CMA Alert – June 20, 2019

1. New Medicare Home Health Fact Sheet
2. Special Report – “Graduates” From the Special Focus Facility Program Provide Poor Care
3. Center for Medicare Advocacy Submits Joint Comments on Proposed Revisions to the Definition Of Group Therapy In Skilled Nursing Facilities

New Medicare Home Health Fact Sheet

One of the core considerations of the Center for Medicare Advocacy’s Medicare Platform is to reduce ongoing barriers to care. Home health is one area in particular where the Center has seen a disturbing increase in access issues. Advocates, policy-makers and CMS must all work to ensure access to home health coverage and care is actually available for all beneficiaries who meet coverage criteria, ensure access to legally authorized home health aides, and resolve conflicts between payment models and coverage laws.

As part of our efforts, the Center continues to develop educational resources, including our latest Medicare Home Health Coverage Fact Sheet. This one-pager explains coverage that should be available under Medicare law, problems accessing that coverage, and possible solutions.

• Download our Medicare Home Health Fact Sheet at https://www.medicareadvocacy.org/wp-content/uploads/2019/06/Home-Health-Fact-Sheet-June-2019.pdf.

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Special Report – “Graduates” From the Special Focus Facility Program Provide Poor Care

The Centers for Medicare & Medicaid Services (CMS) identifies about 88 nursing facilities – generally one to two facilities per state – that are among the most poorly performing facilities in the country.[1] These nursing facilities, which CMS calls Special Focus Facilities (SFFs), have “more problems” than other facilities, “more serious problems” than other facilities, and “a pattern of serious problems that has persisted over a long period of time” (i.e., the prior three years).[2] CMS describes these especially troubled facilities as making “enough improvements in the presenting problems” to be found in substantial compliance. However, at the next survey, they are again cited as out of compliance because they failed to address “underlying systemic problems.”[3] CMS established the SFF initiative in order to address the problem of these “yo-yo” facilities.

Each month, among other categories of SFFs,[4] CMS identifies facilities that have “graduated” from the SFF program. The standards for graduation are vague. CMS describes graduates as SFFs that have “made significant improvements in quality of care – and those improvements are continued over time.”[5] CMS does not explain how or when or by whom graduation decisions are made. As shown below, CMS’s positive description of graduates does not reflect the many recent graduates that continue to have serious deficiencies, multiple complaint surveys, and inadequate nurse staffing.

The Center’s analysis is consistent with The New York Times report in July 2017, which found that 52% of 528 SFFs that graduated before 2014 were cited with serious harm or jeopardy in the years after they graduated.[6] More than one-third of the facilities received the lowest federal rating for health and safety.

This Study

The Center for Medicare Advocacy looked at information on Nursing Home Compare for each of the 21 SFF graduates on CMS’s May 16, 2019 list.[7] Four facilities had new names on Nursing Home Compare.

Deficiencies

The Center’s most troubling finding is that, in calendar year 2018, six of the 21 facilities were cited with one or more harm or immediate jeopardy deficiencies, the two highest categories of noncompliance in the federal regulatory system.  These deficiencies reflect serious care concerns when, nationwide, fewer than 5% of deficiencies are classified as causing harm or jeopardy.[8]

Helia Healthcare of Champaign (known on Nursing Home Compare as Champaign Rehab Center, although its legal business name is Helia Healthcare of Champaign, LLC) was cited with three jeopardy-level supervision deficiencies in early 2018, all of which involved the death of a resident. The deficiency on January 9, 2018 was based on the facility’s failure to monitor residents who were known to wander. One resident left the facility without the staff’s knowledge on December 30, 2017 and “was found dead outside an opened exterior kitchen door in sub-zero weather.”[9]  Four other residents who wandered were also at risk. The March 6, 2018 deficiency was based on the facility’s failure to provide one-on-one supervision to a resident with swallowing disorders; the resident choked and died.[10] The third jeopardy-level supervision deficiency, cited March 28, 2018, was based on the facility’s failure to ensure that a mechanical lift was safe. A resident fell from the lift two times, suffering a brain bleed. The resident was transferred to a different facility and died.  Seventeen other residents were at risk from “the same supply of poorly maintained mechanical lift slings.”[11]

The Michigan state survey agency’s complaint survey at Chalet of Niles on March 30, 2018 cited 19 deficiencies, including one jeopardy-level deficiency and one harm-level deficiency. The jeopardy-level, for infection control, was based on the facility’s failure “to perform surveillance, identify, investigate and implement measures to prevent a gastro-intestinal illness outbreak among staff and from 5 of 20 sampled residents.”[12] The harm-level deficiency was based on the facility’s failure to prevent the development of avoidable pressure sores in two residents.

