CMA Alert -Spotlight on SNF Enforcement

1. Are Nursing Home Residents at Risk? New York Times and Los Angeles Times Report on SNF Deregulation
2. Special Issue Alert: Enforcement in Kansas

Are Nursing Home Residents at Risk? The New York Times and Los Angeles Times Report on SNF Deregulation

Two articles about skilled nursing facilities (SNFs) were published in the New York Times and Los Angeles Times last week, focusing on the Centers for Medicare & Medicaid Services’ (CMS) efforts to rollback oversight regulations, as requested by nursing home industry groups. CMS’s deregulatory efforts, coined “Patients Over Paperwork,” is of great concern to nursing home resident’s across the country because it may place residents at an even greater risk of harm, injury, or death.[1]

In the New York Times’ “Trump Administration Eases Nursing Home Fines in Victory for Industry,” reporter Jordan Rau highlights CMS’s latest work to reduce financial penalties against deficient nursing homes. The article provides that, in October 2017, CMS “discouraged” regional offices from issuing fines for what it called a “one-time mistake.”[2] This is a position that the Center for Medicare advocacy takes great issue with given that every nursing home that voluntarily participates in Medicare and Medicaid is required to provide each resident with services that will allow him or her “to attain or maintain the highest practicable physical, mental, and psychological well-being.”[3]

The New York Times article also brings further attention to CMS’s July 2017 memo discouraging the use of per day fines for violations that occurred before a nursing home inspection, allowing avoidable nursing home deaths to be met with fines less than $21,000; a penalty that nursing homes could write-off as the cost of doing business.[4] Adding to the concern of residents and their families, the article notes that CMS issued an 18-month moratorium on eight nursing home requirements in November 2017, meaning that nursing homes will not be financially penalized for violating those standards of care.[5] As Mr. Rau points out, “[t]he shift in the Medicare program’s penalty protocols was requested by the nursing home industry.”[6]

In “Infection lapses are rampant in nursing homes but punishment is rare,” published by the Los Angeles Times, Mr. Rau sheds light on how “basic steps to prevent infections . . . are routinely ignored” in nursing homes across the country.[7] Mr. Rau cites to a 2014 report by the HHS Office of the Inspector General (OIG) which states that infections were the primary cause for 26 percent of the harm that Medicare beneficiaries faced in nursing homes, the majority of which were preventable.[8] As the article notes, “inspection records show nurses and aides are often not familiar with basic protocols . . . others are not trained properly . . . [and] others, in a rush and understaffed, take shortcuts that compromise sanitary precautions.”[9] In light of such findings, the Obama Administration issued a Final Rule in October 2016 requiring every nursing home to develop an infection control and prevention program that includes an antibiotic stewardship program; unfortunately, the antibiotic stewardship program is one of the requirements that CMS has chosen not to properly enforce for the next 18 months.[10]

• To read “Trump Administration Eases Nursing Home Fines in Victory for Industry,” please visit https://www.nytimes.com/2017/12/24/business/trump-administration-nursing-home-penalties.html.
• To read “Infection lapse are rampant in nursing homes but punishment is rare,” please visit http://www.latimes.com/business/la-fi-nursing-home-infections-20171221-story.html.
• For more information on SNF deregulation, please visit the Center’s SNF webpage available at https://www.medicareadvocacy.org/medicare-info/skilled-nursing-facility-snf-services/.

Special Issue Alert: Enforcement in Kansas

I. What is Happening in Kansas?

The nursing home industry in Kansas is complaining about the increase in enforcement actions against deficient Kansas nursing homes. According to one industry group, the number of immediate jeopardy citations has jumped dramatically over the last few years and there is “no possible justification” for what they are characterizing as a 9,000 percent increase in nursing home fines.[1] The nursing home industry claims that these fines are financially crippling nursing homes. As one nursing home CEO said, it is “killing the goose that lays the golden egg.”[2]

One of the problems with the CEO’s statement is that it does not address the needs of nursing home residents in Kansas, which citations and fines show are not being met. A citation for actual harm or immediate jeopardy necessarily means that the Kansas Department of Aging and Disability Services (KDADS) found that a nursing home was seriously deficient in meeting the minimum standards of care for its residents. Given that multiple reports indicate that State Survey Agencies under-cite deficiencies (see below), the Centers for Medicare & Medicaid Services (CMS) and Kansas nursing homes should be taking immediate jeopardy and harm citations very seriously.

