Nursing Homes
Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents Gao ID: GAO-07-241 March 26, 2007In 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ineffective in encouraging nursing homes to maintain compliance with federal quality requirements: sanctions were often rescinded before being implemented because homes had a grace period to correct deficiencies.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.
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.
RecommendationsOur recommendations from this work are listed below with a Contact for more information. Status will change from "In process" to "Open," "Closed - implemented," or "Closed - not implemented" based on our follow up work.
Director: Team: Phone:GAO-07-241, Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents
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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:
