In “How Nursing Homes’ Worst Offenses Are Hidden From the Public,” The New York Times reported on December 10, 2021 that the nursing home survey and enforcement systems keep hidden from the public important information about some of the poorest-performing nursing facilities and their failure to provide residents with good care. The Times documented how the appeals process, which is one-sided and excludes residents and their families, “operates almost entirely in secret.”
Secrecy about the quality of care provided by nursing facilities is even more pervasive than The New York Times reported. Secrecy begins with state survey agencies’ (SSA) failing to identify many deficiencies at all. It continues with SSAs’ classifying deficiencies they do cite as less serious than they actually are, misleading the public. Multiple systems – both informal dispute resolution and formal appeals to the Departmental Appeals Board – give facilities, and only facilities, the opportunity to challenge deficiencies that are cited. Residents and their families and advocates are completely excluded from these appeals processes. The federal public-facing website Care Compare provides limited information about penalties. And finally, public reporting that hides ongoing facility appeals for many years means that many of the most serious problems are never publicly reported on Care Compare.
The enforcement system needs to be made far more transparent and effective so that residents and their families can make better choices and hold facilities accountable.
The Process of Citing Deficiencies
State survey agencies fail to identify deficiencies
Residents’ advocates have said for years that surveyors do not cite deficiencies unless they see the facility’s noncompliance with their own eyes. This concern is legitimate and serious. A survey director told the writer of this Report that families in one facility had been complaining that there was limited or no staff on weekends. When the Clinton Administration added a requirement that surveyors begin a certain percentage of surveys on off hours (nights or weekends), and not begin all surveys at 8:00 a.m. Monday morning, a survey team began its survey in the middle of the night on Sunday. The team confirmed the absence of staff and a staffing deficiency was cited, for the first time, at the facility.
Repeated anecdotal reports indicate that facilities often know when surveyors are coming for “unannounced” standard (annual) surveys and are able to move staff and supplies into facilities in anticipation. The fact that surveys are so predictable – most SSAs generally conduct surveys at facilities at about the same time each year, even though the Nursing Home Reform Law gives them authority to conduct surveys on a nine-to-fifteen month basis – means that there is often little surprise in the timing of standard surveys. Not surprisingly, most of the most serious deficiencies are cited as a result of complaint surveys, which are both unannounced and totally unpredictable.
A research report in 2007 described observing surveyors as they conducted surveys and made decisions about deficiencies. The quality case study analysis found
At times the surveyors detected deficient facility practices, but these deficient practices did not result in a citation. These omissions occurred either through a deliberate process of decision-making on the part of the surveyors or the identified deficient practices never reached the decision-making stages. Omitted citations were in general not officially registered; hence, they disappeared from the federal enforcement process and escaped enforcement actions and regulatory scrutiny. (p. 13, section 3.1.2.2)
In 18 of 24 facilities included in the study, surveyors did not cite deficiencies that the project team believed should have been cited. Missed deficiencies included dehydration, weight loss, inappropriate use of restraints, inadequate supervision, abuse and neglect, inadequate pain management, and pressure ulcers. Some of the omitted citations were missed entirely, reported to the facility without formal citation, or issued as a state deficiency.
The research report described multiple reasons for surveyors’ failure to identify deficiencies, including insufficient time for survey teams to investigate concerns, hurried review of closed records, and surveyors’ investigative process (surveyor distraction, disorganized or incompetent team leader, and a chaotic process). Surveyors themselves identified “cumbersome paperwork,” a “shortened survey,” and the state’s “manpower shortage,” caused by a state’s hiring freeze, as reasons for not citing deficiencies.
State surveyors also told the research team that, at times, the decision not to cite a deficiency was deliberate. Sometimes, surveyors told the facility formally or informally about the non-cited deficiencies, believing the discussion was sufficient to get the facility’s attention and correction of the noncompliance. Some surveyors considered the non-cited deficiencies not significant enough to cite or suggested that there was no resident outcome from the noncompliance or not enough residents were affected to cite a deficiency. Some surveyors cited serious deficiencies under state law, not federal law, describing the state system as both less restrictive than the federal system and more effective. The research team found no basis for these surveyor beliefs.
Reports by the Government Accountability Office (GAO) similarly document states’ failure to cite deficiencies. In Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weakness, the GAO reported in 2008 that, between 2002 through 2007, 15% of federal surveys cited actual harm and immediate jeopardy deficiencies that SSAs had failed to cite and that “in nine states federal surveyors identified missed serious deficiencies on 25 percent or more of comparative surveys.” Missed deficiencies involved poor quality of care – nutrition, hydration, and pressure sore issues.