II. How Prevalent are Immediate Jeopardy Citations in Kansas?

According to Nursing Home Compare data, Kansas has 336 certified nursing homes throughout the state. Over the last three inspection cycles (years), KDADS has cited those nursing homes for 10,537 deficiencies. The majority of the deficiencies—93.3 percent—were cited as “no harm.”[3] As a result, KDADS has only cited resident harm or immediate jeopardy 6.7 percent of the time that a health deficiency was identified. In fact, contrary to what the nursing home industry lobbyists are trying to insist, immediate jeopardy citations accounted for just 2.6 percent of all Kansas health citations between 2013 and 2017 (as of publication).

III. How Much Have Kansas Nursing Homes Been Fined?

Kansas nursing homes have seen an increase in federal fines for violations of minimum standards between 2012 and 2016. However, it is critical to view the increases in context: in 2012, Kansas nursing homes were among the least likely in the country to face a fine for violating minimum care standards – even when those violations caused serious harm to vulnerable residents.[4] Federal law provides for two types of fines when a deficiency is identified: either a “per day” fine (in which a fine is imposed for every day that a facility is out of compliance with minimum health and safety standards) or a “per instance” fine (in which a single fine is imposed for the failure to comply with minimum health and safety standards).

In 2012, Kansas’ 336 nursing homes paid a total of only $4,680 in per day penalties. This is the lowest of any state in the country that imposed per day penalties that year. At the same time, Kansas nursing homes paid $37,875 in total per instance penalties in 2012. That is the third lowest among the states that imposed a per instance fine that year. In 2016, Kansas nursing homes paid $4,671,887.58 in total per day penalties and $20,965.50 in total per instance penalties. As a result, even with the increase from 2012, Kansas ranked 44 (out of 52) in per day fines and 20 (out of 52) in per instance fines in 2016. In addition, and contrary to the Kansas nursing home industry’s bombastic complaint that there have been unfair increases in fines for substandard care, Kansas’ rank in respect to average state fine for a per instance has actually gone down slightly: in 2012, Kansas ranked 38th highest in average per instance fine amount while in 2016 its rank fell to 36.

Although there was an increase in the total amount of penalties in Kansas, it is important to note that this reflected an increase in federal fines across the country during this time period. For instance, in 2012, 20 states plus DC and Puerto Rico had total per day penalties less than $100,000; by 2016, this was true only for six states and Puerto Rico. This increase may be attributed to increased awareness of the pervasiveness of nursing home resident abuse and neglect, and the actions taken by CMS and states in light of many reports indicating that State Survey Agencies, including KDADS, have been under-citing nursing home deficiencies. 

IV. How Can I Find Out About Citation Rates – and Deficiencies – in Kansas Nursing Homes?

Nursing Home Compare (http://www.medicare.gov/nursinghomecompare) provides information on individual certified nursing homes across the country. For each nursing home, citation rates for the last three inspection cycles can be accessed by clicking on the “Health Inspections” tab at the top of a nursing home’s page.

In order to provide the public with relevant information on Kansas nursing home citation rates, LTCCC’s Nursing Home Information & Data Page (on our http://nursinghome411.org website) has a searchable and downloadable file on every certified nursing home in Kansas. Kansas Citation Rates is searchable by facility name, city, and zip code. It can also be sorted based on the deficiency’s scope and severity level.

Additionally, LTCCC has a searchable and downloadable file on the amount of fines paid by nursing homes across the country. State Civil Money Penalties Against Nursing Homes: 2012-2016, is searchable by state, total number of CMPs per diem, total number of CMPs per instance, total dollar amount per diem, total dollar amount per instance, average dollar amount per diem, average dollar amount per instance, and average days in effect per diem. It can also be sorted based on year (2012-2016) and based on the highest or lowest values. The data are from the federal Medicare website. They have been formatted to make it easy for the public to access relevant information on nursing homes in their communities and states.

