
four of which had one G-level deficiency. However, the G-level
deficiencies triggered double G immediate sanctions only once instead
of three times because in one instance a standard survey cited no G-
level deficiencies and in the other there was no intervening period of
compliance.[Footnote 80] Figure 8 illustrates how some pairs of surveys
with G-level deficiencies do not count as double Gs because of the
clearing effect of standard surveys. For example, state surveyors found
a G-level deficiency during a January 2000 complaint survey. However,
on the home's standard survey a month later (February 2000), no G-level
or higher deficiencies were found by surveyors. As a result, when
surveyors found another G-level deficiency on a complaint survey
several months later (November 2000), the G-level deficiency on the
home's January survey was not considered, and no immediate sanctions
were triggered. The pair of surveys in January 2000 and November 2000
did not trigger immediate sanctions because, in effect, the February
2000 standard survey cleared the home's record.
Figure 8: Impact of Clearing Effect Rule on Immediate Sanctions for One
Michigan Nursing Home, 2000-2002:
[See PDF for image]
Source: GAO analysis of OSCAR and PDQ.
[End of figure]
Multiple instances of harm. Multiple G-level or higher deficiencies
identified on a survey that results in an immediate sanction are
sometimes treated the same, in terms of enforcement, as a single
instance of harm or immediate jeopardy cited on a survey. We examined
the sanctions imposed for a single versus multiple instances of harm
and found that the sanctions can be quite similar, despite the
significant differences in the number of deficiencies.[Footnote 81] The
following example involves two surveys of a Michigan home with a
history of repeated noncompliance. On a survey with only 1 G-level
deficiency, CMS implemented a $350 per day CMP and a discretionary
DPNA. On a different survey with 33 D-level or higher deficiencies and
6 G-level or higher deficiencies, CMS implemented a $200 per day CMP
and a discretionary DPNA. We found similar examples among other homes
we reviewed.
We discussed our concerns with CMS about how the double G immediate
sanctions policy allows some homes to avoid immediate sanctions. CMS
officials stated that regardless of the policy, state and regional
office officials retain the discretion to impose immediate sanctions
even when not required by the policy. However, based on a discussion
with CMS officials, we believe that, instead of imposing sanctions of
appropriate severity, state and regional office officials may impose
weaker sanctions for problem homes that have escaped immediate
sanctions because of the complexities of the policy. CMS agreed that
this could happen.
CMS Oversight Continues to Be Hampered by Data Limitations:
Fragmented data systems and incomplete national reporting capabilities
continue to hamper CMS's ability to track and monitor enforcement. In
March 1999, we reported that CMS lacked a system for effectively
integrating enforcement data nationwide and that the lack of such a
system weakened oversight.[Footnote 82] Since 1999, CMS has made
progress in developing an enforcement data collection system called the
ASPEN Enforcement Manager (AEM). However, while AEM collects valuable
data from the states and regions, it is not fully integrated with other
CMS systems used to track nursing home survey and enforcement
activities. For example, when regional and state survey officials want
to evaluate complaint and enforcement data, they must access one system
for complaint data and then access another system, AEM, for enforcement
data. Because there is no direct interface between the two systems, CMS
and states must rely on fragmented data systems for tracking and
monitoring enforcement. Furthermore, CMS officials told us that the
agency does not have a concrete plan to use the enforcement data to
improve monitoring and oversight but that some national enforcement
reports are under development.
From 2000 to 2004, CMS tracked sanctions with LTC, a data system
developed in the Chicago region that became operational in all 10 CMS
regions in 2000. LTC was a relatively simple system designed to collect
sanctions data, automatically generate sanction imposition letters, and
automatically calculate the 35 percent reduction in CMPs for homes that
waive the right to appeal deficiencies. LTC was not always useful for
enforcement oversight because it was sometimes incomplete. Data entry
into the LTC system was optional, and many regional and state surveyors
continued to rely on their own, state-specific tracking systems.
Moreover, during the time LTC was in use, states and regions were
expected to continue updating the enforcement component of OSCAR, which
duplicated some of the information in LTC. This required separate
manual data entry into both LTC and OSCAR. We were told by regional
office officials that sometimes only one of the files would be updated.
Furthermore, LTC had no internal quality control checks for ensuring
all fields were completed or that the data were accurate; in its design
of LTC, CMS chose flexibility in modifying the data to accommodate
special circumstances over a more rigid field edits system that would
have controlled the data more tightly.
Since October 1, 2004, CMS has used AEM to collect state and regional
data on sanctions and improve communications between state survey
agencies and CMS regional offices. Specifically, AEM was designed to
provide real-time entry and tracking of sanctions, issue monitoring
alerts, generate enforcement letters, and facilitate analysis of
enforcement patterns. CMS expects that the data collected in AEM will
enable states, CMS regional offices, and the CMS central office to more
easily track and evaluate sanctions against nursing homes as well as
respond to emerging issues. Developed by CMS's central office primarily
for use by states and regions, AEM is one module of a broader data
collection system called ASPEN. There are a number of other modules
under the ASPEN umbrella, including the ASPEN Complaints/Incidents
Tracking System (ACTS) module. The ASPEN modules--and other data
systems related to enforcement such as the financial management system
for tracking CMP collections--are fragmented and lack automated
interfaces with each other. As a result, enforcement officials must
pull discrete bits of data from the various systems and manually
combine the data to develop a full enforcement picture. For example, if
regional office officials want to review a home's complaint history,
they must access ACTS to print a report on complaints, access AEM to
print a report on corresponding sanctions, manually compare the two
reports, and then access the CMP tracking system to determine whether a
corresponding CMP was paid. Each step adds to staff workload.
AEM collects potentially useful enforcement data from the states and
regions, but, as described, CMS has not integrated AEM with the other
data collection systems (e.g., ACTS); furthermore, the agency has not
defined a plan for using the AEM data to inform the tracking and
monitoring of enforcement through national enforcement reports. In a
December 2004 CMS report, the agency stated that AEM "will permit
meaningful comparisons of like measures and will serve as a primary
tool on which to base policy decisions, new initiatives and strategies
for improving care to our Nation's nursing home population."[Footnote
83] While CMS is developing a few draft national enforcement reports,
it has not developed a concrete plan and timeline for producing a full
set of reports that use the AEM data to help in assessing the
effectiveness of sanctions and its enforcement policies. In addition,
while the full complement of enforcement data recorded by the states
and regional offices in AEM is now being uploaded to CMS's national
system, CMS does not intend to upload any historical data. Efforts to
track and monitor enforcement would be greatly enhanced by reports that
contain the historical data; for example, with historical data the
agency could generate reports that provide a longitudinal perspective
of a home's compliance history, compare trends across states and
regions, and, overall, help evaluate the effectiveness of sanctions and
policies. Finally, like LTC, AEM has quality control weaknesses. While
AEM has some automatic quality control mechanisms to ensure that the
data entered are complete and in a valid format, there are no
systematic quality control mechanisms to ensure that the data entered
are accurate. For example, while the system automatically requires the
entry of valid survey dates, CMS does not conduct periodic data audits
to check that the survey dates are correct.
CMS officials told us they will continue to develop and implement
enhancements to AEM to expand its capabilities over the next several
years. However, until CMS develops a plan for integrating the
fragmented systems and for using AEM data--along with other data the
agency collects--efficient and effective tracking and monitoring of
enforcement will continue to be hampered and, as a result, CMS will
have difficulty assessing the effectiveness of sanctions and its
enforcement policies.
Other CMS Initiatives to Improve Enforcement:
In addition to its efforts to implement a new data system for managing
enforcement, CMS has taken other steps to improve its enforcement of
nursing home quality requirements. For example, the agency has
developed guidance to help ensure greater consistency across states in
CMP amounts imposed, revised its Special Focus Facility program, and
commissioned two studies to examine the effectiveness of nursing home
enforcement.[Footnote 84]
To ensure greater consistency in CMP amounts proposed by states and
imposed by regions, CMS, in conjunction with state survey agencies,
developed a grid that provides guidance for states and regions. The CMP
grid lists ranges for minimum CMP amounts while allowing for
flexibility to adjust the penalties on the basis of factors such as the
deficiency's scope and severity, the care areas where the deficiency
was cited, and a home's past history of noncompliance. In August 2006,
CMS completed the regional office pilot of its CMP grid. The results of
the pilot, which are currently being analyzed, will be used to
determine how the grid should be used by states; its use would be
optional to provide states flexibility to tailor sanctions to specific
circumstances.
CMS revised its Special Focus Facility program, an initiative intended
to increase the oversight of homes with a history of providing poor
care. We had previously reported that the program was worthwhile but
that its narrow scope excluded many homes that provide poor
care.[Footnote 85] Moreover, according to CMS, the goal of two surveys
per home per year was never achieved because of the relatively low
priority assigned to the program and the lack of state survey agency
resources. In December 2004, CMS announced three changes in the
operation of the program. First, CMS expanded the scope of the program
from about 100 homes nationwide to about 135 homes by making the number
of Special Focus Facilities in each state proportional to the number of
nursing homes. Second, CMS revised the method for selecting nursing
homes by reviewing 3 years' rather than 1 year's worth of deficiency
data. This change was intended to ensure that the homes in the program
had a history of noncompliance rather than a single episode of
noncompliance. Third, CMS strengthened its enforcement for Special
Focus Facilities by requiring immediate sanctions for homes that failed
to significantly improve their performance from one survey to the next
and by requiring termination for homes with no significant improvement
after three surveys over an 18-month period.[Footnote 86] Despite these
changes, however, many homes that could benefit from enhanced oversight
and enforcement are still excluded from the program. As noted earlier,
few of the homes we reviewed were or are part of CMS's Special Focus
Facilities program. In 2005, only 2 were designated Special Focus
Facilities and in 2006, the number increased to 4. Of the 8 homes that
cycled in and out of compliance seven or more times (see fig. 3), 6 are
still open but only 1 is now a Special Focus Facility. Although CMS now
requires QIOs to work with poorly performing nursing homes, this
initiative also only targets a small number of homes--as few as 1 to 3
facilities in each state.
To enhance its understanding of and ability to improve the enforcement
process, CMS has funded two studies that will examine the steps that
lead to sanctions as well as the impact of enforcement on homes'
quality-of-care processes.
* Qualitative Enforcement Case Studies. This study, which began in the
spring of 2003 and is scheduled to be completed in early 2007, required
research nurses to visit 25 nursing homes in four states to evaluate
how the survey and enforcement processes are carried out and assess the
extent to which the enforcement process results in changes in nursing
staff behavior and improved compliance with federal requirements.
* Impact of Sanctions on Quality. The objective of this study is to
test the effects of sanctions on facility behavior and resident
outcomes. Researchers will identify and compare a group of nursing
homes that had both deficiencies and sanctions to a group of nursing
homes that had similar levels of deficiencies but no sanctions. A year
later, researchers will review the nursing home's subsequent survey to
determine whether the sanctions resulted in any significant changes in
the quality of care delivered. The study began in the fall of 2004 and
the first report is scheduled to be completed by mid-2007.
Although CMS has taken several steps to improve its enforcement of
nursing home requirements, its Nursing Home Compare Web site does not
include information on sanctions. Thus, CMS does not indicate what
sanctions have been implemented against nursing homes, nor does it
identify homes that have received immediate sanctions for repeatedly
harming residents.
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. 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. In
Michigan, state officials are more likely to use federal CMPs and
implement them in greater amounts than other states we reviewed. Texas
state officials often use state rather than federal sanctions for G-
level or higher deficiencies, in part because they cannot propose a
federal CMP if they impose a state sanction and because the total state
money penalty that may be imposed may be higher than federal CMPs.
California had fewer sanctions than Michigan. California typically
investigates complaints under its state licensure authority, which may
partly explain why California has fewer reported deficiencies and
federal sanctions. 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.
Conclusions:
Although CMS has taken steps to strengthen the nursing home enforcement
process, our review of 63 homes in four states with a history of
quality problems identified design weaknesses as well as flaws in the
way sanctions are implemented that diminish their full deterrent
effect. Some of these homes repeatedly harmed residents over a 6-year
period and yet remain in the Medicare and Medicaid programs. 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.
CMS's immediate sanctions policy fails to hold homes with a long
history of harming residents accountable for the poor care provided.
The policy's complexity, such as the requirement for an intervening
period of compliance, prevents its use for the very homes it was
designed to address--those with systemic quality problems. Furthermore,
the immediate sanctions label is misleading because sanctions are not,
in fact, immediate. The notice period required by CMS regulations for
sanctions such as DPNAs and terminations provides homes with a de facto
grace period during which they can correct deficiencies to avoid an
immediate sanction. Moreover, in one state we reviewed, the immediate
sanctions policy does not fully identify all homes with repeat serious
deficiencies because most complaint deficiencies, which can often
trigger a double G, were being cited under state licensure authority,
not federal. Consequently, some problem homes in the state were not
identified by the policy and thus were able to avoid double G immediate
sanctions.
Although CMPs and DPNAs were the most frequently used sanctions
nationwide and for the homes we reviewed, their effectiveness was
undermined by a number of weaknesses. The CMPs levied against the homes
we reviewed were often nominal, significantly less than the maximum
amounts Congress provided for in statute. To strengthen CMPs, CMS has
been developing a CMP grid since 2004 to guide states and regional
offices in determining appropriate CMP amounts, and CMS regional
offices piloted the grid in 2006. However, its implementation is
expected to be optional for states, once again contributing to
interstate variation. Despite the nominal amounts, CMPs, unlike DPNAs,
do not require a notice period and may be imposed retroactively before
the date of the survey. However, these advantages are countered by the
fact that, under the Social Security Act, payment by homes of federally
imposed CMPs is deferred if they appeal their deficiencies, a process
that can take years, diminishing the immediacy of the sanction and
further undermining the sanction's deterrent effect. While there is
precedent under the federal surface mining statute, which permits the
collection of CMPs before exhaustion of appeals, it is unclear if the
informal dispute resolution process available to nursing homes provides
the same type of procedural safeguards that courts have pointed to in
upholding the mining statute provision. Some states choose to use their
own authority to impose state fines, which can sometimes be implemented
faster than is possible under federal law. Although CMS has the
authority to implement discretionary DPNAs after a 15-day notice period
for the homes we reviewed, it did not generally do so. It imposes
mandatory DPNAs when criteria are met, which provide homes a 3-month de
facto grace period to correct deficiencies. Because many homes we
reviewed returned to compliance within 3 months--though often only
temporarily--the DPNAs frequently were rescinded.
Termination--the most powerful enforcement tool--was used infrequently
nationwide and for the homes we reviewed because of states' and CMS's
concerns about potential access to care and resident transfer trauma.