Following a January 13, 2019 complaint survey, the Ohio state survey agency cited an actual harm deficiency at Continuing Healthcare of Gahanna for failure to provide adequate supervision to prevent the fall of a resident who was at high risk for falls. Staff did not respond to “an interior door alarm sounding” and the resident “sustained a fall down a flight of steps resulting in a leg laceration and hospitalization.”[13]  Two other residents were also at risk for falls.

The Center questions why CMS gave graduation status to facilities providing such poor care to residents.

Surveys

State agencies conduct standard surveys annually at all nursing facilities and an additional standard survey at SFFs. In addition, they conduct complaint investigations. Most of the graduates had several complaint investigations in 2018 and many of these investigations led to the citation of harm and jeopardy deficiencies. For example, the Illinois state survey agency conducted three complaint surveys in 2018 at Helia Healthcare of Champaign (Champaign Rehab Center) and cited an immediate jeopardy supervision deficiency following each survey. The Kansas state survey agency cited two immediate jeopardy deficiencies at Woodlawn Care and Rehab following a complaint survey on May 8, 2018.

Staffing

Nursing facilities are rated on a five-point scale, with one being the lowest rating and five the highest. Eleven of the 20 facilities with ratings[14] had staffing levels that were either “below average” (two stars) or “much below average” (one star). Three of the four facilities with a one-star rating in staffing also had icons reflecting their failure to submit staffing data as required by CMS or their failure to have a registered nurse on site for eight hours per day for at least four days in the prior quarter. Seven graduates had two-star ratings in staffing.

Overall ratings

Overall ratings use health inspections as the starting point. High ratings in staffing or quality measures or both increase the overall rating by one star each; low ratings in staffing or quality or both decrease the overall rating by one star each. Quality measure ratings are particularly suspect[15] because they are largely self-reported.

Seven facilities had overall ratings that were higher than their health inspection ratings. Four of the seven facilities reported information that gave them five stars in quality measures; the five-star ratings boosted the facilities’ overall ratings from one star to two stars. For two facilities, the four-star staffing rating boosted its overall rating from one star to two stars. For the seventh facility, the four-star rating in staffing boosted the overall rating from two stars to three stars.

Enforcement

Enforcement actions imposed against SFFs are limited and reflect the substantial decline in federal enforcement actions, as the Administration shifted from per day to per instance civil money penalties (CMPs) and invited enforcement actions other than financial penalties.[16]

Woodlawn Care and Rehabilitation graduated from the SFF program, even though CMS cited the Kansas facility with two immediate jeopardy deficiencies on May 8, 2018 and imposed a CMP of $5,902 (considerably less than the $24,478 CMP that CMS imposed when it cited two immediate jeopardy deficiencies at the facility on June 29, 2017).

Helia Healthcare of Champaign (Champaign Rehab Center) was cited with three immediate jeopardy deficiencies, one each following complaint surveys on January 9, 2019, March 6, 2018, and March 28, 2018. CMS imposed denial of payment for new admissions as the sole sanction for the March 6 jeopardy-level supervision deficiency. (In contrast, in August 30, 2017, the facility received a CMP of $7150 for a harm-level deficiency in supervision; following the annual survey on November 13, 2017 that cited 20 no-harm deficiencies and one citation of substantial compliance, CMS imposed a CMP of $13,627.)

On March 24, 2017, Barnes Healthcare was cited with one immediate jeopardy deficiency. CMS imposed a CMP of $9,296. On August 10, 2017, when the Arkansas nursing facility was cited with four immediate jeopardy deficiencies, the enforcement action was denial of payment for new admissions.

Benbrook Nursing and Rehabilitation Center was cited with 12 immediate jeopardy deficiencies in March 2017, but no CMPs were imposed.

Recommendations

CMS must substantially revise its criteria and process for removing facilities from their status as SFFs. CMS must not allow facilities with significant deficiencies, multiple complaint surveys, or inadequate staffing levels to graduate from the SFF program.

The Center recommends that CMS’s revised graduation policy ensure that a facility not be removed from SFF status until it:

• Has not been cited with a harm-level or immediate jeopardy deficiency for an entire year;
• Has not been cited with four or more no-harm deficiencies for an entire year;
• Has not had more than two complaint surveys conducted for an entire year;
• Has staffing levels of at least four stars for an entire year.

Facilities that have been selected for the SFF program because of a multi-year history of providing extremely poor care should not graduate until they have fully returned to compliance and demonstrated their sustained compliance for a full year. To allow facilities to graduate when they were recently cited with significant deficiencies, had multiple complaint surveys, or had inadequate staffing invites the recidivism that The New York Times documented two years ago.  Residents deserve better.