The GAO again reported the continuing understatement of serious deficiencies in 2009 in Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Commitment. The GAO reported that surveyors and SSA directors, responding to GAO questionnaires, described multiple reasons for the understatement of deficiencies, including
- weaknesses in the survey methodology (expressing concerns about “the length, complexity, and subjectivity of the written guidance”)
- workforce shortages at SSAs
- supervisory review not designed to identify understatement of deficiencies
- informal dispute resolution favoring facilities over residents
- state agency practices (“(1) not citing certain deficiencies, (2) not citing deficiencies above a certain scope and severity level, and (3) allowing nursing homes to correct deficiencies without receiving a citation”)
- interference in the survey process by, and external pressure from, the nursing home industry and state legislators
Again in 2010, the GAO revisited the issue of underciting of deficiencies. In Nursing Homes: Some Improvement Seen in Understatement of Serious Deficiencies, but Implications for the Longer-Term Trend Are Unclear, the GAO focused on federal oversight surveys, which continued to show that SSAs missed at least one serious deficiency in 14% of comparative surveys.
State survey agencies classify deficiencies as less serious than they actually are
The federal system for classifying deficiencies has four levels of severity, from substantial compliance (the lowest level, A-C) to no harm (D-F), actual harm (G-I), and immediate jeopardy (the highest level, J-L). One consequence of not having a neutral middle category of severity is that the overwhelming majority of deficiencies are called no harm.
The 2007 report about observed surveyor behavior described “a) the tendency toward increased questioning once a G‐level citation was suggested; b) socialization of trainees to make lenient decisions.” The research team described surveyor trainees’ arguing for, and fully supporting, a higher level deficiency, but ultimately deferring to other, more experienced team members.
States’ failure to cite deficiencies at the appropriate level also reflects some states’ practice of requiring that higher level deficiencies, such as harm or immediate jeopardy, be reviewed by supervisors before they are cited. The 2007 report about observed surveyor behavior cites a supervisor’s removal of three actual harm deficiencies that the registered nurse surveyor identified and continued to believe were supported. The supervisor found that sufficient evidence of harm had not been sufficiently documented. No similar supervisory review occurs for lower level (no harm or substantial compliance) deficiencies.
The need to complete surveys on a timely basis, made worse by staffing shortages at SSAs, can lead to surveyors’ decisions just to cite a deficiency at a lower level, complete the survey quickly, and move on.
The GAO reports cited above for their discussions of underciting deficiencies also identified the same causes for SSAs’ undercoding of deficiencies – that is, citing deficiencies as less serious than they actually are.
The monthly Elder Justice Newsletter, jointly issued by the Long Term Care Community Coalition and the Center for Medicare Advocacy, highlights “no harm” deficiencies that are cited by SSAs across the country, despite serious adverse consequences to residents. For example, in 2021, New York surveyors cited a “no harm” deficiency when a facility failed to implement a resident’s care plan to provide supervision to a resident at risk of falling. The resident died by asphyxiation when she fell in the bathroom and her fall caused the tie of her nightgown to tighten around her neck and act as a noose, cutting off oxygen to her brain.
CMS’s Quality, Certification, and Oversight Reports (QCOR) show the following classification of deficiencies by severity. As of January 10, 2023, no-harm deficiencies accounted for more than 90% of deficiencies in each year 2018 through 2022; actual harm or immediate jeopardy deficiencies accounted for, typically, only 5-6% of deficiencies.
Classification of Deficiencies, Calendar Years 2018-2022
| Calendar year | Total number of deficiencies, B and above | Number B-C | % B-C | Number no harm, D-F | % no harm | Number actual harm, G-I | % harm | Number immediate jeopardy, J-L | % jeopardy |
| 2018 | 133,968 | 5,462 | 4% | 121,781 | 90.9% | 4,485 | 3.3% | 2,240 | 1.7% |
| 2019 | 137,321 | 5,081 | 3.7% | 125,395 | 91.3% | 4,667 | 3.4% | 2,178 | 1.6% |
| 2020 | 68,302 | 1,531 | 2.2% | 61,505 | 90.0% | 2,603 | 3.8% | 2,663 | 3.9% |
| 2021 | 111,354 | 0 | 0 | 101,980 | 97.9% | 3,838 | 3.4% | 2,902 | 2.6% |
| 2022 | 108,233 | 2,313 | 2.1% | 99,360 | 91.8% | 4,005 | 3.7% | 3,555 | 3.3% |
Public Information about Appeals Is Limited during Informal and Formal Facility Appeals
The public is not informed when a facility files a request for informal dispute resolution and has no right to participate in a facility’s IDR proceeding
Federal regulations at 42 C.F.R. §488.331 allow a facility to request informal dispute resolution (IDR) (or independent informal dispute resolution, at 42 C.F.R. §488.431) to challenge the factual basis of a deficiency. There is no public record of a facility’s request for IDR or IIDR. As a result, there has been no way for the public to track deficiencies that are cited and to know if the state survey agency cited a deficiency that was later removed as a result of IDR or IIDR.