V. What Do the Citation Rates Actually Mean?

The nursing home industry has complained about what it sees as a dramatic rise of immediate jeopardy citations over the last three inspection cycles as being due to overzealous enforcement.[5] Yet, a September 2017 report by the Office of the Inspector General (OIG) for the U.S. Department of Health and Human Services indicates that the lower citation rates of previous inspection cycles may be the result of under-citing.[6] The OIG report finds that KDADS “did not conduct required standard surveys within 15 months of the previous standard surveys for 35 of 79 nursing homes in [calendar year] 2014.”[7] Furthermore, the report finds that the state agency “could not provide sufficient evidence that corrective actions had been taken by nursing homes for 13 percent of the deficiencies identified during surveys . . . .”[8]

The OIG’s findings are in accord with many reports regarding state agencies under-citing nursing home deficiencies and failing to recognize the extent to which residents suffer neglect and abuse. In fact, a 2008 report by the Government Accountability Office (GAO) underscores this lack of enforcement:

GAO reports since 1998 have demonstrated that state surveyors, who evaluate the quality of nursing home care on behalf of CMS, sometimes understate the extent of serious care problems in homes because they miss deficiencies . . . A substantial proportion of federal comparative surveys identify missed deficiencies at the potential for more than minimal harm level or above.[9] 

Therefore, while the nursing home industry claims that the recent increase in actual harm and immediate jeopardy citations in Kansas is the result of overzealous enforcement, the findings of the OIG and GAO indicate that the increase may very well be indicative of a State Survey Agency that has actually improved its efforts to ensure that residents are safe. As the OIG report states, KDADS “agreed with our findings and described corrective actions that it had taken or planned to take . . . [such as] to prioritize the completion of required standard surveys, and added that it would continue to monitor the frequency of surveys to improve compliance.”[10]

VI. What Does Immediate Jeopardy Actually Look Like in Kansas?

When a nursing home is cited by surveyors for failing to meet minimum standards, the citation is described in a Statement of Deficiencies (SoD). All SoDs are posted for public viewing in the nursing home profiles on Nursing Home Compare. A February 2017 inspection of Pinnacle Ridge Nursing & Rehab Center illustrates one instance where surveyors cited a Kansas nursing home for an immediate jeopardy deficiency.[11]

A quarterly assessment conducted in January 2017 showed that the resident had severe cognitive impairment. The resident’s care plan from November 2016 noted that the resident had trouble processing information and had trouble responding. The care plan specifically stated that staff should not push the resident to answer because the resident “may get angry and swing at you.”[12]

When state surveyors examined the resident’s record, the records showed that the resident suffered a skin tear on his or her right forearm; however, the nurses’ notes did not include documentation about the incident that led to the resident’s injury. The records did contain three witness statements indicating that a licensed nurse knocked the resident to the floor after the resident became aggressive. The licensed nurse’s statement stated that the resident attempted to hit the licensed nurse’s face.

During an interview, one of the witnesses stated that after coming back from a break, s/he saw the resident on the floor with the resident’s elbow bleeding, the resident’s eyes tearing, and the resident shaking. The resident was trying to get off the floor and was “scooting” away but the licensed nurse kept telling the resident not to get up. When the witnessed asked the licensed nurse what had happened, the licensed nurse stated “I knocked {his/her ass a**} to the floor.”[13] The witness had reported that the licensed nurse left the resident on the floor for “10-15 minutes.”[14]  When the licensed nurse finally picked up the resident, the witness stated that the licensed nurse pulled the resident up by the resident’s arms.

The state surveyors stated that the nursing home “failed to provide an environment free from abuse . . . [and] placed resident #1 in immediate jeopardy.”[15]

VII. References for More Information & Help

• Kansas Advocates for Better Care is the leading resident advocacy group in Kansas. 
• www.nursinghome411.org – LTCCC’s website provides facility and state level information on a variety of indicators relevant to nursing home quality, including staffing levels, citations and antipsychotic drugging rates.
• Elder Justice: What "No Harm" Really Means for Residents is a monthly newsletter published by the Center for Medicare Advocacy and the Long Term Care Community Coalition. The purpose of the newsletter is to provide residents, families, friends, and advocates information on what exactly a "no harm" deficiency is, how prevalent "no harm" deficiencies are, and what "no harm" actually means to residents. See https://www.medicareadvocacy.org/newsletter-elder-justice-what-no-harm-really-means-for-residents/.