However, we found that some poorly performing homes are located in
areas with several other nearby nursing homes. Even though some homes
we reviewed cycled in and out of compliance numerous times while
continuing to harm residents, CMS allowed them to determine for
themselves whether and when to leave the Medicare and Medicaid
programs. Even when terminations were imposed, their deterrent effect
was undermined by extending some termination dates to give the homes
more time to correct deficiencies. CMS's earlier termination of such
troubled homes could have cut short the cycle of poor care. CMS's
revamped Special Focus Facility program would provide for termination
of poorly performing homes within 18 months if they fail to show
significant improvement in the quality of care provided to residents.
Despite the expansion of the program from about 100 to about 135 homes,
the number of Special Focus Facilities is inadequate because, as our
work has demonstrated, the program still fails to include many homes
with a history of repeatedly harming residents.
Although CMS has made progress in establishing a database to help it
track and monitor the nursing home enforcement process, the development
of AEM is not yet complete. AEM is not integrated with other important
databases to help ensure that CMS has a comprehensive picture of a
home's deficiency history, and CMS has not developed a concrete plan
for using national enforcement reports--built off of AEM data--to help
evaluate the effectiveness of sanctions and its enforcement polices.
Having longitudinal enforcement data available for homes would enable
CMS to pursue increasing the severity of sanctions for homes that
repeatedly harm residents. Furthermore, CMS has not developed a system
of quality checks to ensure the accuracy and integrity of AEM data.
CMS's Nursing Home Compare Web site has been modified a number of times
to add important quality information about nursing homes. While CMS now
summarizes the results from both standard surveys and complaint
investigations, the Web site contains no information about sanctions
implemented against nursing homes, nor does it identify homes that have
received immediate sanctions for repeatedly harming residents. Such
information could be valuable to consumers who use the Web site to help
choose a home for family members or friends.
Recommendations for Executive Action:
To address weaknesses that undermine the effectiveness of the immediate
sanctions policy, we recommend that the Administrator of CMS reassess
and revise the policy to ensure that it accomplishes the following
three objectives: (1) reduce the lag time between citation of a double
G and the implementation of a sanction, (2) prevent nursing homes that
repeatedly harm residents or place them in immediate jeopardy from
escaping sanctions, and (3) hold states accountable for reporting in
federal data systems serious deficiencies identified during complaint
investigations so that all complaint findings are considered in
determining when immediate sanctions are warranted.
To strengthen the deterrent effect of available sanctions and to ensure
that sanctions are used to their fullest potential, we recommend that
the Administrator of CMS take the following three actions:
* Ensure the consistency of CMPs by issuing guidance such as the
standardized CMP grid piloted during 2006.
* Increase use of discretionary DPNAs to help ensure the speedier
implementation of appropriate sanctions.
* Strengthen the criteria for terminating homes with a history of
serious, repeated noncompliance by limiting the extension of
termination dates, increasing the use of discretionary terminations,
and exploring alternative thresholds for termination, such as the
cumulative duration of noncompliance.
To collect CMPs more expeditiously, which could increase their
deterrent effect, we recommend that the Administrator of CMS develop an
administrative process under which CMPs would be paid--or Medicare and
Medicaid payments in equivalent amounts would be withheld--prior to
exhaustion of appeals and seek legislation for the implementation of
this process, as appropriate. Payments could be refunded with interest
if the deficiencies are modified or overturned at appeal.
To strengthen sanctions for homes with a history of noncompliance, such
as a large number of deficiencies or a large number of actual harm and
immediate jeopardy deficiencies, we recommend that the Administrator of
CMS consider further expanding the Special Focus Facility program with
its enhanced enforcement requirements to include all homes that meet a
threshold, established by CMS, to qualify as poorly performing homes.
To improve the effectiveness of its new enforcement data system, we
recommend that the Administrator of CMS take the following three
actions:
* Develop the enforcement-related data systems' abilities to interface
with each other in order to improve the tracking and monitoring of
enforcement, such as by developing an automatic interface between
systems such as AEM and ACTS.
* Expedite the development of national enforcement reports, including
longitudinal and trend reports designed to evaluate the effectiveness
of sanctions and enforcement policies, and a concrete plan for using
the reports.
* Develop and institute a system of quality checks to ensure the
accuracy and integrity of AEM data, such as periodic data audits
conducted as part of CMS's annual state performance reviews.
To improve public information available to consumers that helps them
assess the quality of nursing home care, we recommend that the
Administrator of CMS expand CMS's Nursing Home Compare Web site to
include implemented sanctions, such as the amount of CMPs and the
duration of DPNAs, and homes subjected to immediate sanctions.
Agency and State Comments and Our Evaluation:
We obtained written comments on our draft report from CMS and three of
the four states in which the homes we studied were located--California,
Michigan, and Texas. We also received e-mail comments from the Director
of the Division of Nursing Care Facilities in Pennsylvania. CMS's
comments are reproduced in appendix VI. California's, Michigan's and
Texas's comments are reproduced in appendixes VII, VIII, and IX,
respectively. CMS generally concurred with our 12 recommendations in
six areas intended to strengthen the enforcement process but did not
always specify how it would implement the recommendations. In addition,
CMS noted that implementation of 3 of our recommendations raised
resource issues and that others required additional research.
California concurred with our conclusions and recommendations, while
Michigan and Pennsylvania indicated appreciation or general agreement.
However, most state comments, including Texas's, were technical in
nature. Our evaluation responds to CMS and state comments in the six
areas covered by our recommendations.
Addressing weaknesses in the double G immediate sanctions policy. CMS
agreed that homes that repeatedly harm residents should not escape
immediate sanctions and stated that it would remove the limitation on
applying an additional sanction when a home failed to correct a
deficiency that gave rise to a prior sanction. CMS also agreed to
reduce the lag time between citation and implementation of a double G
immediate sanction by limiting the prospective effective date for DPNAs
to no more than 30 to 60 days. Reducing the lag time as much as
possible is critical because it provides homes with a de facto grace
period in which to correct deficiencies and avoid sanctions. Michigan
commented about the need to increase the immediacy of DPNAs, noting
that even the 15-day notice period associated with discretionary DPNAs
was outdated now that homes are notified electronically and delivery
can be verified. Currently, CMS has an incomplete picture of serious
deficiencies cited against homes that could result in immediate
sanctions because California investigates many nursing home complaints
under state licensure authority. CMS agreed to collect additional
information on complaints for which data are not reported in federal
data systems. We believe that CMS's commitment to do this will help
better identify and deal with consistently poorly performing homes. CMS
commented that the Social Security Act does not provide authority for
CMS to require states to report enforcement actions taken under state-
only authority if federal resources are not used for the complaint
investigation; however, to the extent that federal funds are used for
complaint investigations, our findings and recommendations remain
valid. Michigan concurred that CMS needs the complete compliance
history of a facility to assess its overall performance.
CMS acknowledged that the complexity of its immediate sanctions policy
may be an inherent limitation and indicated that it intends to either
strengthen the policy or replace it with a policy that achieves similar
goals through alternative methods. CMS noted that it is concerned about
whether the immediate sanctions policy has negatively affected the
rates of state deficiency citations and may ultimately be ineffective
with the most problematic facilities. We believe the policy has merit
but that its complex requirements have prevented many homes from
receiving immediate sanctions.
Strengthening the deterrent effect of sanctions. CMS agreed to issue a
CMP analytic tool, or grid, and to provide states with further guidance
on discretionary DPNAs and terminations. The CMP grid is a tool to help
ensure national consistency in CMPs and to assist CMS regional offices
in monitoring enforcement actions. Texas commented that it had been
using the grid since June 2006 and found it to be very helpful.
Michigan noted that it had independently developed and implemented a
CMP grid in 2000 but expressed disappointment that CMS had not mandated
state use of the agency's grid. In addition, Michigan supported the
need for additional CMS guidance on the use of discretionary
termination. Such guidance, it commented, was necessary to ensure a
consistent national approach. In response to our recommendation to
increase the use of discretionary terminations, CMS stated that it will
continue its research to design proposals that yield a more effective
combination of robust enforcement actions but that do not penalize
vulnerable residents. While we encourage CMS's commitment to further
research to improve the effectiveness of enforcement actions, we
believe that CMS must also be committed to protecting residents from
actual harm in poorly performing facilities--including terminating
homes from the Medicare or Medicaid programs--when other steps fail to
ensure the quality of resident care.
Collecting CMPs more expeditiously. CMS agreed to seek legislative
authority to collect CMPs prior to the exhaustion of appeals, which
could increase their deterrent effect. California commented that it
supported this recommendation.
Expanding the Special Focus Facility program. CMS agreed with the
concept of expanding the program to include all homes that meet a
threshold to qualify as poorly performing homes, but said it lacks the
resources needed for this expansion because of decreases in its budget
and increases in both the number of providers and quality assurance
responsibilities for state and federal surveyors. CMS stated that it
envisioned expansion of the program if Congress fully funds the
President's proposed fiscal year 2008 budget for survey and
certification activities. CMS specified other initiatives it will
implement to improve the Special Focus Facility program.
Improving the effectiveness of enforcement data. CMS agreed to develop
and implement a system of quality checks to ensure the accuracy of its
data systems, including AEM. While the agency agreed to study the
feasibility of linking the separate data systems used for enforcement
and to develop other national standard enforcement reports, CMS
indicated that available resources may limit its ability to take
further action on these issues. CMS has already invested significant
resources in developing potentially powerful data systems intended to
improve the tracking and monitoring of enforcement, and we believe the
agency should place a priority on ensuring that these systems operate
effectively.
Improving information available to consumers. Rather than agreeing to
report all implemented sanctions on its Nursing Home Compare Web site,
CMS proposed reporting implemented sanctions only for poorly performing
homes that meet an undefined threshold. CMS's response was therefore
not fully responsive to our recommendation. By only reporting sanctions
for homes that meet a certain threshold--eight or more sanctions in a 3-
year period, in an example provided by CMS--consumers might incorrectly
assume that other homes have received no sanctions. Furthermore, CMS's
plan to post such limited sanctions data in an accessible location on
its Web site is vague. We believe that consumers must be able to easily
link deficiency and sanctions data.
CMS and three of the four states also provided technical comments,
which we incorporated as appropriate.
As arranged with your office, unless you publicly announce its contents
earlier, we plan no further distribution of this report until 30 days
after its issue date. At that time, we will send copies to the
Administrator of the Centers for Medicare & Medicaid Services and
appropriate congressional committees. We will also make copies
available to others upon request. In addition, the report will be
available at no charge on the GAO Web site at http://www.gao.gov.
If you or your staff have any questions about this report, please
contact me at (202) 512-7118 or allenk@gao.gov. Contact points for our
Offices of Congressional Relations and Public Affairs may be found on
the last page of this report. GAO staff who made major contributions to
this report are listed in appendix X.
Sincerely yours,
Signed by:
Kathryn G. Allen:
Director, Health Care:
[End of section]
Appendix I: Scope and Methodology:
This appendix provides a more detailed description of our scope and
methodology and generally follows the order that findings appear in the
report. We analyzed the fiscal years 2000 through 2005 enforcement and
deficiency history for a total of 63 of the 74 nursing homes in four
states--California, Michigan, Pennsylvania, and Texas--whose compliance
history informed the conclusions of our March 1999 report.[Footnote 87]
These homes had a history of providing poor quality care to residents
prior to 1999. We excluded 11 of the original 74 homes from our
analysis because they either closed before fiscal year 2000 or closed
within 6 months of the beginning of fiscal year 2000 and had few or no
deficiencies or sanctions.[Footnote 88] Some of the remaining 63 homes
participated in the Medicare and Medicaid programs for only a portion
of fiscal years 2000 through 2005 because they either closed
permanently or closed temporarily and were subsequently reinstated. For
these homes, we set a criterion that required that the home participate
for at least 6 months of the fiscal year in order for its enforcement
data in that fiscal year to be included in our analysis. Table 8 shows
the distribution of homes across the four states in our 1999 report,
the distribution of those homes for this report, and the number of
providers participating for at least 6 months by fiscal year. Although
the table shows some year-to- year fluctuation in the number of
providers, the changes do not significantly influence our findings.
While the focus of our analysis was the compliance history of these 63
homes, we also analyzed general trends in (1) implemented sanctions
nationwide for the same 6-year period and (2) the proportion of homes
in each state cited for serious deficiencies--that is, those at the
actual harm or immediate jeopardy level.
Table 8: Number of Nursing Homes Reviewed in 1999 That Were Included in
Our Analysis for This Report, by State:
State: California;
1999 report: 12;
Current report: Any participation in fiscal years 2000-2005: 10;
Current report: 2000: 10;
Current report: 2001: 10;
Current report: 2002: 10;
Current report: 2003: 10;
Current report: 2004: 10;
Current report: 2005: 10.
State: Michigan;
1999 report: 18;
Current report: Any participation in fiscal years 2000-2005: 16;
Current report: 2000: 14;
Current report: 2001: 14;
Current report: 2002: 13;
Current report: 2003: 13;
Current report: 2004: 12;
Current report: 2005: 13.
State: Pennsylvania;
1999 report: 17;
Current report: Any participation in fiscal years 2000-2005: 14;
Current report: 2000: 14;
Current report: 2001: 13;
Current report: 2002: 13;
Current report: 2003: 12;
Current report: 2004: 10;
Current report: 2005: 10.
State: Texas;
1999 report: 27;
Current report: Any participation in fiscal years 2000-2005: 23;
Current report: 2000: 23;
Current report: 2001: 22;
Current report: 2002: 22;
Current report: 2003: 23;
Current report: 2004: 22;
Current report: 2005: 22.
State: Total;
1999 report: 74;
Current report: Any participation in fiscal years 2000-2005: 63;
Current report: 2000: 61;
Current report: 2001: 59;
Current report: 2002: 58;
Current report: 2003: 58;
Current report: 2004: 54;
Current report: 2005: 55.
Source: GAO.
[End of table]
CMS deficiency data. To determine the number, scope, and severity of
deficiencies cited for the 63 homes, we analyzed OSCAR (On-Line Survey,
Certification, and Reporting system) deficiency data resulting from
standard surveys and complaint investigations. We also used OSCAR data
on deficiencies identified during standard surveys to analyze state
trends in the proportion of nursing homes cited for actual harm or
immediate jeopardy during fiscal years 2000 through 2005. Because a
home may be surveyed more than once a year, we counted a home only once
if it was cited for actual harm or immediate jeopardy on more than one
survey during the year. CMS officials generally recognize OSCAR data to
be reliable. We have used OSCAR data in our prior work to examine
nursing home quality.