The May 16, 2019 Graduates from the Special Focus Facility Program

_______________________

[1] On June 5, 2019, Senators Bob Casey (D-PA) and Pat Toomey (R-PA) released the April 2019 list of “candidate” facilities for the Special Focus Facility Program, which they described as “indistinguishable” from special focus facilities.  They also issued a report about the program, Families’ and Residents’ Right to Know: Uncovering Poor Care in America’s Nursing Homes (June 2019).  The list and report are available at https://www.aging.senate.gov/imo/media/doc/Casey%20Toomey%20SFF%20Report%20June%202019.pdf.
[2] CMS, “Special Focus Facility (“SFF”) Initiative,” https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf.
[3] Id.
[4] The five monthly lists are newly-added, improved, not improved, graduated, and terminated.
[5] CMS, “Special Focus Facility (“SFF”) Initiative,” https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf.
[6] Jordan Rau, “Poor Patient Care at Many Nursing Homes Despite Stricter Oversight,” The New York Times (Jul. 5, 2017), https://www.nytimes.com/2017/07/05/health/failing-nursing-homes-oversight.html.
[7] The Center reviewed the SFFs on Nursing Home Compare June 7-11, 2019.
[8] CMS, Nursing Home Data Compendium 2015 Edition, Figure 2.2.e. Percentage Distribution of Scope and Severity of Health Deficiencies: United States, 2014, p. 48 (showing 0.9% of deficiencies as immediate jeopardy; 2.3% of deficiencies as actual harm), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/nursinghomedatacompendium_508-2015.pdf.
[9] https://www.medicare.gov/nursinghomecompare/InspectionReportDetail.aspx?ID=145924&SURVEYDATE=01/09/2018&INSPTYPE=CMPL. Pp. 1-4.
[10] https://www.medicare.gov/nursinghomecompare/InspectionReportDetail.aspx?ID=145924&SURVEYDATE=03/06/2018&INSPTYPE=CMPL. Pp. 1-3.
[11] https://www.medicare.gov/nursinghomecompare/InspectionReportDetail.aspx?ID=145924&SURVEYDATE=03/28/2018&INSPTYPE=CMPL. Pp. 1-5.
[12] https://www.medicare.gov/nursinghomecompare/InspectionReportDetail.aspx?ID=235361&INSPTYPE=STD&SURVEYDATE=03/30/2018. Pp. 26-34.
[13] Id. Pp. 9-14.
[14] Benbrook Nursing and Rehabilitation Center in Texas was identified as a Special Focus Facility on June 11, 2019.  Nursing Home Compare does not report star ratings for SFFs.
[15] Katie Thomas, “Medicare Star Ratings Allow Nursing Homes to Game the System,” The New York Times (Aug. 24, 2014), https://www.nytimes.com/2014/08/25/business/medicare-star-ratings-allow-nursing-homes-to-game-the-system.html?searchResultPosition=1.
[16] Jordan Rau, Kaiser Health News, “Trump Administration Cuts The Size Of Fines For Health Violations in Nursing Homes,” NPR (Mar. 15, 2019), https://www.npr.org/sections/health-shots/2019/03/15/702645465/trump-administration-cuts-the-size-of-fines-for-health-violations-in-nursing-hom; Toby S. Edelman, “Deregulating Nursing Homes,” Bifocal (Vol. 39, Issue 3, Dec. 4, 2018), https://www.americanbar.org/groups/law_aging/publications/bifocal/vol–39/issue-3–february-2018-/DeregulatingNursingHomes/.

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Center for Medicare Advocacy Submits Joint Comments on Proposed Revisions to the Definition Of Group Therapy In Skilled Nursing Facilities

On April 25, 2019, the Centers for Medicare & Medicaid Services (CMS) published a notice of proposed rulemaking that would revise the definition of group physical, speech and occupational therapy to allow six residents, rather than four, to participate in a group therapy session. If finalized, the rule would place even more nursing home residents at risk of receiving less individualized therapy. The Center for Medicare Advocacy (the Center) and other advocacy organizations have submitted joint comments detailing our concerns:

• Under the Patient Driven Payment Model (PDPM), which will be implemented in October 2019, Medicare reimbursement will be based on patient characteristics and not therapy minutes. As a result, nursing homes will have a financial incentive to provide the least costly mode of therapy possible to residents, rather than the highest quality for each individual.
• While only 25% of a resident’s therapy regimen, by discipline, can be provided in group or concurrent therapy, CMS makes clear that there “will be no penalty for exceeding the 25% combined . . . therapy limit.” This failure to properly enforce the group therapy limit means that nursing homes will not be held accountable for putting financial incentives over resident care.
• By revising the definition of group therapy to allow more residents to participate in one group therapy session, CMS will make it easier for nursing homes to forego individual therapy for even more residents – without meaningful accountability.

To access our comments, please visit https://www.medicareadvocacy.org/joint-comments-on-snf-billing-quality-programs/.

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