Nursing Home Decisions of the Department of Health and Human Services's Departmental Appeals Board, 2007, a report issued by the Center for Medicare Advocacy on May 14, reviewed all 85 nursing home enforcement decisions issued in 2007 by federal administrative law judges.  The report finds that the cases describe serious deficiencies in the quality of care received by residents, that nursing homes receive only modest fines, and that when facilities seek review of the penalties imposed against them, they lose the vast majority of their administrative appeals.  The cases reveal a need for stronger oversight and better enforcement of the 1987 Nursing Home Reform Law, which was enacted to ensure that all residents receive the highest possible quality of care and quality of life. 

Example: Strangulation Death on Bedrail.  $4050 Civil Money Penalty

Rehabilitation & Care Center of Jackson County, CR1590: Between November 2001 and March 2002, an 88-year-old resident at the Illinois nursing facility fell numerous times from her bed while her bed's side rail was raised.  On March 12, 2002, she "was found on the floor [uninjured] with her back against the bed, holding onto one of the half side rails with both hands, with her neck wedged between the half side rail and the mattress."  A week later, on March 19, she was found in the same position, "on the floor next to her bed with her head wedged between the half side rail and the mattress," but this time, without pulse, respiration, and blood pressure.  She had died of accidental strangulation.  The Centers for Medicare & Medicaid Services cited the facility with failure of supervision, at the immediate jeopardy level,[1] and with failure of assessment, at a non-jeopardy level.  The Administrative Law Judge sustained both deficiencies and both remedies, a $3050 per instance civil money penalty for the supervision deficiency and a $1000 per instance civil money penalty for the assessment deficiency. 

These are the facts, and the enforcement consequences, of one of the 85 nursing home cases decided by the Departmental Appeals Board (DAB) in 2007.  The Center's review and analysis of all 85 decisions issued by both divisions of the DAB in 2007 includes recommendations about improvements that should be made to nursing home enforcement practices and procedures.

Background

Under the federal survey and enforcement system, all facilities choosing to participate in the Medicare program or the Medicaid program, or both, are subject to federal surveys each year to determine whether they are meeting federal standards of care.  More than 95% of facilities nationwide participate in Medicare.  Surveys are typically conducted by state survey agencies, using forms and procedures established by the federal government.  Based on the recommendation of state survey agencies, the Centers for Medicare & Medicaid Services (CMS) imposes remedies against facilities participating in Medicare.  If remedies are imposed, facilities may file an administrative appeal to the DAB, first to the Civil Remedies Division, and then to the Appellate Division.  Review of DAB decisions is conducted by the federal courts.

The Report's Findings

Deficiencies for poor care that are cited against nursing homes, and appealed by facilities through the administrative appeals process, reflect serious failures in care – amputations of limbs, development of avoidable pressure sores, failure to give medications, overmedications, and wandering or elopements – that cause residents to suffer unnecessary pain, injury, trauma, and death. 

The report finds that most remedies imposed against nursing homes when deficiencies are found are modest:

• A resident admitted for short-term rehabilitation following surgery had her leg amputated when the facility failed to follow physician orders; the facility was fined $7500.

• A resident was denied pain medication for three months.  This deficiency was one of five deficiencies addressed by the Administrative Law Judge out of 17 cited by CMS; the facility was fined $7500 for all of the deficiencies.

• A resident was sexually assaulted by a certified nurse aide and staff failed to protect the resident from further assault or to report the assault; the facility was fined $12,000.

Of the 11 cases involving the death of a resident, only two imposed fines exceeding $100,000; fines in these cases ranged from $4050 to $269,950.  Only 11 of the 71 cases reaching the merits imposed fines exceeding $100,000.

Despite the seriousness of the failures in care and the modesty of the enforcement consequences, nursing facilities chose to pursue these cases through the administrative appeals process.  The report reveals that in almost all cases, the facilities lost.  CMS's decision to cite deficiencies and impose remedies was upheld in 66 of the 71 decisions (93%).  At the Appellate Division, CMS won all 18 cases decided on the merits (100%); at the Civil Remedies Division, 48 of 53 cases decided on the merits (90%).

The Report's Recommendations

In its Report, the Center recommends that the federal regulatory system, unchanged for more than a decade, be updated.  A stronger, faster, and more effective enforcement response is needed to address and remedy the serious noncompliance that is cited by survey agencies.  CMS must impose remedies for the existence of deficiencies, not just for facilities' failure to correct deficiencies.  Fines must be increased to reflect more accurately the seriousness of the harm that is identified.  New guidance to states should explain how to identify the appropriate duration of noncompliance.  New federal remedies are needed to respond more quickly and appropriately to failures in care.

In addition, more public information is needed about the survey and enforcement systems and about the appeals process. 

At present, there is little information available to the public about enforcement actions taken against facilities that are cited with deficiencies.  CMS does not publicize its enforcement activity, either at the time of imposing remedies against a specific nursing facility or in a monthly, quarterly, or annual report.  CMS's nursing home information website, Nursing Home Compare, identifies the number of deficiencies cited against facilities over a three-year period, but it identifies deficiencies solely by the regulatory provision that is cited.  The website does not describe what specific problems surveyors actually found and why surveyors cited the particular deficiency.  There is no link to the federal survey form, CMS 2567.  In addition, Nursing Home Compare does not include any information about enforcement actions. 

In November 2007, CMS began to publicize its Special Focus Facility (SFF) Initiative.  This Initiative requires state survey agencies to conduct an additional survey each year in facilities whose three-year survey history identifies them as providing exceptionally poor care.  In April 2008, CMS began to identify SFFs on Nursing Home Compare.  CMS's limited disclosure of poor care in a small number of facilities (134 facilities in April 2008) provides some new information, but may also have an unintended consequence of suggesting to the public that facilities without the SFF designation provide acceptable care.

CMS also does not publicize any information about facilities' administrative appeals – their number, substance, or outcome – and it should. 

Federal Legislation to Strengthen Nursing Home Enforcement

Senate bill S. 2641, the Nursing Home Transparency and Improvement Act of 2008, introduced by Senators Herb Kohl (D, WI) and Charles Grassley (R, IA) and currently pending in Congress, addresses a number of concerns identified in the Center's report.  The legislation strengthens enforcement by increasing the amounts of per day civil money penalties and including a fine of up to $100,000 for causing the death of a resident.  It authorizes a new national independent monitoring program to address quality of care problems in facilities with common ownership or management.  It calls on the Government Accountability Office to study the little-used 'temporary management' remedy, and to identify barriers to new owners purchasing facilities with records of providing poor care.

The legislation also strengthens public information by requiring CMS to report enforcement information on Nursing Home Compare and to include links to state survey agencies' website, with links to the survey forms (CMS 2567).

The full report is available at http://www.medicareadvocacy.org/SNF_08_05.13.DABNursingHomeDecisions.pdf.

For more information, contact Attorney Toby Edelman in the Center for Medicare Advocacy's Washington, DC office at (202) 293-5760 or at tedelman @ medicareadvocacy.org (remove spaces in email address).