CMS enforcement data and reliability issues. Because CMS used multiple
data systems during the 6-year period we reviewed and because of data
reliability issues, such as incomplete or inaccurate data, we used
several sources to validate and analyze the enforcement history of the
63 homes. Based on discussions with CMS regional staff who were
responsible for inputting the data, our primary data source for homes
in California, Michigan, and Pennsylvania for the period fiscal years
2000 through 2004 was the Long Term Care Enforcement Tracking System
(LTC).[Footnote 89] Because CMS's Dallas regional office expressed
concern about reliability of LTC data in the region, we relied
primarily on regional office and state enforcement case files for the
Texas homes we reviewed. CMS phased out use of LTC at the end of fiscal
year 2004 and began using Aspen Enforcement Manager (AEM) to track
sanctions. We obtained data for fiscal year 2005 sanctions from the
limited AEM data stored in the OSCAR enforcement file. To clarify data
from LTC or AEM and to perform some basic data checks, we relied on
regional office and state enforcement case files and made adjustments
as appropriate. We discussed the reliability of LTC and AEM enforcement
data with CMS and state survey agency officials. CMS informed us that
the data generally were reliable. We determined that the data were
sufficiently reliable to assess broad trends in implemented sanctions
nationwide, and to analyze sanctions among the 63 homes we reviewed
because we could conduct checks of the homes' enforcement data using
CMS regional office and state case files. Because we could not conduct
such checks of the data in all 50 states and the District of Columbia,
we did not analyze trends across the individual states.
Trends in sanctions. Based on our assessment of data reliability, we
determined that we could assess broad trends in implemented sanctions
nationwide, but because we could not conduct checks of the data in all
50 states and the District of Columbia, we did not analyze trends
across the states. For the homes we reviewed, using data from LTC, AEM,
and regional office and state enforcement case files as described
above, we analyzed the number of civil money penalties (CMP), denial of
payments for new admissions (DPNA), and terminations implemented over
two 3-year time periods--fiscal years 2000 through 2002 and fiscal
years 2003 through 2005. We aggregated sanctions into fiscal years on
the basis of their implementation dates. To determine the duration of
DPNAs across the two time periods, we calculated the difference between
the effective dates and the end of the DPNAs. To determine the amount
of CMPs paid, we used the CMP Tracking System (CMPTS), a CMS financial
management system,[Footnote 90] and aggregated CMPs into fiscal years
according to the year in which they were implemented. Based on
discussions with CMS officials we determined that data in CMPTS are
generally reliable. They also stated that the system is the primary
system used by CMS for the collection of CMPs and is the only source
for CMP payment data used by CMS. We matched CMP data in LTC and CMPTS
based on their collection number. For fiscal year 2005, we relied on
regional enforcement files for the amount of paid CMPs.
Implementation rate of sanctions. We determined the implementation rate
of sanctions imposed for the homes we reviewed in fiscal years 2000
through 2005. The percentage of implemented sanctions was calculated by
dividing the number of implemented sanctions by the total number of
imposed sanctions. The total number of imposed sanctions included those
that were implemented, not implemented, and were pending. We used data
from our March 1999 report on imposed and implemented sanctions for the
period July 1995 through October 1998.[Footnote 91]
Range of sanctions. CMS enforcement data allowed us to differentiate
between per day and per instance CMPs and mandatory and discretionary
DPNAs and terminations. We counted the number of sanctions by type and
aggregated the number by fiscal year based on the date of
implementation. The data provided the value of per day and per instance
CMPs, which were used to calculate the median values of CMPs across the
two time periods--fiscal years 2000 through 2002 and 2003 through 2005.
Cycling in and out of compliance. We analyzed the enforcement data from
LTC, AEM, and CMS regional office and state records to determine if the
63 homes we reviewed cycled in and out of compliance from fiscal years
2000 through 2005. To determine the number of times homes cycled in and
out of compliance, we counted the number of noncompliance cycles
recorded for the 63 homes. A noncompliance cycle begins on the date of
the survey finding noncompliance and ends when the home has achieved
substantial compliance by correcting deficiencies. For noncompliance
cycles for which sanctions were implemented, we examined survey dates,
the date substantial compliance was achieved, and the sanctions that
were implemented as a result of the deficiencies cited. To determine
how quickly homes were again noncompliant, we calculated the difference
between the date of the first survey of the subsequent noncompliance
cycle and the substantial compliance date of the preceding
noncompliance cycle. To quantify the number of noncompliance cycles
during which actual harm occurred, we assessed whether homes were cited
for G-level or higher deficiencies on the surveys within the
noncompliance cycle.
Immediate sanctions policy. We identified instances in which the 63
homes we reviewed were cited for repeatedly harming residents to
determine if immediate sanctions were imposed and their effect on
deterring subsequent noncompliance. To identify sanctions imposed as a
result of the immediate sanctions policy, we first identified homes
that qualified for immediate sanctions using CMS's Providing Data
Quickly (PDQ) system which prepares a variety of reports using survey
and certification data. CMS officials indicate that the data in
Providing Data Quickly are generally recognized as reliable. We then
matched the survey date in Providing Data Quickly with the survey date
in the enforcement data to identify the noncompliance cycle during
which qualifying deficiencies were cited.[Footnote 92] This step
enabled us to identify the sanctions imposed. We reviewed each case
individually to verify that the sanction was the result of actual harm
or higher-level deficiencies that denied the home an opportunity-to-
correct period or simply resulted from another survey in the same
noncompliance cycle. We also compared the date of survey with the
imposition and effective dates of sanctions to assess how much time
passed between identification of the deficiency that led to the
immediate sanction and the imposition and implementation of the
sanction. During the course of our work, we also discussed the
rationale behind the specific formulation of the immediate sanctions
policy with CMS officials.
[End of section]
Appendix II: Percentage of Nursing Homes Cited for Actual Harm or
Immediate Jeopardy, by State, Fiscal Years 2000-2005:
In order to identify trends in the proportion of nursing homes cited
with actual harm or immediate jeopardy deficiencies, we analyzed data
from CMS's OSCAR database for fiscal years 2000 through 2005 (see table
9). Because surveys are conducted at least every 15 months (with a
required 12-month statewide average), it is possible that a home was
surveyed twice in any time period. If a home was cited for a G-level or
higher deficiency on more than one survey during the fiscal year, we
only counted it once.
Table 9: Percentage of Nursing Homes Cited for Actual Harm or Immediate
Jeopardy during Standard Surveys, Fiscal Years 2000-2005:
State: Alabama;
Number of homes, 2005[A]: 229;
Fiscal year: 2000: 35.5;
Fiscal year: 2001: 23.0;
Fiscal year: 2002: 12.7;
Fiscal year: 2003: 18.1;
Fiscal year: 2004: 15.6;
Fiscal year: 2005: 23.1.
State: Alaska;
Number of homes, 2005[A]: 14;
Fiscal year: 2000: 28.6;
Fiscal year: 2001: 26.7;
Fiscal year: 2002: 26.7;
Fiscal year: 2003: 0.0;
Fiscal year: 2004: 0.0;
Fiscal year: 2005: 0.0.
State: Arizona;
Number of homes, 2005[A]: 135;
Fiscal year: 2000: 24.2;
Fiscal year: 2001: 12.6;
Fiscal year: 2002: 7.3;
Fiscal year: 2003: 6.6;
Fiscal year: 2004: 9.4;
Fiscal year: 2005: 9.9.
State: Arkansas;
Number of homes, 2005[A]: 245;
Fiscal year: 2000: 38.1;
Fiscal year: 2001: 27.7;
Fiscal year: 2002: 22.3;
Fiscal year: 2003: 24.7;
Fiscal year: 2004: 19.5;
Fiscal year: 2005: 15.9.
State: California;
Number of homes, 2005[A]: 1,329;
Fiscal year: 2000: 24.1;
Fiscal year: 2001: 10.9;
Fiscal year: 2002: 5.1;
Fiscal year: 2003: 3.7;
Fiscal year: 2004: 6.1;
Fiscal year: 2005: 8.0.
State: Colorado;
Number of homes, 2005[A]: 215;
Fiscal year: 2000: 20.4;
Fiscal year: 2001: 26.4;
Fiscal year: 2002: 32.7;
Fiscal year: 2003: 20.9;
Fiscal year: 2004: 25.9;
Fiscal year: 2005: 40.4.
State: Connecticut;
Number of homes, 2005[A]: 247;
Fiscal year: 2000: 41.9;
Fiscal year: 2001: 51.6;
Fiscal year: 2002: 45.8;
Fiscal year: 2003: 43.1;
Fiscal year: 2004: 54.4;
Fiscal year: 2005: 44.2.
State: Delaware;
Number of homes, 2005[A]: 42;
Fiscal year: 2000: 47.5;
Fiscal year: 2001: 14.6;
Fiscal year: 2002: 10.8;
Fiscal year: 2003: 5.3;
Fiscal year: 2004: 15.0;
Fiscal year: 2005: 35.7.
State: District of Columbia;
Number of homes, 2005[A]: 20;
Fiscal year: 2000: 17.7;
Fiscal year: 2001: 28.6;
Fiscal year: 2002: 30.0;
Fiscal year: 2003: 41.2;
Fiscal year: 2004: 40.0;
Fiscal year: 2005: 30.0.
State: Florida;
Number of homes, 2005[A]: 691;
Fiscal year: 2000: 22.8;
Fiscal year: 2001: 20.2;
Fiscal year: 2002: 14.9;
Fiscal year: 2003: 10.2;
Fiscal year: 2004: 7.8;
Fiscal year: 2005: 4.2.
State: Georgia;
Number of homes, 2005[A]: 370;
Fiscal year: 2000: 19.5;
Fiscal year: 2001: 21.0;
Fiscal year: 2002: 23.7;
Fiscal year: 2003: 24.6;
Fiscal year: 2004: 16.6;
Fiscal year: 2005: 18.0.
State: Hawaii;
Number of homes, 2005[A]: 45;
Fiscal year: 2000: 23.8;
Fiscal year: 2001: 14.3;
Fiscal year: 2002: 21.2;
Fiscal year: 2003: 12.1;
Fiscal year: 2004: 22.9;
Fiscal year: 2005: 2.8.
State: Idaho;
Number of homes, 2005[A]: 81;
Fiscal year: 2000: 51.4;
Fiscal year: 2001: 29.7;
Fiscal year: 2002: 39.2;
Fiscal year: 2003: 31.9;
Fiscal year: 2004: 27.3;
Fiscal year: 2005: 38.4.
State: Illinois;
Number of homes, 2005[A]: 836;
Fiscal year: 2000: 28.4;
Fiscal year: 2001: 19.2;
Fiscal year: 2002: 15.3;
Fiscal year: 2003: 18.3;
Fiscal year: 2004: 15.1;
Fiscal year: 2005: 15.7.
State: Indiana;
Number of homes, 2005[A]: 518;
Fiscal year: 2000: 45.0;
Fiscal year: 2001: 29.4;
Fiscal year: 2002: 23.2;
Fiscal year: 2003: 19.7;
Fiscal year: 2004: 24.1;
Fiscal year: 2005: 28.3.
State: Iowa;
Number of homes, 2005[A]: 465;
Fiscal year: 2000: 14.7;
Fiscal year: 2001: 12.0;
Fiscal year: 2002: 8.0;
Fiscal year: 2003: 9.1;
Fiscal year: 2004: 11.8;
Fiscal year: 2005: 11.2.
State: Kansas;
Number of homes, 2005[A]: 374;
Fiscal year: 2000: 37.9;
Fiscal year: 2001: 30.7;
Fiscal year: 2002: 32.9;
Fiscal year: 2003: 26.5;
Fiscal year: 2004: 30.3;
Fiscal year: 2005: 34.9.
State: Kentucky;
Number of homes, 2005[A]: 297;
Fiscal year: 2000: 26.8;
Fiscal year: 2001: 29.1;
Fiscal year: 2002: 23.2;
Fiscal year: 2003: 26.1;
Fiscal year: 2004: 14.6;
Fiscal year: 2005: 7.7.
State: Louisiana;
Number of homes, 2005[A]: 321;
Fiscal year: 2000: 21.8;
Fiscal year: 2001: 29.9;
Fiscal year: 2002: 21.7;
Fiscal year: 2003: 16.2;
Fiscal year: 2004: 12.0;
Fiscal year: 2005: 15.4.
State: Maine;
Number of homes, 2005[A]: 116;
Fiscal year: 2000: 11.1;
Fiscal year: 2001: 13.9;
Fiscal year: 2002: 6.6;
Fiscal year: 2003: 11.1;
Fiscal year: 2004: 12.8;
Fiscal year: 2005: 7.0.
State: Maryland;
Number of homes, 2005[A]: 239;
Fiscal year: 2000: 22.4;
Fiscal year: 2001: 16.5;
Fiscal year: 2002: 26.1;
Fiscal year: 2003: 15.4;
Fiscal year: 2004: 17.8;
Fiscal year: 2005: 7.6.
State: Massachusetts;
Number of homes, 2005[A]: 466;
Fiscal year: 2000: 29.1;
Fiscal year: 2001: 24.4;
Fiscal year: 2002: 24.6;
Fiscal year: 2003: 25.9;
Fiscal year: 2004: 16.7;
Fiscal year: 2005: 22.6.
State: Michigan;
Number of homes, 2005[A]: 432;
Fiscal year: 2000: 42.8;
Fiscal year: 2001: 24.5;
Fiscal year: 2002: 29.7;
Fiscal year: 2003: 26.9;
Fiscal year: 2004: 22.9;
Fiscal year: 2005: 22.9.
State: Minnesota;
Number of homes, 2005[A]: 411;
Fiscal year: 2000: 30.4;
Fiscal year: 2001: 17.3;
Fiscal year: 2002: 22.3;
Fiscal year: 2003: 18.3;
Fiscal year: 2004: 14.3;
Fiscal year: 2005: 14.4.
State: Mississippi;
Number of homes, 2005[A]: 210;
Fiscal year: 2000: 33.0;
Fiscal year: 2001: 19.8;
Fiscal year: 2002: 18.7;
Fiscal year: 2003: 16.0;
Fiscal year: 2004: 18.9;
Fiscal year: 2005: 18.1.
State: Missouri;
Number of homes, 2005[A]: 532;
Fiscal year: 2000: 19.8;
Fiscal year: 2001: 13.0;
Fiscal year: 2002: 15.6;
Fiscal year: 2003: 12.5;
Fiscal year: 2004: 11.7;
Fiscal year: 2005: 15.4.
State: Montana;
Number of homes, 2005[A]: 100;
Fiscal year: 2000: 33.3;
Fiscal year: 2001: 29.7;
Fiscal year: 2002: 12.0;
Fiscal year: 2003: 20.0;
Fiscal year: 2004: 18.0;
Fiscal year: 2005: 17.9.
State: Nebraska;
Number of homes, 2005[A]: 235;
Fiscal year: 2000: 19.2;
Fiscal year: 2001: 21.1;
Fiscal year: 2002: 20.1;
Fiscal year: 2003: 14.8;
Fiscal year: 2004: 15.3;
Fiscal year: 2005: 14.4.
