As part of the Biden-Harris Administration’s implementation of its comprehensive nursing home reform agenda, the Centers for Medicare & Medicaid Services (CMS) announced new surveyor guidance, making two significant changes to its quality rating system for nursing homes and its public-facing website Care Compare.
First, CMS addresses the issue of antipsychotic drugs, which are harmful and can be life-threatening for residents who have dementia. CMS’s Five Star Quality Rating System reports the percentage of long-stay residents who take antipsychotic drugs, excluding residents who have schizophrenia (or Huntington’s disease or Tourette syndrome). Mounting evidence over the years has established that some nursing facilities falsify schizophrenia diagnoses in order to avoid having their true antipsychotic drug rates posted and counted in their quality measure (QM) rating on the federal website.
In 2016, CMS began conducting focused schizophrenia onsite surveys to identify facilities’ inappropriate coding of schizophrenia in resident assessments (MDS). The New York Times reported in 2021 that “Phony Diagnoses Hide High Rates of Drugging at Nursing Homes.” Higher proportions of Black residents are inappropriately diagnosed with schizophrenia. In November 2022, the Office of Inspector General reported additional evidence of nursing facilities’ falsification of MDS data – “a 194% increase in the number of residents reported in the MDS as having schizophrenia but who lacked a corresponding schizophrenia diagnosis in their Medicare claims and encounters (2015-2019),”
Under CMS’s new guidance for surveyors, CMS will conduct offsite audits of schizophrenia coding by facilities. If CMS identifies coding inaccuracies, it will adjust nursing facilities’ QM rating on Care Compare as follows:
- The Overall QM and long stay QM ratings will be downgraded to one star for six months (this drops the facility’s overall star rating by one star).
- The short stay QM rating will be suppressed for six months.
- The long stay antipsychotic QM will be suppressed for 12 months.
If a facility admits miscoding when notified by CMS that it will be audited, and if the admission occurs before the audit begins, “CMS will consider a lesser action related to” the facility’s star ratings described above.
While this guidance is a positive step forward in CMS’s decade-long effort to reduce the inappropriate and life-threatening administration of antipsychotic drugs to nursing home residents, more needs to be done.
First, CMS needs to cite deficiencies for inappropriate administration of these drugs and to impose meaningful financial penalties. The Center for Medicare Advocacy found in its 2013 study of antipsychotic drug deficiencies in nursing facilities that 95% of antipsychotic drug deficiencies were classified as “no harm,” and, as a consequence, financial penalties were exceedingly rare. The Inspector General’s 2022 report similarly found limited enforcement. In 2011, there were 3,415 citations for psychotropic drugs and only 152 civil money penalties.
Second, CMS needs to address the broader issue of the administration of psychotropic medications (of which antipsychotic drugs are one sub-category). The Inspector General reported that 80% of long-stay residents took a psychotropic drug between 2011 through 2019. Facilities shifted to psychotropic drugs that were not classified as antipsychotics (and therefore not included in CMS’s antipsychotic drug campaign).
The second change made by the January 18 guidance is CMS’s commitment to report on Care Compare all deficiencies that are cited while facilities appeal them through the informal dispute resolution (IDR) process. CMS points out that deficiencies challenged in IDR can include the most serious instances of noncompliance and that most of the deficiencies are unchanged after IDR. Deficiencies in IDR will not be included in CMS’s calculation of the star rating for the health inspection domain on Care Compare, however, unless and until they are upheld in IDR. This change is consistent with the Nursing Home Reform Law, at 42 U.S.C. §§1395i-3(g)(5)(A)(i), 1396r(g)(5)(A)(i), Medicare and Medicaid, respectively, which requires states and CMS to make available to the public all survey information, “including statements of deficiencies, within 14 calendar days after such information is made available to those facilities.”
In addition, CMS should confirm that deficiencies that facilities formally appeal to an administrative law judge (ALJ) are posted on Care Compare during the appeal. In a 2021 article entitled “How Nursing Homes’ Worst Offenses Are Hidden From the Public,” The New York Times documented how CMS’s secretive appeals process hides some of the most serious deficiencies. It reported, among other findings, that deficiencies upheld in 10 of 76 ALJ decisions issued in 2020 and 2021 were not publicly reported.
January 19, 2023 – T. Edelman