Eighteen states told The New York Times reporters that “About 37 percent of the time, the nursing homes succeeded in getting citations removed or reduced in severity” as a result of IDR. In Massachusetts, about 36 percent of deficiencies were deleted in IDR; in Connecticut, deficiencies were deleted or downgraded “nearly half the time.” Missouri and Florida also told the reporters that CMS told them not to provide the data on IDR to The New York Times.
In January 2023, CMS announced that it will post deficiencies while IDR or IIDR is pending, with a notation on Care Compare that the deficiency is under dispute. CMS will update Care Compare if deficiencies are removed or if their scope or severity is revised as a result of IDR or IIDR. This modest change will publicly identify deficiencies as they are cited. However, CMS will not explicitly state that a facility sought IDR or IIDR or, once IDR or IIDR is completed, that deficiencies were removed or revised in scope or severity following IDR or IIDR.
Moreover, residents and their families and advocates cannot participate in a facility’s IDR proceeding in order to support the SSA’s deficiency citation, even when the resident’s or family member’s complaint led to the survey that cited the deficiency. They also have no ability to appeal an SSA’s decision not to cite a deficiency, even when a resident or family member describes and documents the facility’s noncompliance to surveyors. The entire IDR process is treated as a dispute solely between a facility and the government.
The public is not informed when a facility files a formal appeal for an administrative hearing and has no right to participate in a facility’s appeal
When a nursing home files a request for an administrative appeal before an Administrative Law Judge (ALJ), The New York Times reports that the appeal is not public. The Departmental Appeals Board (DAB) maintains a docket of appeals as they are filed, but the docket is not made available to the public at any time. The public knows about a facility’s formal appeal only if and when an Administrative Law Judge issues a decision on the facility’s appeal, sustaining or rejecting the deficiencies and penalties. The ALJ decision is the only time that the public becomes aware of the facility’s appeal.
Residents and their families and advocates cannot participate in a facility’s administrative appeal before an ALJ in order to support the deficiency citation and penalty, even when the deficiency is based on a resident or family complaint and the resident or family have relevant information about the deficiency to present. They are not even permitted to file a declaration or an amicus statement supporting a deficiency. The entire appeals process is treated solely as a dispute between the facility and the government.
The Centers for Medicare & Medicaid Services may settle civil money penalties at any time without providing any notice to the public
The Center for Medicare Advocacy analyzed all 50 ALJ decisions released in calendar year 2020 that addressed nursing home deficiencies. The number of decisions reflects a miniscule percentage of the actual harm and immediate jeopardy deficiencies that were issued in 2016 through 2018, the three-year period reflected in the 2020 ALJ decisions. Federal regulations at 42 C.F.R. §488.444 authorize CMS to settle CMPS “at any time prior to a final administrative decision.” There is no public notice of these settlements.
If a facility’s appeal is settled outside the formal appeal, there is no public information about the facility’s appeal and how it was resolved. If the settlement involves a reduced CMP, the CMP will appear on the federal website, if the settlement occurred during a three-year window. As discussed below, later settlements will not appear on Care Compare. The New York Times identified at least 2,700 dangerous incidents that were “quashed during the secretive appeals process.”
Deficiencies cited by federal surveyors are not posted on Care Compare
As required by 42 U.S.C. §1395i-3(g)(3), federal surveyors conduct validation surveys to determine whether SSAs are conducting surveys and imposing penalties in compliance with federal requirements. The GAO has found that federal surveyors cite more deficiencies than state surveyors and that, between 2002 and 2007, about 15% of state surveys failed to cite actual harm or immediate jeopardy deficiencies, resulting in the GAO’s describing states’ understating of serious care issues.
As The New York Times reports, however, federal surveys are not reported on Care Compare. As an example, it describes a male resident’s sexual assault of a female resident at an Arizona nursing facility, which was confirmed by federal surveyors but not state surveyors. The deficiency cited by federal surveyors does not appear on the federal website.
The public is not informed of enforcement actions while formal appeals are pending
If a facility appeals a deficiency and enforcement action, information about the challenged penalties may not be posted on Care Compare until a “final” decision is made, which often means the issuance of the ALJ decision. Care Compare posts enforcement actions going back only three years. As a result, civil money penalties imposed more than three years earlier than the date of the ALJ decision are not publicly posted.