State: Nevada;
Number of homes, 2005[A]: 47;
Fiscal year: 2000: 34.8;
Fiscal year: 2001: 14.6;
Fiscal year: 2002: 11.9;
Fiscal year: 2003: 9.1;
Fiscal year: 2004: 17.5;
Fiscal year: 2005: 19.6.
State: New Hampshire;
Number of homes, 2005[A]: 82;
Fiscal year: 2000: 37.8;
Fiscal year: 2001: 31.1;
Fiscal year: 2002: 29.4;
Fiscal year: 2003: 24.1;
Fiscal year: 2004: 25.6;
Fiscal year: 2005: 26.3.
State: New Jersey;
Number of homes, 2005[A]: 364;
Fiscal year: 2000: 25.5;
Fiscal year: 2001: 27.8;
Fiscal year: 2002: 18.8;
Fiscal year: 2003: 10.5;
Fiscal year: 2004: 13.5;
Fiscal year: 2005: 18.2.
State: New Mexico;
Number of homes, 2005[A]: 77;
Fiscal year: 2000: 23.7;
Fiscal year: 2001: 16.9;
Fiscal year: 2002: 14.9;
Fiscal year: 2003: 21.3;
Fiscal year: 2004: 24.3;
Fiscal year: 2005: 29.4.
State: New York;
Number of homes, 2005[A]: 662;
Fiscal year: 2000: 33.8;
Fiscal year: 2001: 37.1;
Fiscal year: 2002: 34.2;
Fiscal year: 2003: 15.2;
Fiscal year: 2004: 11.0;
Fiscal year: 2005: 14.0.
State: North Carolina;
Number of homes, 2005[A]: 426;
Fiscal year: 2000: 43.6;
Fiscal year: 2001: 35.8;
Fiscal year: 2002: 25.6;
Fiscal year: 2003: 29.0;
Fiscal year: 2004: 21.1;
Fiscal year: 2005: 18.5.
State: North Dakota;
Number of homes, 2005[A]: 83;
Fiscal year: 2000: 25.9;
Fiscal year: 2001: 28.7;
Fiscal year: 2002: 17.9;
Fiscal year: 2003: 12.4;
Fiscal year: 2004: 13.6;
Fiscal year: 2005: 17.7.
State: Ohio;
Number of homes, 2005[A]: 993;
Fiscal year: 2000: 26.6;
Fiscal year: 2001: 27.3;
Fiscal year: 2002: 25.4;
Fiscal year: 2003: 19.1;
Fiscal year: 2004: 11.4;
Fiscal year: 2005: 13.8.
State: Oklahoma;
Number of homes, 2005[A]: 387;
Fiscal year: 2000: 19.3;
Fiscal year: 2001: 21.3;
Fiscal year: 2002: 22.0;
Fiscal year: 2003: 26.3;
Fiscal year: 2004: 13.9;
Fiscal year: 2005: 23.2.
State: Oregon;
Number of homes, 2005[A]: 139;
Fiscal year: 2000: 45.5;
Fiscal year: 2001: 32.6;
Fiscal year: 2002: 23.7;
Fiscal year: 2003: 20.3;
Fiscal year: 2004: 15.9;
Fiscal year: 2005: 19.8.
State: Pennsylvania;
Number of homes, 2005[A]: 727;
Fiscal year: 2000: 30.3;
Fiscal year: 2001: 19.2;
Fiscal year: 2002: 13.5;
Fiscal year: 2003: 17.2;
Fiscal year: 2004: 19.5;
Fiscal year: 2005: 15.2.
State: Rhode Island;
Number of homes, 2005[A]: 92;
Fiscal year: 2000: 14.3;
Fiscal year: 2001: 12.9;
Fiscal year: 2002: 5.6;
Fiscal year: 2003: 6.7;
Fiscal year: 2004: 9.3;
Fiscal year: 2005: 9.5.
State: South Carolina;
Number of homes, 2005[A]: 177;
Fiscal year: 2000: 26.4;
Fiscal year: 2001: 17.2;
Fiscal year: 2002: 19.8;
Fiscal year: 2003: 29.6;
Fiscal year: 2004: 32.7;
Fiscal year: 2005: 24.8.
State: South Dakota;
Number of homes, 2005[A]: 112;
Fiscal year: 2000: 27.1;
Fiscal year: 2001: 26.7;
Fiscal year: 2002: 26.8;
Fiscal year: 2003: 32.1;
Fiscal year: 2004: 21.6;
Fiscal year: 2005: 12.8.
State: Tennessee;
Number of homes, 2005[A]: 337;
Fiscal year: 2000: 28.2;
Fiscal year: 2001: 20.2;
Fiscal year: 2002: 20.7;
Fiscal year: 2003: 21.8;
Fiscal year: 2004: 22.9;
Fiscal year: 2005: 17.3.
State: Texas;
Number of homes, 2005[A]: 1,174;
Fiscal year: 2000: 29.7;
Fiscal year: 2001: 30.5;
Fiscal year: 2002: 22.4;
Fiscal year: 2003: 18.0;
Fiscal year: 2004: 12.0;
Fiscal year: 2005: 16.2.
State: Utah;
Number of homes, 2005[A]: 93;
Fiscal year: 2000: 19.5;
Fiscal year: 2001: 14.1;
Fiscal year: 2002: 25.6;
Fiscal year: 2003: 19.0;
Fiscal year: 2004: 11.1;
Fiscal year: 2005: 8.4.
State: Vermont;
Number of homes, 2005[A]: 41;
Fiscal year: 2000: 22.5;
Fiscal year: 2001: 18.2;
Fiscal year: 2002: 15.0;
Fiscal year: 2003: 10.0;
Fiscal year: 2004: 19.5;
Fiscal year: 2005: 23.7.
State: Virginia;
Number of homes, 2005[A]: 281;
Fiscal year: 2000: 19.2;
Fiscal year: 2001: 14.3;
Fiscal year: 2002: 11.6;
Fiscal year: 2003: 13.7;
Fiscal year: 2004: 10.2;
Fiscal year: 2005: 15.5.
State: Washington;
Number of homes, 2005[A]: 251;
Fiscal year: 2000: 46.9;
Fiscal year: 2001: 38.3;
Fiscal year: 2002: 37.0;
Fiscal year: 2003: 30.9;
Fiscal year: 2004: 28.1;
Fiscal year: 2005: 27.2.
State: West Virginia;
Number of homes, 2005[A]: 133;
Fiscal year: 2000: 12.1;
Fiscal year: 2001: 17.7;
Fiscal year: 2002: 20.4;
Fiscal year: 2003: 12.7;
Fiscal year: 2004: 9.8;
Fiscal year: 2005: 15.0.
State: Wisconsin;
Number of homes, 2005[A]: 405;
Fiscal year: 2000: 15.8;
Fiscal year: 2001: 15.6;
Fiscal year: 2002: 11.2;
Fiscal year: 2003: 10.9;
Fiscal year: 2004: 13.1;
Fiscal year: 2005: 18.2.
State: Wyoming;
Number of homes, 2005[A]: 39;
Fiscal year: 2000: 52.8;
Fiscal year: 2001: 32.4;
Fiscal year: 2002: 25.0;
Fiscal year: 2003: 22.9;
Fiscal year: 2004: 17.1;
Fiscal year: 2005: 11.8.
State: Nation;
Number of homes, 2005[A]: 16,337;
Fiscal year: 2000: 28.4;
Fiscal year: 2001: 23.3;
Fiscal year: 2002: 20.2;
Fiscal year: 2003: 17.8;
Fiscal year: 2004: 15.7;
Fiscal year: 2005: 16.8.
Source: GAO analysis of OSCAR and PDQ data.
[A] These numbers illustrate the significant variation in the number of
active nursing homes across states.
[End of table]
[End of section]
Appendix III: Federal Sanctions for Nursing Homes Reviewed, by State,
Fiscal Years 2000-2005:
Table 10 provides the number of CMPs, DPNAs, and terminations
implemented in the nursing homes we reviewed, by state for fiscal years
2000-2002 and fiscal years 2003-2005. It also provides the total amount
of CMPs paid and the total duration of DPNAs implemented during the two
time periods. The total amount of CMPs payable in the fiscal years may
differ from what was paid.
Table 10: Number of Sanctions Implemented Among Homes We Reviewed,
Fiscal Years 2000-2005:
State: California;
Sanction: [Empty];
FY 2000-2002: Average number of homes reviewed: 10;
FY 2000-2002: Number[A]: [Empty];
FY 2000-2002: Amount paid/ duration: [Empty];
FY 2003-2005: Average number of homes reviewed: 10;
FY 2003-2005: Number[A]: [Empty];
FY 2003-2005: Amount paid/ duration: [Empty];
Percentage change in number from first to second time period: [Empty].
Sanction: CMP[B];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 5;
FY 2000-2002: Amount paid/ duration: $109,394;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 7;
FY 2003-2005: Amount paid/ duration: $166,480;
Percentage change in number from first to second time period: 40%.
Sanction: DPNA[C];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 4;
FY 2000-2002: Amount paid/ duration: 155 days;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 3;
FY 2003-2005: Amount paid/ duration: 189 days;
Percentage change in number from first to second time period: -25%.
Sanction: Involuntary termination[D];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 0;
FY 2000-2002: Amount paid/ duration: NA;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 0;
FY 2003-2005: Amount paid/ duration: NA;
Percentage change in number from first to second time period: NA.
State: Michigan;
Sanction: [Empty];
FY 2000-2002: Average number of homes reviewed: 14;
FY 2000-2002: Number[A]: [Empty];
FY 2000-2002: Amount paid/ duration: [Empty];
FY 2003-2005: Average number of homes reviewed: 13;
FY 2003-2005: Number[A]: [Empty];
FY 2003-2005: Amount paid/ duration: [Empty];
Percentage change in number from first to second time period: [Empty].
Sanction: CMP[B];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 40;
FY 2000-2002: Amount paid/ duration: $186,313;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 35;
FY 2003-2005: Amount paid/ duration: $419,401;
Percentage change in number from first to second time period: -13%.
Sanction: DPNA[C];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 26;
FY 2000-2002: Amount paid/ duration: 1,206 days;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 19;
FY 2003-2005: Amount paid/ duration: 796 days;
Percentage change in number from first to second time period: -27%.
Sanction: Involuntary termination[D];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 0;
FY 2000-2002: Amount paid/ duration: NA;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 1;
FY 2003-2005: Amount paid/ duration: NA;
Percentage change in number from first to second time period: 100%.
State: Pennsylvania;
Sanction: [Empty];
FY 2000-2002: Average number of homes reviewed: 13;
FY 2000-2002: Number[A]: [Empty];
FY 2000-2002: Amount paid/ duration: 11;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: [Empty];
FY 2003- 2005: Amount paid/ duration: [Empty];
Percentage change in number from first to second time period: [Empty].
Sanction: CMP[B];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 7;
FY 2000-2002: Amount paid/ duration: $62,400;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 1;
FY 2003-2005: Amount paid/ duration: $0;
Percentage change in number from first to second time period: -86%.
Sanction: DPNA[C];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 9;
FY 2000-2002: Amount paid/ duration: 499 days;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 5;
FY 2003-2005: Amount paid/ duration: 181 days;
Percentage change in number from first to second time period: -44%.
Sanction: Involuntary termination[D];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 0;
FY 2000-2002: Amount paid/ duration: NA;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 0;
FY 2003-2005: Amount paid/ duration: NA;
Percentage change in number from first to second time period: NA.
State: Texas;
Sanction: [Empty];
FY 2000-2002: Average number of homes reviewed: 22;
FY 2000-2002: Number[A]: [Empty];
FY 2000-2002: Amount paid/ duration: [Empty];
FY 2003-2005: Average number of homes reviewed: 22;
FY 2003-2005: Number[A]: [Empty];
FY 2003-2005: Amount paid/ duration: [Empty];
Percentage change in number from first to second time period: [Empty].
Sanction: CMP[B];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 41;
FY 2000-2002: Amount paid/ duration: $176,420;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 11;
FY 2003-2005: Amount paid/ duration: $31,671;
Percentage change in number from first to second time period: -73%.
Sanction: DPNA[C];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 13;
FY 2000-2002: Amount paid/ duration: 591 days;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 3;
FY 2003-2005: Amount paid/ duration: 79 days;
Percentage change in number from first to second time period: -77%.
Sanction: Involuntary termination[D];
FY 2000-2002: Average number of homes reviewed: [Empty];
FY 2000-2002: Number[A]: 1[E];
FY 2000-2002: Amount paid/ duration: NA;
FY 2003-2005: Average number of homes reviewed: [Empty];
FY 2003-2005: Number[A]: 0;
FY 2003-2005: Amount paid/ duration: NA;
Percentage change in number from first to second time period: -100%.
Source: GAO analysis of LTC, OSCAR, CMS regional office and state
enforcement case files, and CMPTS.
Note: Includes sanctions data from LTC as of July 26, 2005; OSCAR as of
November 22, 2005; CMS regional office and state enforcement case
files; and CMPTS data as of April 21, 2006.
NA = not applicable.
[A] Number of sanctions implemented in the time period.
[B] Includes per day and per instance CMPs.
[C] Includes mandatory and discretionary DPNAs.
[D] Includes mandatory and discretionary involuntary terminations.
[E] Although the home did not participate for 6 months of fiscal year
2001 because it was involuntarily terminated in February 2001, the
involuntary termination is counted because involuntary termination is
the most severe sanction and because it occurs so infrequently.
[End of table]
[End of section]
Appendix IV: Examples of Homes Reviewed That Frequently Cycled In and
Out of Compliance:
This appendix provides additional examples of the compliance history of
homes we reviewed that frequently cycled in and out of compliance (see
table 6). The table also includes examples of the nature of the
deficiencies cited in each noncompliance period. The three homes in
table 11 were cited for serious deficiencies--those at the actual harm
or immediate jeopardy level--and corrected these deficiencies only
temporarily, despite receiving sanctions; on subsequent surveys, they
were again found to be out of compliance, sometimes for the same
deficiencies. A noncompliance period begins on the first day a survey
finds noncompliance and ends when a home both corrects the deficiencies
and achieves substantial compliance or the home is terminated from
Medicare and Medicaid. Only federal sanctions that were imposed and
implemented are included in the table.
Table 11: Examples of Homes that Frequently Cycled In and Out of
Compliance:
California home[C].
Noncompliance period (no. of days): 1st (84 days);
Examples of the nature of deficiencies[A]:
* Resident abuse;
* Poor quality of care;
Summary of G-level or higher deficiencies: 10 G;
Enforcement action implemented[B]:
* Per day CMP ($500/day);
* Discretionary DPNA (42 days).
Noncompliance period (no. of days): 2nd (131 days);
Examples of the nature of deficiencies[A]:
* Inadequate treatment or prevention of pressure sores;
* Poor quality of care;
Summary of G-level or higher deficiencies: 1 G;
Enforcement action implemented[B]:
* Per day CMP ($100/day);
* Discretionary DPNA (13 days).
Noncompliance period (no. of days): 3rd (126 days);
Examples of the nature of deficiencies[A]:
* Resident abuse;
* Inadequate treatment or prevention of pressure sores;
Summary of G-level or higher deficiencies: 2 G, 3 H;
Enforcement action implemented[B]:
* 1st per day CMP ($3,000/day);
* 2nd per day CMP ($500/day);
* Discretionary DPNA (87 days).
Noncompliance period (no. of days): 4th (181 days);
Examples of the nature of deficiencies[A]:
* Resident abuse;
Summary of G-level or higher deficiencies: 3 G;
Enforcement action implemented[B]:
* Per instance CMPs (3 at $1,500/each);
* Discretionary DPNA (89 days).
Pennsylvania home[D.
Noncompliance period (no. of days): 1st (204 days);
Examples of the nature of deficiencies[A]:
* Inadequate treatment or prevention of pressure sores;
* Poor accident supervision or prevention;
Summary of G-level or higher deficiencies: 17 G;
Enforcement action implemented[B]:
* Per day CMP ($1,000/day);
* Mandatory DPNA (74 days).
Noncompliance period (no. of days): 2nd (147 days);
Examples of the nature of deficiencies[A]:
* Employing convicted abusers;
* Inadequate treatment of incontinence or unnecessary use of catheters;
Summary of G-level or higher deficiencies: 1 G;
Enforcement action implemented[B]:
* Per instance CMP ($10,000);
* Mandatory DPNA (12 days).
Noncompliance period (no. of days): 3rd (188 days);
Examples of the nature of deficiencies[A]:
* Employing convicted abusers;
* Medication errors;
Summary of G-level or higher deficiencies: 1 G;
Enforcement action implemented[B]:
* Mandatory DPNA (82 days).
Noncompliance period (no. of days): 4th (140 days);
Examples of the nature of deficiencies[A]:
* Poor nutrition;
* Poor accident supervision or prevention;
Summary of G-level or higher deficiencies: 2 H;
Enforcement action implemented[B]:
* Discretionary DPNA (61 days).
Texas home[E].
Noncompliance period (no. of days): 1st (105 days);
Examples of the nature of deficiencies[A]:
* Staff mistreatment of residents;
* Inadequate treatment or prevention of pressure sores;
* Use of unnecessary drugs;
Summary of G-level or higher deficiencies: 4 G;
Enforcement action implemented[B]:
* 1st per instance CMP ($6,000);
* 2nd per instance CMP ($2,500).
Noncompliance period (no. of days): 2nd (1 day);
Examples of the nature of deficiencies[A]:
* Staff mistreatment of residents;
* Employing convicted abusers;
Summary of G-level or higher deficiencies: 1 K;
Enforcement action implemented[B]:
* 1st per day CMP ($3,050/ day);
* 2nd per day CMP ($750/day).
Noncompliance period (no. of days): 3rd (11 days);
Examples of the nature of deficiencies[A]:
* Resident abuse;
* Employing convicted abusers;
Summary of G-level or higher deficiencies: 1 G, 1 J;
Enforcement action implemented[B]:
* Per day CMP ($1,000/day).
Noncompliance period (no. of days): 4th (147 days);
Examples of the nature of deficiencies[A]:
* Medication errors;
* Employing convicted abusers;
Summary of G-level or higher deficiencies: 8 G, 2 H;
Enforcement action implemented[B]:
* 1st per day CMP ($3,050/day);
* 2nd per day CMP ($400/day);
* 3rd per day CMP ($300/day);
* 4th per day CMP ($50/day);
* Discretionary DPNA (141 days).
Noncompliance period (no. of days): 5[TH] (19 days);
Examples of the nature of deficiencies[A]:
* Inadequate treatment or prevention of pressure sores;
* Accident hazards;
Summary of G-level or higher deficiencies: 1 G;
Enforcement action implemented[B]:
* Per day CMP ($500/day).
Noncompliance period (no. of days): 6[TH] (98 days);
Examples of the nature of deficiencies[A]:
* Poor nutrition;
* Employing convicted abusers;
* Poor quality of care;
Summary of G-level or higher deficiencies: 2 G, 1 K;
Enforcement action implemented[B]:
* 1st per day CMP ($3,050/day);
* 2nd per day CMP ($750/day);
* 3rd per day CMP ($50/day);
* 4th per day CMP ($500/day);
* Discretionary DPNA (67 days).
Noncompliance period (no. of days): 7th (52 days);
Examples of the nature of deficiencies[A]:
* Poor nutrition;
Summary of G-level or higher deficiencies: 0 G-level or higher; 1 E, 2
F;
Enforcement action implemented[B]:
* Per day CMP ($50/day);
* Discretionary DPNA (20 days).
Noncompliance period (no. of days): 8th (19 days);
Examples of the nature of deficiencies[A]:
* Home failed to provide necessary services for daily living;
* Employing convicted abusers;
Summary of G-level or higher deficiencies: 4 K;
Enforcement action implemented[B]:
* Per instance CMP ($10,000).
Noncompliance period (no. of days): 9th (1 days);
Examples of the nature of deficiencies[A]:
* Poor quality of care;
Summary of G-level or higher deficiencies: 1 G;
Enforcement action implemented[B]:
* Per instance CMP ($5,000).
Noncompliance period (no. of days): 10th (5 days);
Examples of the nature of deficiencies[A]:
* Poor nutrition;
Summary of G-level or higher deficiencies: 0 G-level or higher; 1 E, 2
F;
Enforcement action implemented[B]:
* Per day CMP ($500/day).
Source: GAO analysis of LTC, OSCAR, and CMS regional office and state
enforcement case files.
Notes: Enforcement actions listed were federal sanctions imposed and
implemented (sanctions imposed but not implemented and state sanctions
are not included). The total number of D-level or higher deficiencies
includes all deficiencies--not just the deficiencies that occurred
during the noncompliance cycles cited--for the period fiscal years 2000
through 2005.
[A] Examples of the nature of deficiencies include D-level or higher
deficiencies.
[B] In a number of cases, there is more than one per day CMP listed as
an enforcement action because CMPs can be raised or lowered based on
changes in deficiencies.
[C] Home open as of November 2006.
[D] Home closed in January 2004.
[E] Home closed in January 2004.
[End of table]
[End of section]
Appendix V: Number of Days between Survey and Implementation Date of
DPNA for Homes Reviewed, Fiscal Years 2000-2005:
Days: <0 days;
Number of DPNAs: 1;
Percentage of total: 4.
Days: 1-15 days;
Number of DPNAs: 3;
Percentage of total: 12.
Days: 16-30 days;
Number of DPNAs: 4;
Percentage of total: 16.
Days: 31-60 days;
Number of DPNAs: 15;
Percentage of total: 60.
Days: 61-90 days;
Number of DPNAs: 1;
Percentage of total: 4.
Days: More than 90 days;
Number of DPNAs: 1;
Percentage of total: 4.
Source: GAO analysis.
Notes: This analysis only includes DPNAs for which survey and
implementation dates were available. DPNAs implemented less than 15
days from the date of the survey were for deficiencies cited in a prior
survey; in these cases, CMS continued the DPNA as the sanction for the
current deficiencies.
[End of table]
[End of section]
Appendix VI: Comments from the Centers for Medicare & Medicaid
Services:
Department Of Health & Human Services:
Centers for Medicare & Medicaid Services:
Administrator:
Washington, DC 20201:
Feb 2 0 2007:
To: Kathryn G. Allen:
Director, Health Care Government Accountability Office:
From: Leslie V. Norwalk, Esq.
Acting Administrator:
Subject: Government Accountability Office (GAO) Draft Report: "Nursing
Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some
Homes from Repeatedly Harming Residents" (GAO-07-241):
Thank you for the opportunity to comment on the above report. The
report was prepared at the request of the Senate Finance Committee "to
assess CMS' progress in improving the enforcement process, particularly
for homes with a history of harming residents." The report makes a
number of recommendations for the Centers for Medicare & Medicaid
Services' (CMS) consideration:
1. Strengthen the immediate sanctions policy for facilities with a
history of resident harm;
2. Strengthen the deterrent effect of sanctions;
3. Seek legislation to authorize collection of civil monetary
penalties, as appropriate;
4. Expand CMS oversight of homes with a history of harming residents;
5. Improve the effectiveness of CMS enforcement data systems; and:
6. Improve information available to consumers regarding sanctions that
have been applied.
In recent years CMS has devoted increasing effort to strengthening
enforcement of the quality of care requirements specified in regulation
and law for nursing homes. Examples include:
* "Double G Policy: " In 2000 we implemented faster and progressively
stronger sanctions for those nursing homes in which residents have been
repeatedly harmed. This "double G" policy makes greater use of
immediate sanctions, such as civil monetary penalties (CMPs), Denial of
Payment for New Admissions (DPNAs), and Termination of the Provider
Agreements (TPAs) to strengthen the deterrent effect of sanctions.
* Special Focus Facilities (SFF): A subset of those nursing homes with
the worst quality of care records are now surveyed with twice the
frequency of other nursing homes and subject to decisive action if
significant improvements are not made.
* Complaint Tracking System: In 2004 we implemented a national,
electronic tracking system for complaints and follow-through on
complaint investigations (the Aspen Complaint Tracking System, or
"ACTS").
* Enforcement Tracking System: In 2005 we implemented a national,
electronic system for tracking and managing enforcement actions (Aspen
Enforcement Manager, or "AEM").
* Studies of Enforcement Effectiveness: We initiated two special
studies to help guide the development of further efforts to strengthen
enforcement effectiveness. We expect results to be available in 2007.
* Leadership Summit: The CMS. Leadership Summit with State Survey
Agency (SA) directors will be held in April 007 and is primarily
focused on the issue of improving enforcement effectiveness.
The GAO report focuses particularly on the "double G" (actual harm)
policy and the extent to which enforcement action is applied - and
applied quickly - when a nursing home has two or more instances in
which consecutive surveys find that harm has occurred to residents. To
put the issue in context Figure 1 shows the national trend of
enforcement action over time for the "double G" policy.
Fig. 1 - Percent of Medicare-Participating Double G's With Enforcement
Action - By Calendar Year:
[See PDF for Image]
Rates based on survey data available as of 10/03/2005 and enforcement
data as of 10/07/2005.
[End of figure]
The top line shows the percent of such nursing homes in which an
enforcement action (CMP or DPNA) was initiated. The percentage
increased from 29 percent in 1999 to 72 percent in 2000, showing the
effect of the new policy. Consistent CMS and State attention to the
policy resulted in a 96 percent initiation rate in 2005.
The second line shows a similar trend in the percentage of such nursing
homes in which the initiated action was imposed. The third line shows
the percentage of sanctions that actually took effect.
The main reason same sanctions do not take effect is that the nursing
home may have fixed the deficiency before the sanction's effective
date, usually a DPNA that must be provided with advance notice. We
expect that the percentage having taken effect for 2005 will be greater
than the 84 percent currently documented, once court action and other
appeals are completed for the 14 percent of cases whose disposition is
still pending (see bottom line of the graph).
As the GAO notes, it is also important to promote national consistency
in the application of remedial action. CMS has continued to work with
States to reduce any inconsistencies. The following graph, for example,
shows the narrowing difference between regions in the extent to which
enforcement action is initiated upon a survey finding that consecutive
actual harm ("double G") has occurred. For each year from 2000 through
2005, the top line of figure 2 shows the percentage of such cases for
States in the CMS regions with the highest compliance rate, compared
with the average for States in the regions with the lowest compliance
rate. The disparity was consistently reduced from a high of 61
percentage points in 2000 (87 percent v. 26 percent) to 22 percentage
points in 2005 (99 percent v. 77 percent).
Figure 2-Enforcement Action Initiated-Difference in High and Low
Regions:
[See PDF for Image]
[End of figure]
While CMS and State application of existing sanctions is important,
other important questions are:
l. Why do some nursing homes improve and others do not?
2. What array of enforcement and ancillary actions is most effective in
changing the odds that poorly performing nursing homes will improve and
maintain compliance with federal quality requirements?
These questions guide our responses to the GAO recommendations. We wish
to levy sanctions not for the sake of levying sanctions per se, but to
ensure enduring improvement and the high quality of care that residents
deserve. In some cases this may mean that our policies ought to be
changed rather than enforced in their current form. In other cases an
excellent policy may simply need to await the availability of adequate
resources. Attachment One contains an itemization of our actions in
reference to each GAO recommendation. Our remarks below focus on just a
few of the more significant issues on which we have a difference in
perspective compared to the GAO.
Double G Policy Itself:
We will either strengthen the "double G" policy or replace it with a
policy that will achieve similar goals through alternate methods. As
the GAO notes, the policy itself is quite complex. Such complexity may
be an inherent limitation. We also have other concerns regarding
whether the policy has had negative effects on the rates of deficiency
findings, and we continue to study this issue. Any fundamental change
will await our further deliberations regarding the feasibility of any
substitutes.
We believe that additional actions may be warranted, including the
involvement of owners and boards of directors more closely in the
remediation process. The GAO analysis is based on the implicit
assumption that 100 percent implementation of the double G policy in
all cases will yield measurably different results. Yet, with regard to
the sample of nursing homes in their study, the GAO also observes that
"Two-thirds (18) of the 27 nursing homes cited for double Gs that
subsequently had sanctions implemented went on to be cited again for
one or more additional double Gs[Footnote 93]." In such cases, the
issue clearly is not one of CMS or State implementation. Instead there
is a question about the policy's ultimate effectiveness with the most
problematic facilities.
For many nursing homes with a history of serious and chronic poor
quality, more CMPs or similar sanctions may simply not be very
effective. At the extreme end of the enforcement spectrum, a policy of
widespread termination of provider agreements for such nursing homes
would mean that a very large number of nursing home residents would
lose their residence. The question remains as to whether there is a
more effective combination of robust enforcement actions that is
effective for seriously-underperforming nursing homes and which does
not penalize vulnerable residents for the failures of nursing home
management. These are some of the questions behind our continuing
research and deliberations.
Special Focus Facilities (SFF):
In the SFF, a subset of those nursing homes with the worst quality of
care records are surveyed with twice the frequency of other nursing
homes and subject to decisive action if significant improvements are
not made. The GAO recommended that we expand and strengthen the SFF
initiative. We believe that this initiative is very important and will
offer vital information that will guide broader policy. We will track
the trajectory of such nursing facilities and develop some case studies
that may also be helpful in answering the question of why some nursing
homes improve and others do not. We will also improve the policy by
ensuring that all responsible parties - including the boards of
directors and the owners - are fully informed at the outset regarding
the seriousness of the facility's deficiencies, the seriousness of CMS
enforcement actions, and the imperative for improvement.