The ALJ appeal process can be so lengthy and delayed that the civil money penalties upheld in many ALJ decisions, including some of the largest penalties (which are often the penalties most likely to be appealed), are never publicly posted. The New York Times found that the deficiencies and penalties upheld in 10 of 76 ALJ decisions issued in 2020 and 2021 were not posted on the federal website. In one example, a Texas nursing facility appeared, on Care Compare, to have a perfect, no-deficiency record for four years. However, the facility had received an immediate jeopardy deficiency for failing to provide appropriate supervision for an 87-year old resident (who was known to wander) who eloped from the facility in cold weather and was found more than 30 minutes later lying in the facility’s parking lot, “her hair matted with blood and her nose broken.” The ALJ decision upholding the deficiency was issued four years after the deficiency was cited, beyond CMS’s three-year window for posting survey results and penalties.
An analysis by the Center for Medicare Advocacy of all 50 ALJ decisions released in calendar year 2020 that addressed nursing home deficiencies found that 10 decisions (20%) addressed surveys conducted in 2016. The penalties imposed in 2016 and upheld in 2020 would not be reported on Care Compare.
Care Compare does not provide sufficient information about penalties
The federal website provides information about surveys (conducted by state survey agencies), staffing levels, and enforcement actions (civil money penalties (CMPs) and denials of payment for new admissions (DPNA) only). However, Care Compare provides comparative information only about two domains for public reporting, surveys and nurse staffing. Comparative information enables the public to compare the facility with other facilities in the state and with national data. Care Compare currently identifies how many deficiencies were cited at the facility and how many were cited by the state and nationwide as a result of standard (annual) and complaint surveys. It also provides information about how many registered nurses, licensed practical nurses, and certified nurse aides were providing care in the facility, with comparative data provided for the state and country.
In contrast, information about enforcement actions is provided in a complete vacuum. While Care Compare reports CMPs imposed against a facility in the prior three years, it does not say how many CMPs were imposed by the state (or nationwide), it does not provide any information about the average amount of CMPs imposed by the state or nationwide, and it does not provide any information about the number of DPNAs imposed or their duration.
At present, for example, Care Compare could indicate that the state imposed a CMP of $15,000 against a facility, but the website does not report how many facilities in the state received CMPs or what their amounts were. Someone looking at Care Compare could not determine whether the $15,000 CMP was typical or unusual for the state or whether it was a low or high amount, compared to CMPs imposed by the state and across the country. There is simply no way to know.
Similarly, there is no comparative information about DPNA. How many did the state impose in the prior year? How long did the denial of payment last? How does the state’s use of DPNA as a penalty compare with national information about DPNAs? There is no information on Care Compare.
Care Compare includes no information about other penalties that the SSA or CMS may have imposed.
Recommendations
Greater transparency and accountability are needed in the survey and enforcement systems.
Recommendations to CMS:
Revise the scope and severity grid for the classification of deficiencies into five levels of severity in order to recognize a neutral middle and prevent the overclassification of deficiencies as no harm or substantial compliance.
Revise surveyor guidance to ensure that facility noncompliance is properly described and classified.
Provide additional guidance to SSAs to ensure that standard surveys are conducted on the full nine-to-fifteen month cycle provided by the Nursing Home Reform Law so that standard surveys are less predictable. Include the timing of surveys as a component of the federal government’s evaluation of state agency performance.
Require SSAs to review a designated percentage of no-harm deficiencies cited by a survey team to determine whether the teams has been too lenient and should have cited the deficiencies at higher levels. Review by supervisors should not be limited to harm and jeopardy deficiencies cited by a survey team.
Direct SSAs to use specialized surveyors, as authorized by the Nursing Home Reform Law. SSAs need to have specialized surveyors available for surveys when deficiencies are anticipated in certain areas. For example, if a facility gives psychotropic drugs to an unusually large percentage of its residents, a pharmacist should be available to participate in the facility’s survey. Although all surveyors are trained and qualified to cite deficiencies in all areas, health care professionals are likely to feel more comfortable when surveying for issues related to their professional discipline.
Post comparative information about CMPs and DPNAs on Care Compare to make the information more meaningful for the public.
Amend the regulations for informal dispute resolution to authorize residents and their families and advocates to participate.
Amend the regulations for formal appeals to inform the public of the filing of a request for an appeal and authorize residents and their families and advocates to participate, either in person or by filing declarations and a brief.
Amend the regulations to create a process by which residents and their families and advocates, including the state long-term care ombudsman program, can appeal the failure of the survey team to cite a deficiency.
Recommendations to Congress
Increase the federal survey budget so that states can hire and train sufficient numbers of surveyors.
Recommendations to the Departmental Appeals Board
Post on the DAB website the list of docketed appeals.
Amend DAB rules to permit residents and their families and advocates to participate in formal appeals by filing sworn declarations and a brief. Authorize ALJs, at their discretion as defined by federal regulations, to allow residents and their families and advocates to testify at hearings or submit sworn declarations and briefs, and, if the appeal is decided on the written record or summary judgment, to submit sworn declarations and briefs.
February 2, 2023 – T. Edelman