At the current time we must regretfully refrain from endorsing GAO's
suggestion that we expand the number of nursing homes in the SFF
initiative. Such expansion requires added resources, since SFF
facilities have twice the number of onsite surveys as other nursing
homes. We did expand the number by 35 percent in 2005, the last time
that Congress increased the Medicare budget for survey and
certification. Three factors combine to impede further quality
assurance efforts:
* National S&C Budget: Since 2003, there has been only one increase in
survey and certification budget, and the 1 year of increase (2005) was
$11.7 million below the President's budget request. A flat-line budget
for 2007 will leave the national budget lower than in 2005 and about
$25 million (12 percent) below the President's proposed 2007 level.
* More Providers: The total number of providers that participate in
Medicare and/or Medicaid continues to increase. This trend enlarges the
overall survey and certification workload for both State and CMS
regional offices. Providers subject to survey and certification include
not only nursing homes, but hospitals, home health agencies, dialysis
facilities, hospices, intermediate care facilities for the mentally
retarded, ambulatory surgical centers, and others. Figure 3 illustrates
the total cumulative effect of increased numbers of all types of
regulated providers. Among the provider types with the largest growth
in numbers are: dialysis centers (up 19 percent from 2002 to 2007),
home health agencies (up 26 percent), hospices (up 32 percent), and
ambulatory surgical centers (up 39 percent from 2002 to 2007).
* More Responsibilities: The quality assurance responsibilities for
State and Federal survey and certification continue to increase, with
transplant center surveys being the most recent addition (beginning in
late 2007).
Fig. 3 - Medicare S&C Total Facilities FY2000-2007:
[See PDF for image]
[End of figure]
In the context of such resource limitations, expanding the number of
SFF nursing homes would lead to a reduction in the frequency of surveys
for other provider types and would be imprudent at this time. To the
extent that Congress is able to support fully the President's proposed
budget for survey and certification in 2008, we would envision
expansion then.
Consumer Information on CMS' Nursing Home Compare Web site:
The CMS Web site (Nursing Home Compare) provides consumers, families,
and others with key information about every nursing home. It includes
information on the prevalence of pressure ulcers, the use of
restraints, pain management, and other quality measures of interest to
consumers. Nursing Home Compare also includes a summary of any quality
of care deficiencies identified by surveyors in the previous three
years. The Web site remains one of the most frequently-used CMS
internet sites, with over 1.6 million page-views by the public each
year. We continue to take steps to make publicly reported data as
reliable and accurate as possible under current authority. For example,
in 2006 CMS added information regarding whether a nursing home has fire
safety sprinklers as well as the types of deficiencies related to fire
safety.
The GAO recommended that CMS post information on the Web site regarding
sanctions imposed on each nursing home. We agree that this will be
useful information for consumers. Effective in 2008, CMS will begin to
post information in an accessible location on the Web site regarding
those nursing homes that have a history of poor quality and have had
multiple sanctions imposed. For nursing homes with a history of serious
and repeated harm to individuals, the history of sanctions may be a
good predictor of future behavior. For example, nursing homes with
eight or more sanctions during the 3-year period of 2001-2003 had a 100
percent chance of deficiencies that involved additional sanctions in
the next year, 2004. We will establish a threshold for the publication
of such sanction history based on our analysis of the predictive power
of past sanctions.
A Comprehensive, Transparent Approach:
The CMS published its 2007 Nursing Home Action Plan in September 2006.
The Plan includes a description of some of our improvements related to
enforcement. The Plan also summarizes our comprehensive strategy for
nursing home quality and describes 39 separate initiatives in five
inter-related and coordinated approaches. A copy of the Nursing Home
Action Plan can be found at: Hyperlink,
http://www.cms.hhs.gov/SurveyCertificationGenInfo/downloads/2007ActionPl
an.pdf. Additional actions related to enforcement effectiveness, as
described in Attachment One, will be incorporated into the 2008 Action
Plan.
[End of section]
Appendix VII: Comments from the California Department of Health
Services:
State of California-Health and Human Services:
Agency Department of Health Services:
Sandra Shewry:
Director:
Arnold Schwarzenegger:
Governor:
Feb - 2 2007:
Kathryn G: Allen, Director:
Health Care:
Government Accountability Office:
441 G Street, NW, Room 5A14:
Washington, DC 20548:
Dear Ms Allen:
The California Department of Health Services (CDHS) is pleased to
present its response to the Government Accountability Office's (GAO)
proposed report entitled, "Nursing Homes: Efforts to Strengthen Federal
Enforcement Have Not Deterred Some Homes from Repeatedly Harming
Residents (GAO-0'7-241)." The CDHS recognizes and appreciates the
effort required to prepare this report. Please thank Mr. Walter Ochinko
and Ms. Joann Jee on behalf of the CDHS.
If you have any questions, please contact Kathleen Billingsley, R N,,
Deputy Director of Licensing and Certification Division, at (916) 440-
7360.
Sincerely,
Signed by:
Sandra Shewry:
Director:
Enclosure:
cc: Kathleen Billingsley, RN:
Deputy Director:
Licensing and Certification:
1615 Capitol Avenue, MS 3000:
P.0 Box 997413:
Sacramento, CA 95899-7413:
California Department of Health Services Response to GAD Draft Audit
Report:
"Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not
Deterred Some Homes from Repeatedly Harming Residents"
The California Department of Health Services (CDHS) concurs with the
overall conclusions and recommendations in the draft report CDHS
concurs that the enforcement process used by the state agency in
conjunction with the Centers for Medicare & Medicaid Services (CMS)
Region IX was accurately depicted:
* CDHS generally agrees with the statements on bottom of page 16 and
top of 17. "Across the four states we reviewed, the proportion of homes
with serious deficiencies in fiscal year 2005 ranged from 8 percent in
California to 23 percent in Michigan As we previously reported, such
disparities are more likely to reflect inconsistencies in how states
conduct surveys rather than actual differences in the quality of care
provided by homes." CDHS notes that the definition of what constituted
harm was prescribed by CMS Region IX staff Until late 2004, evidence of
permanent outcome had been required The new definition had an impact on
the number of determinations of harm in California.
* CDHS generally agrees with the statements on page 26. Mid-page the
report states, "In California, complaints typically are investigated
under state licensure authority and the findings generally are not
recorded in the same manner as deficiencies cited under the federal
process, which may contribute to lower double G citation rates in the
state. Thus, California homes are not cited for a double G when the
subsequent deficiency equivalent to a G-level or higher deficiency was
found during a complaint investigation " If the finding during a
complaint investigation is equivalent to a G-level but is processed
using the state citation system, the outcome is not recorded in the
federal system There is no mechanism to record a state citation in the
federal database If the outcome of harm is recorded in both the federal
and state database, the provider would have cause to challenge, since
California Health & Safety Code section 1423(a)(2) states in part, "No
violation may result in the issuance of both a citation pursuant to
state laws and the recommendation that a federal civil monetary penalty
be imposed.' All state citations have a mandatory civil monetary
penalty (CMP) Even though a CMP may not be assessed on a G-level
deficiency, the presence of the finding in both databases may reflect
on the provider as having separate serious violations on their record:
* CDHS generally agrees with the statements on page 27 at the top, "The
California Department of Health Services conducted a pilot to test the
use of the federal complaint procedure in select district offices, in
part because of the low double G citation rate. As of November 2006,
the Department decided not to expand or complete a formal evaluation of
the pilot; instead, the Department is focusing on eliminating their
backlog of complaints and initiating complaint investigations within
required timeframes." All of the field offices have direction to
transition into an abbreviated federal survey or use the state citation
system if an outcome of harm is determined during a complaint
investigation The choice depends upon multiple variables in the
situation:
* CDHS generally agrees with the table on page 32. Table 7 describes am
incident in a California home where the resident choked (and
subsequently died) and no functional suction equipment was available
CDHS issued a "AA" state citation related to this event and assessed a
CMP of $60,000 The "AA" citation class is the highest in the state
process and is only used if the violation is a proximate cause of the
resident's death:
* CID HS generally agrees with the footnote at the top of page 33 that
states, "These data likely understate the quality problems at this home
because California primarily conducts complaint investigations under
its state licensure authority and did not record serious deficiencies
identified during such investigations in OSCAR " CDHS cannot enter
state findings (a deficiency or a state citation for an egregious
violation) in OSCAR:
* CDHS disagrees with the statement on page 37 in the first paragraph
that states, "For example, California officials acknowledged that
confusion by state survey agency officials as to what constituted
actual harm had contributed to the decline in citations of serious
deficiencies in California." California officials were not confused.
CDHS received clear new direction from Region IX staff that a
determination of harm must include a permanent outcome for the resident
Statements of deficiencies that included a fractured pelvis and
dehydration requiring acute hospital stays were assessed at the G level
by the state agency field staff but were downgraded by CMS Region IX to
D level deficiencies during this time period:
* CDHS agrees with the concerns regarding data communications in the
middle section of page 40 The monitoring alert function of ASPEN
(Automated Survey Processing Environment) Enforcement Manager (AEM) was
not functional or available to California until January 2007, primarily
due to firewall issues and system differences in the state. It was only
then that CMS Region IX staff was immediately aware that an enforcement
action with recommended remedies had been entered into the system.
Significant workload to copy, e-mail, or overnight mail survey
documents is finally diminished and expedited reviews and
recommendations can now occur:
* CDHS agrees with the recommendations for immediate payment of CMPs or
withholding from payment sufficient funds to cover the CMP and
placement of funds into an escrow account pending appeal:
[End of section]
Appendix VIII: Comments from the Michigan Department of Community
Health:
State Of Michigan:
Department Of Community Health:
February 1, 2007:
Mr, Walter Ochinko, Assistant Director:
United States Government Accountability Office:
Washington, DC 20548:
RE: GAO Draft Report: Efforts to Strengthen Federal Enforcement Have
Not Deterred Some Homes from Repeatedly Harming Residents (GAO-07-241):
Dear Mr. Ochinko:
Janet Olszewski, Director of the Department of Community Health, has
authorized me to submit comments to the Government Accountability
Office's (GAO) draft report Efforts to Strengthen Federal Enforcement
Have Not Deterred Some Homes from Repeatedly Harming Residents (GAO-07-
241).
Thank you for allowing Michigan the opportunity to discuss its
enforcement system with GAO staff. We appreciate the feedback contained
in the GAO report. Our belief is that Michigan has made significant
progress in the implementation of its enforcement system since 1999.
Michigan's enforcement has evolved from a primarily educational
response to deficiencies; to minimal per instance civil money
penalties; to the progressive enforcement system that exists today. We
believe that Michigan's current enforcement system is a fair,
consistent and thoughtful approach to addressing nursing home
deficiencies that provides incentives to compliance. Under Michigan's
system, poor performing nursing homes receive increasing penalties
which lead to sustained compliance or termination.
We offer the following comments to issues raised by GAO:
State Agency Authority Is Limited To "Recommendations" To CMS:
State Agencies are criticized for not making more effective use of
enforcement remedies. The selection of remedies is not entirely under
State Agency control. They may recommend, but not impose without
Centers for Medicare and Medicaid Services (CMS) approval. State
Agencies do not have the authority to impose civil money penalties or
discretionary denial of payment, the most effective remedies, without
CMS approval.
Lack Of Immediate Sanction:
The 15-day waiting period for the effectiveness of discretionary denial
of payment is problematic for states and well documented in the GAO
report. We support immediate effect, or at least a reduction of the 15
day notice in recognition that notices are now electronically
transmitted to facilities and delivery can be verified. Under the
current system, a Civil Money Penalty (CMP) with immediate effect is
more effective than discretionary denial of payment for new admissions
(DPNA) due to the 15-day grace period and the likelihood that the DPNA
will not take effect. The GAO study notes that Michigan prefers to
impose CMPs. The reason is because of the certainty of the penalty and
because daily penalties encourage nursing homes to expedite a return to
compliance.
National Leadership On Enforcement Is Critical To Strengthening The
Effectiveness of Enforcement Remedies.
As GAO notes, CMS has provided minimal guidance to State Agencies in
selection and imposition of enforcement remedies. Following the 1999
GAO report, Michigan sought specific guidance from CMS and solicited
enforcement process information from other states. In 2000, Michigan
independently initiated the development of a CMP grid based on the
general guidance contained in the CMS State Operations Manual. The
initial grid was shared with CMS Region V representatives. Comments
were received and adopted. This grid has evolved over time and has been
used effectively to provide consistent and progressively more severe
CMP sanctions, as our CMP recommendations to CMS were approved. We were
pleased to see that the CMS Central Office developed a proposed CMP
schedule similar to Michigan's, but were disappointed that CMS stopped
short of mandating the use of their CMP grid, or approved State
alternative CMP grid, in all states. That likely accounts for the
disparate application of CMPs across the nation.
Michigan often recommends imposition of discretionary DPNA when a
facility fails to maintain compliance for extended periods between
enforcement cycles or due to findings of substantial noncompliance
including harm or substandard quality of care. Unfortunately, the 15-
day notice (grace period), combined with the CMS policy that
evidentiary compliance is not necessary on a first revisit, often
results in this remedy being rescinded by CMS before actually going
into effect and its imposition has no consequence. (States are required
to "assume" the compliance date is the date alleged in the Plan of
Correction unless the survey team finds evidence of noncompliance. See
SOM 7317B and Survey and Certification Letter 01-10.) CMS' revisit
policy may account for the decrease in the duration of DPNAs noted in
GAO's review of DPNA from 2000-2002 and 2003-2005.
The appropriate time to impose discretionary termination is immediately
following a survey finding substantial noncompliance problems. Even the
most troubled facilities can write an acceptable plan of correction and
address known deficiencies following a poor survey. Provided an
opportunity to fix compliance issues following a survey with knowledge
that the State Agency will be returning in about two months, or at
least following the date the facility asserts compliance, it is not
surprising that most deficiencies are corrected on revisit. Some may
even be corrected at the time the Plan of Correction is received.
However, this misses the point that facilities are responsible for
sustained compliance. Survey Agencies and the survey process should not
substitute for nursing home quality assurance process. The current
practice of moving to terminate a facility after one or more compliance
verification revisits with decreasing citations in an enforcement cycle
is counterintuitive. At that point in the process, termination for a
few remaining citations appears to be a disproportionately harsh remedy
when an opportunity to correct many deficiencies has already been
provided.
In December 2006, Michigan developed a tool to evaluate discretionary
termination for facilities with poor compliance histories. Again, as
GAO points out, there is no CMS national guidance on this subject. In
early 2007, a nursing home in Michigan meeting the criteria for
discretionary termination received the State Agency's "recommendation"
for termination with no request for a Plan of Correction. The CMS
Region V Office mandated that we send out a revised notice requesting a
Plan of Correction and, as of this writing, has failed to send out its
official notice of enforcement. Meanwhile, the facility is under the
assumption it will be allowed to correct its deficiencies.
Without CMS guidance on the important aspects of enforcement, and
subsequent methods to ensure that all states follow this guidance, the
issues identified in the GAO report will not be resolved nationally.
However, some states are active on enforcement. Michigan prides itself
in this regard. But, nonetheless, a consistent national approach is
needed.
Michigan recommends termination dates of less than six months for all
Special Focus Facilities and in situations where a facility has
recently completed an enforcement cycle and fails to maintain
compliance. CMS Region V has been supportive of these recommendations
and the reduced time frames provide a clear incentive for the early
correction of deficiencies.
Need For Comprehensive Survey Data Base:
We suggest that as part of a nationwide standard to change enforcement
practices to deter nursing homes from repeated harm citations, CMS
mandate that State Agencies file all survey data, including state
authority investigations, with CMS. The complete history of the
facility must be used to assess the nursing home's overall performance
and determine remedies that must be imposed. It is unfair to hold some
states accountable for CMS performance standards, when other states are
allowed to withhold information from the program for performance
review.
Michigan's Enforcement System Goes Beyond CMS Requirements:
Under Michigan's enforcement system, facilities that continue to harm
residents or provide substandard quality of care receive more severe
enforcement recommendations commensurate with their compliance history,
repeat citations, and the scope and severity of the citations in the
current survey. In addition to the "Double G" determination that
mandates remedies, a survey event that has two or more harm level or
above citations will result in a CMP recommendation. If a facility has
had a CMP imposed during the preceding 24 months or two standard survey
cycles, the recommended CMP will always be at least as high as the
previously imposed CMP. The progressive nature of this enforcement
approach works to remove poor performers. Some of Michigan's
"voluntary" terminations were situations where the facility had
received survey results that warranted severe remedy imposition. The
owners made business decisions to voluntarily terminate.
Factors Considered When Deciding To Recommend Termination:
GAO notes that states frequently give "lack of availability of beds in
an area" as a reason for not recommending termination. The decision of
whether to recommend termination is more complex than checking
alternate nursing home sites. Many factors are considered. The first,
of course, is the trauma that residents might suffer in any relocation
and the risk inherent to transferring any resident, including those
with special needs. The State considers the proximity of available beds
in the area so that families can remain in contact with residents. Also
considered are the special care needs of residents. Some residents, for
example those with behavior issues, are difficult to place. Relocation
can be challenging. This is true especially in rural areas. While it is
true the enforcement history transfers with a change of ownership,
progress by a current owner may be a reason to not recommend
discretionary termination even if a harm citation is issued.
In states that have Certificate of Need standards or licensing
requirements that rely on certification, termination of Medicare/
Medicaid status can result in closure and the loss of a community
resource for nursing care.
Examples of Homes With Low Implemented CMPs:
GAO includes an example of a situation in which a resident was harmed
by a medication error to support its contention that CMS did not take
advantage of the full range of sanctions for the homes reviewed. In
this case, the State Agency recommended, and CMS approved, a per
instance civil money penalty of $1500 for a situation involving a
medication error that occurred over a three day period resulting in
hospitalization of the resident. The allowable range for per instance
CMPs is $1000 to $10,000.
This event occurred in August 2001. As has been stated previously,
during that time Michigan had a preference for per instance civil money
penalties while it was developing a CMP policy that later was
finalized. Our experiences from 2000 and 2001 convinced us that a $1500
civil money penalty is not an effective deterrent to non-compliance.
Had the current CMP grid been in effect in 2001, the penalty would have
been $300 per day for 102 days, a total of $29,400. We believe that to
be more appropriate to similar situations.
A Michigan Home Reviewed Cycled In and Out of Compliance Nine Times for
Fiscal Years 2000 through 2005:
Michigan agrees that the nursing home that is the subject of this
comment deserved special attention because of its compliance problems
on standard surveys and abbreviated (complaint) surveys. But the
analysis of its compliance issues is more complex than counting
enforcement cycles. Five of the nine cycles for a five year period are
not unusual with one standard survey in each 12 months. In addition,
this facility was designated a "Special Focus Facility" in January 2005
which requires surveys every 6 months so an additional survey would be
expected. This leaves three "exceptional" or additional surveys over a
5 year period. We determined this facility should have special focus
because of compliance problems. GAO is correct this facility is still
open. It has shown progress in resolving its compliance issues and will
likely be removed from the Special Focus Facilities list. This example
and the next example illustrate the conflict faced by State Survey
Agencies in the absence of specific termination criteria; judging
whether a poor performing facility is capable of systemic change and
should be given an opportunity to correct deficiencies, or whether it
should be terminated without any opportunity to correct.
Example of Nursing Home Deficiency History and Termination Action 2000-
2005:
GAO presents an example of a Michigan home that had 95 D-level or
higher deficiencies and cycled out of compliance seven times. Again,
five enforcement cycles for a nursing home in five years is not unusual
due to the practice of conducting standard surveys at 12 month
intervals. Arguably two additional cycles over a five year period is
not excessive. However, the number of citations exceeds state survey
averages. State Agency staff worked with this facility to reduce
citations, with some progress. It is a candidate for special review at
next survey to determine if it should be terminated without further
opportunity to correct because of poor surveys in 2006.
We believe that an effective enforcement system is an important
component to improving nursing care. We appreciate GAO's review and
recommendations. Please contact me if you require clarification of any
part of this response.
Sincerely,
Signed by:
Mike Dankert, Director:
Bureau of Health Systems:
cc: Janet Olszewski:
Jan Christensen:
David McLaury:
[End of section]
Appendix IX: Comments from the Texas Department of Aging and Disability
Services:
Texas:
Department of Aging and Disability Services:
Commissioner:
Adelaide Horn:
February 2, 2007:
Kathryn G. Allen:
Director, Health Care:
United States Government Accountability Office:
Washington, DC 20548:
Re: Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not
Deterred Some Homes from Repeatedly Harming Residents (GAO-07-241):
Dear Ms. Allen:
Thank you for the opportunity to review and to make comments prior to
the publication of this report.
We have reviewed your recommendations to the Centers for Medicare and
Medicaid Services (CMS) and look forward to playing our role in
implementing any strategies that CMS puts in place. As you mention in
the report; CMS has developed a standard CMP (civil money penalty) grid
that the states may use in determining CMP amounts. We have been using
this grid since June 2006 and have found it to be very helpful.
You also note that CMS has revised the Special Focus Facility Program,
although you note that the program is limited to a relatively small
number of facilities. Although we were only required to include five
facilities in our Special Focus Facility activities, Texas elected to
include six facilities.
In addition, the CMS Dallas Regional Office supports our use of
discretionary denial of payment for new admissions.
Regarding the specific details of the report, in the last sentence of
the first paragraph on page 18. directly before Table 4, you accurately
state that the Texas state survey agency does not recommend more than
one type of money penalty for the same deficiency. However, this
statement was not accurate for the entire time period covered by this
study (i.e., federal fiscal years 2000-2005). Prior to September l,
2003, the Texas state survey agency was authorized to recommend both a
state money penalty as well as a federal CMP. After that date, by
virtue of a change in state law, we were only authorized to assess
either a state money penalty or a CMP. This change may have had an
impact on the amount of CMPs imposed after September 1, 2003.
The wording of footnote 40 on page 19 may not be easily understood by
persons unfamiliar with the licensure practice of our state. I would
recommend the following wording for footnote 40:
"This home is located in Texas, where the state issues a license to the
person or entity that operates the nursing home rather than to the
owner of the real property. The majority of nursing homes in Texas are
operated out of leased property. When the home was recertified, the new
operator was licensed; there was no change in the owner of the real
property."
On page 43, in the last full sentence of the last paragraph, the
statement regarding the use of state rather than federal sanctions for
G-level or higher deficiencies only addresses part of the issue. As
stated earlier, it is true that after September 1, 2003, the state is
only authorized to assess either a state money penalty or a CMP. What
this statement does not capture is that, while the maximum amount of
per day CMP that may be assessed is $10,000, the maximum amount of
state penalty that may be assessed is $20,000 per violation, per day.
Thus, for example, if a nursing facility is found to have violated
three separate state rules for one day and the finder of fact
determines that the violations warrant the maximum amount of penalty,
the total amount of penalty assessed would be $60,000. If those same
violations were found to have taken place over two days the amount
assessed could be $120,000, and so on. I would recommend adding the
following language to the end of that sentence to read as follows:
"Texas state officials often use state rather than federal sanctions
for G-level or higher deficiencies, in part because they cannot propose
a federal CMP if they impose a state sanction; and because the total
state penalty amount that may be imposed may be greater than the amount
of CMPs that may be imposed.
Please let me know if you have any questions or need additional
information. Veronda L. Durden, Assistant Commissioner for Regulatory
Services, is serving as the lead staff on this matter and can be
reached at (512)438-2625 or by e-mail at
veronda.durden@dads.state.tx.us.
Sincerely,
Signed by:
Adelaide Horn:
Commissioner:
[End of section]
Appendix X: GAO Contact and Staff Acknowledgments:
GAO Contact:
Kathryn G. Allen, (202) 512-7118 or allenk@gao.gov:
Acknowledgments:
In addition to the contact names above, Walter Ochinko, Assistant
Director; Elizabeth Bradley; Jacquelyn Clinton; Joanne Jee; Elizabeth
T. Morrison; Colbie Porter; Jessica Smith; and Karin Wallestad made key
contributions to this report:
[End of section]
Related GAO Products:
Nursing Homes: Despite Increased Oversight, Challenges Remain in
Ensuring High-Quality Care and Resident Safety. GAO-06-117. Washington,
D.C.: December 28, 2005.
Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses in
State and Federal Oversight of Quality of Care. GAO-05-78. Washington,
D.C.: November 12, 2004.
Nursing Home Fire Safety: Recent Fires Highlight Weaknesses in Federal
Standards and Oversight. GAO-04-660. Washington D.C.: July 16, 2004.
Nursing Home Quality: Prevalence of Serious Problems, While Declining,
Reinforces Importance of Enhanced Oversight. GAO-03-561. Washington,
D.C.: July 15, 2003.
Nursing Homes: Public Reporting of Quality Indicators Has Merit, but
National Implementation Is Premature. GAO-03-187. Washington, D.C.:
October 31, 2002.
Nursing Homes: Quality of Care More Related to Staffing than Spending.
GAO-02-431R. Washington, D.C.: June 13, 2002.
Nursing Homes: More Can Be Done to Protect Residents from Abuse. GAO-
02-312. Washington, D.C.: March 1, 2002.
Nursing Homes: Federal Efforts to Monitor Resident Assessment Data
Should Complement State Activities. GAO-02-279. Washington, D.C.:
February 15, 2002.
Nursing Homes: Sustained Efforts Are Essential to Realize Potential of
the Quality Initiatives. GAO/HEHS-00-197. Washington, D.C.: September
28, 2000.
Nursing Home Care: Enhanced HCFA Oversight of State Programs Would
Better Ensure Quality. GAO/HEHS-00-6. Washington, D.C.: November 4,
1999.
Nursing Home Oversight: Industry Examples Do Not Demonstrate That
Regulatory Actions Were Unreasonable. GAO/HEHS-99-154R. Washington,
D.C.: August 13, 1999.
Nursing Homes: Proposal to Enhance Oversight of Poorly Performing Homes
Has Merit. GAO/HEHS-99-157. Washington, D.C.: June 30, 1999.
Nursing Homes: Complaint Investigation Processes Often Inadequate to
Protect Residents. GAO/HEHS-99-80. Washington, D.C.: March 22, 1999.
Nursing Homes: Additional Steps Needed to Strengthen Enforcement of
Federal Quality Standards. GAO/HEHS-99-46. Washington, D.C.: March 18,
1999.
California Nursing Homes: Care Problems Persist Despite Federal and
State Oversight. GAO/HEHS-98-202. Washington, D.C.: July 27, 1998.
FOOTNOTES
[1] Medicare is the federal health care program for elderly and
disabled people. Medicare covers up to 100 days of skilled nursing home
care following a hospital stay. Medicaid is the joint federal-state
health care financing program for certain categories of low-income
individuals. Medicaid also pays for long-term care services, including
nursing home care.
[2] Data for 2004 are the most recent available.
[3] GAO, California Nursing Homes: Care Problems Persist Despite
Federal and State Oversight, GAO/HEHS-98-202 (Washington, D.C.: July
27, 1998) and Nursing Homes: Additional Steps Needed to Strengthen
Enforcement of Federal Quality Standards, GAO/HEHS-99-46 (Washington,
D.C.: Mar. 18, 1999). See a list of related GAO products at the end of
this report.
[4] See GAO/HEHS-99-46. The 1999 report focused on 74 homes. We
excluded 11 of the original 74 homes from our current analysis because
they either closed before fiscal year 2000 or closed within 6 months of
the beginning of fiscal year 2000 and therefore had few or no
deficiencies or sanctions during the period we reviewed. Of the
remaining 63 homes, 10 were located in California, 16 in Michigan, 14
in Pennsylvania, and 23 in Texas (see app. I).
[5] Overall, the nursing homes in these four states account for about
22 percent of nursing homes nationwide.
[6] By state, the number of homes active for at least 6 months in
fiscal years 2000 and 2005 did not change in California, decreased by
one home in both Michigan and Texas, and decreased by four homes in
Pennsylvania (see app. I). The year-to-year changes in the number of
providers do not materially affect our findings on enforcement trends.
[7] ASPEN is an abbreviation for Automated Survey Processing
Environment.
[8] See appendix I for a more detailed description of our use of these
CMS databases.
[9] Our analysis of the implementation rate of sanctions includes a
third baseline time period of July 1995 to October 1998, which we
previously reported on in 1999. Our current analysis starts with fiscal
year 2000, excluding fiscal year 1999, because one of the major
enforcement policies we evaluated was modified in 2000.
[10] Throughout this report, we use the term "termination" to refer to
a home's closure for cause, also known as involuntary closure. Homes
can and do close voluntarily.
[11] In this report, we use the term "states" to include the 50 states
and the District of Columbia.
[12] Pub. L. No. 100-203, §§4201, 4211, 101 Stat. 1330-160, 1330-182.
[13] Pub. L. No. 100-203, §§4203, 4213, 101 Stat. 1330-179, 1330-213.
[14] Every nursing home receiving Medicare or Medicaid payment must
undergo a standard survey not less than once every 15 months, and the
statewide average interval for these surveys must not exceed 12 months.
[15] Throughout this report, we use the term serious deficiency to
refer to care problems at the level of actual harm or immediate
jeopardy.
[16] State survey teams generally consist of registered nurses, social
workers, dieticians, and other specialists.
[17] See Hyperlink, http://www.medicare.gov/NHCompare.
[18] In addition to federal sanctions, states may impose their own
sanctions under their state licensure authority.
[19] Federal statutes specify that CMPs may not exceed $10,000 for each
day of noncompliance. 42 U.S.C. §1395i-3(h)(2)(B)(ii) and 42 U.S.C.
§1396r(h)(3)(C)(ii).
[20] Unlike for per day CMPs, CMS does not specify a particular per
instance CMP range for cases of immediate jeopardy.
[21] If efforts to collect the CMP directly from the home fail,
Medicare and Medicaid payments are withheld.
[22] Homes also can choose to close voluntarily, but we do not consider
voluntary closure to be a sanction. When a home is terminated, it loses
any income from Medicare and Medicaid, which accounted for about 40
percent of nursing home payments in 2004. Residents who receive support
through Medicare or Medicaid must be moved to other facilities.
However, a terminated home generally can apply for reinstatement if it
corrects its deficiencies.
[23] Instead of termination, a temporary manager may be appointed to
remove the immediate jeopardy.
[24] According to CMS, substandard quality of care exists when a home
is cited for a deficiency at the F, H, I, J, K, or L level in any of
three areas: quality of care, which can include deficiencies such as
inadequate treatment or prevention of pressure sores; quality of life,
which can include deficiencies such as a failure to accommodate the
needs and preferences of residents; and resident behavior, which can
include deficiencies such as a failure to protect residents from abuse.
This definition excludes deficiencies at the G level (actual harm). For
purposes of this report, we define serious deficiencies as G-level or
higher deficiencies. The statute allows CMS to deny payment for all
residents; however, our analysis focuses on the denial of payment for
new admissions, a more frequently used sanction.
[25] By implementing either a mandatory or discretionary termination,
CMS is acting to involuntarily terminate the nursing home.
[26] See 42 U.S.C. §1395i-3(h)(2)(B) and 42 U.S.C. § 1396r(h)(2)(A).
[27] While this description applies to the approximately 93 percent of
homes that receive either Medicare or both Medicare and Medicaid
payments, states are responsible for enforcing standards in the 7
percent of homes that only receive Medicaid payments and may impose
certain sanctions, such as state monitoring and DPNAs. Notice periods
for most sanctions are required by CMS regulations.
[28] See 42 C.F.R. § 488.436.
[29] See GAO, Nursing Homes: Despite Increased Oversight, Challenges
Remain in Ensuring High-Quality Care and Resident Safety, GAO-06-117
(Washington, D.C.: Dec. 28, 2005).
[30] Although the policy requires the immediate imposition of
sanctions, CMS has not defined a time standard for "immediate." The
policy only requires that homes with a pattern of harming residents be
denied a grace period to correct deficiencies before the sanctions are
imposed. Prior to the policy, homes were given a grace period in which
they could correct deficiencies before sanctions were imposed.
[31] CMS guidance also gives states and regional offices the option to
rescind a home's "opportunity to correct" based on (1) scope and
severity of the deficiency, (2) unwillingness and inability of the
facility to correct the deficiency, and (3) the effectiveness of the
facility's quality assurance and monitoring system to prevent
recurrence of the deficiency.
[32] Under contract with CMS, QIOs (formerly known as Peer Review
Organizations) working in all 50 states and the District of Columbia
help to ensure the quality of care delivered to Medicare beneficiaries.
Prior to 2002, QIOs' work focused on care delivered in acute care
settings such as hospitals.
[33] While the reported decline in the proportion of homes with serious
deficiencies could be due to improved quality, we have also documented
the underreporting of serious deficiencies. See GAO, Nursing Home
Quality: Prevalence of Serious Problems, While Declining, Reinforces
Importance of Enhanced Oversight, GAO-03-561 (Washington, D.C.: July
15, 2003) and GAO-06-117.
[34] Although sanctions declined during the period we reviewed, they
nearly doubled from fiscal years 1999 to 2000.
[35] See GAO/HEHS-98-202, GAO-03-561, or GAO-06-117.
[36] This analysis excluded 13 states because fewer than 100 homes were
surveyed, and even a small increase or decrease in the number of homes
with serious deficiencies in such states may produce a relatively large
percentage point change.
[37] CMS acknowledges that there is inconsistency in how states conduct
surveys and is trying to address this issue by piloting a revised
survey methodology. In commenting on a draft of this report, California
noted that until late 2004 its CMS regional office required evidence of
permanent harm in order for a deficiency to be cited as actual harm.
After California received new guidance on the definition of actual
harm, we noted that the number of determinations of harm increased.
[38] Despite the poor performance histories of some of the 63 homes,
only 1 of these homes was part of CMS's original Special Focus
Facilities program. In 2005, only 2 of the homes we reviewed were
designated Special Focus Facilities and in 2006, only 4 were so
designated.
[39] In addition to federal sanctions, states can impose state
sanctions on noncompliant homes. The revenue from state CMPs accrues to
the state but must be applied to the protection of the health or
property of nursing home residents.
[40] According to Texas officials, this money penalty policy took
effect on September 1, 2003, as a result of a state statutory change.
Prior to the statutory change, the state survey agency could recommend
both a state money penalty as well as a federal CMP.
[41] This home is located in Texas, where the state issues a license to
the person or entity operating the nursing home rather than the owner
of the real property. The majority of nursing homes in Texas are
operated out of leased property. When the home was recertified, the new
operator was licensed; there was no change in the owner of the real
property.
[42] Although the homes were closed for some part of the period we
reviewed, fiscal years 2000 through 2005, we determined that there were
sufficient data to include the homes in our sample.
[43] GAO/HEHS-99-46.
[44] GAO/HEHS-99-46.
[45] As previously described, the allowable range for a per day CMP is
$50 to $10,000 for each day a home is noncompliant, and the allowable
range for a per instance CMP is $1,000 to $10,000 for each episode of
noncompliance.
[46] An official in one state told us that a home's financial status
should not be considered when assessing CMPs because it could result in
inconsistent CMPs for similar quality problems.
[47] By regulation, where no immediate jeopardy is found, CMS must
provide homes with 15 days' notice before implementing any DPNA or
termination. In cases of immediate jeopardy, however, the notice period
is 2 days.
[48] This analysis excludes Texas nursing homes because the data did
not always allow us to distinguish between mandatory and discretionary
terminations in Texas.
[49] Our case file review found that one discretionary termination was
implemented in Texas.
[50] GAO/HEHS-99-46.
[51] In July 2003, we reported that from January 2000 through March
2002, states did not refer a substantial number of nursing homes with a
pattern of harming residents to CMS for immediate sanctions. See GAO-03-
561. Eight of the 15 cases occurred after March 2002. From fiscal years
2000 through 2005, 40 CMPs and 25 DPNAs were implemented during periods
of noncompliance in which there was a double G.
[52] California records findings from complaints investigated under
state licensure in a separate and dedicated state-licensure component
of the federal system for tracking complaints. The state complaints are
recorded using the state system for classifying violations. According
to the state, complaints investigated under state licensure are
recorded separately because state law prohibits the issuance of both a
state citation, which carries with it a mandatory state civil monetary
penalty, and the recommendation that a federal CMP be imposed.
[53] If, during a complaint investigation, state surveyors identify
deficiencies that would be equivalent to immediate jeopardy or
substandard quality of care, the surveyors automatically complete the
investigation under the federal enforcement process.
[54] The violations and resulting sanctions are categorized according
to the state's classification framework. For example, a class AA
violation is one that, among other things, is a "direct proximate cause
of death of a patient or resident," and the resulting sanction is a
fine from $25,000 to $100,000. The state system for classifying
violations and sanctions does not directly correlate to the federal
scope and severity grid, and there is no direct equivalent to a G-level
deficiency. According to a California state survey agency official, a
class A violation is approximately equivalent to a G-level deficiency,
but there may be instances in which other classes of violations are
also equivalent to a G-level deficiency.
[55] Although California homes with histories of harming residents may
not be cited for double Gs and thus referred for immediate sanctions
under federal requirements, the state has it own policy for encouraging
such homes to improve quality of care--the state can triple CMPs for
violations that are repeated in a 12-month period. An assessment of the
effectiveness of California's approach under state licensure for
sanctioning homes with repeat violations was beyond the scope of this
report.
[56] The select district offices that participated in the pilot will
continue to cite federal deficiencies and impose federal sanctions; in
the uncommon situation where there is a violation of a state regulation
but not a federal regulation, the offices will use a state sanction.
According to comments from California, if complaint investigations find
harm to residents, all district offices are directed to complete the
investigations under state licensure authority or the federal complaint
procedure, depending on multiple variables.
[57] We excluded terminations from this analysis because terminations
rarely are implemented.
[58] When the CMP goes into effect, the fine starts accruing as of that
date.
[59] As noted, unlike CMPs, payment denial for DPNAs is required upon
implementation, not after appeal.
[60] See 42 U.S.C. §§ 1395i-3(h)(2)(B)(ii), 1396r(h)(3)(C)(ii), and
1320a-7a.
[61] In contrast, Pennsylvania nursing homes pay state CMPs upon
implementation, even if an appeal is pending. However, the state agency
may grant exceptions to this requirement for good cause.
[62] See Department of Health and Human Services, Office of Inspector
General, Nursing Home Enforcement: The Use of Civil Money Penalties,
OEI-06-02-00720 (April 2005).
[63] See the federal Surface Mining Control and Reclamation Act of
1977, Pub. L. No. 95-87, § 518, 91 Stat. 499 (1977) (classified to 30
U.S.C. § 1268, as amended).
[64] B & M Coal v. Office of Surface Min. Reclamation, 699 F. 2d 381
(7th Cir. 1983); Graham v. Office of Surface Min. Reclamation, 722 F.
2d 1106 (3rd Cir. 1983); Blackhawk Mining Co., Inc. v. Andrus, 756 F.
2d. 755 (6th Cir. 1983).
[65] CMS classifies the reasons for voluntary closure as "merger/
closure;" "dissatisfaction with reimbursement;" "risk of involuntary
termination;" and "other reasons for withdrawal."
[66] In commenting on a draft of this report, CMS noted that some of
the homes classified as voluntary terminations closed as a result of
coordinated CMS and state actions. In its comments, Michigan stated
that some voluntary terminations were the result of business decisions
after the homes received survey results that warranted serious
sanctions.
[67] Nationwide, the average number of serious deficiencies per home
from fiscal years 2000 through 2005 was less than one.
[68] This analysis includes cited deficiencies at the D, E, or F levels
of scope and severity. We include these deficiencies because, as we
previously reported, understatement by state surveyors of serious
deficiencies that cause actual harm or immediate jeopardy to residents
remains a concern. See GAO-06-117.
[69] In commenting on a draft of this report, Michigan noted that
relocation is especially challenging in rural areas or for residents
with special care needs.
[70] For this analysis we used CMS's Nursing Home Compare Web site
(http://www.medicare.gov/NHCompare), which permits users to search for
nursing homes by proximity to specific zip codes. We did not analyze
the number or availability of beds in the homes. There may have been
some changes in the number of nursing homes near the two homes that
closed voluntarily in January 2004 because of the time difference
between when these homes closed and the date we conducted our analysis
(June 2006).
[71] GAO-03-561.
[72] The on-line reporting tool known as Providing Data Quickly (PDQ)
is available through a Web site for use only by CMS and state survey
agency employees.
[73] Department of Health and Human Services, Office of Inspector
General, State Referral of Nursing Home Enforcement Cases, OEI-06-03-
00400 (December 2005).
[74] This example only includes a limited portion of the home's
compliance history from fiscal years 2000 through 2005.
[75] Three additional surveys conducted from March 27, 2000, through
November 29, 2000, were not included in this analysis because none of
the surveys had deficiencies at the G level or higher.
[76] While immediate sanctions were not imposed, CMS may have continued
an existing sanction or imposed a new sanction, which was rescinded
because the home corrected the deficiency.
[77] This aspect of the immediate sanctions policy does not affect the
retention of data on prior G-level or higher deficiencies in CMS's
OSCAR database.
[78] See GAO/HEHS-98-202, GAO-03-561, and GAO-06-117.
[79] This example only includes a limited portion of the home's
compliance history from fiscal years 2000 through 2005.
[80] While immediate sanctions were not imposed, CMS may have continued
an existing sanction or imposed a new sanction, which was rescinded
because the home corrected the deficiency.
[81] To gain a sense of how frequently multiple instances of harm are
treated the same as single instances of harm, we examined the
enforcement history of some of the homes cited with double Gs. Over
half of the surveys examined with multiple G-level or higher
deficiencies received sanctions similar to homes with a single G-level
or higher deficiency.
[82] GAO/HEHS-99-46.
[83] CMS's December 2004 "Action Plan (For Further Improvement of)
Nursing Home Quality."
[84] Additional CMS nursing home initiatives are described in CMS's
2007 "Action Plan for (Further Improvement of) Nursing Home Quality."
[85] GAO, Nursing Homes: Sustained Efforts Are Essential to Realize
Potential of the Quality Initiatives, GAO/HEHS-00-197 (Washington,
D.C.: Sept. 28, 2000).
[86] In commenting on a draft of this report, Michigan noted that it
recommends termination dates of less than 6 months for its Special
Focus Facilities and has received support from the CMS regional office
to do so. Michigan also noted that after one of its homes with a
history of cycling in and out of compliance was designated a Special
Focus Facility, the home's performance improved, and it will likely be
removed from the Special Focus Facility list.
[87] See GAO/HEHS-99-46. Because the homes reviewed for this report
were selected based on their poor compliance histories, the findings of
this report cannot be generalized to nursing homes in the states in
which the homes are located or to nursing homes nationwide. However, we
believe that the findings of this report illustrate the adequacy of
federal and state sanctions taken against homes with histories of
providing poor quality care to residents.
[88] Of the 11 original 74 homes we excluded, CMS involuntarily
terminated 5, and 6 closed voluntarily.
[89] We obtained the data from CMS on July 26, 2005.
[90] We received CMPTS data from CMS on April 21, 2006.
[91] See GAO/HEHS-99-46.
[92] In a small number of cases, the survey date recorded in PDQ did
not match the survey date in the enforcement data. Mismatches generally
occurred because the survey date in PDQ erroneously reflected another
survey, usually the first of the noncompliance cycle, even if there was
no G-level or higher deficiency on that survey, rather than the survey
on which the G-level or higher deficiency was cited. After consulting
with CMS, we adjusted the survey dates to reflect the correct dates.
[93] Page 30, draft report, GAO-07-241 Nursing Home Enforcement.
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Washington, D.C. 20548: