Public information about enforcement actions imposed and upheld against nursing facilities is inaccurate and limited, or missing.
The Center for Medicare Advocacy (the Center) analyzed whether the federal website Nursing Home Compare to determine if it accurately reports civil money penalties (CMPs) that were imposed against nursing facilities and upheld by Administrative Law Judges (ALJs). The Center identified 18 decisions by ALJs on nursing home cases in calendar year in 2018.[1] These decisions address facilities’ appeals of deficiencies that were cited and CMPs that were imposed.
Information is inaccurate. The Center reviewed and compared the 18 nursing home decisions with the enforcement information reported on Nursing Home Compare. Three of the 18 decisions, which dismissed the facility’s appeal because no remedy had been imposed or the facility’s appeal was untimely or both, are excluded from this analysis. The analysis was conducted May 16-17, 2019.
The Center found a weak correlation between the deficiencies and CMPs cited in ALJ decisions and the deficiencies and CMPs that are included on Nursing Home Compare. For more than half the facilities, Nursing Home Compare does not include the CMP sustained by the ALJ. For only one-third of the facilities does Nursing Home Compare fully and accurately report the CMPs and deficiencies.
Of the 15 ALJ decisions that addressed enforcement actions, Nursing Home Compare reports that five facilities had no CMPs imposed at all in the prior three years, even though ALJs sustained CMPs in those five facilities, ranging from a $5,000 per instance CMP in one facility[2] to a $66,000 per day CMP in another facility.[3] (Nursing Home Compare includes the surveys whose deficiencies were discussed in the ALJ decision in three of the cases, but not in the other two cases where the surveys occurred in 2015 and 2016.)
For two facilities, Nursing Home Compare does not report the CMP and deficiencies upheld by the ALJ, but reports only a CMP related to a different survey.
For one facility, Nursing Home Compare includes the 2015 deficiency that was addressed in the decision, but not the CMP sustained by the ALJ.
For another facility, Nursing Home Compare reports the CMP, but not the 2017 survey report where the deficiencies were cited.
For another facility, Nursing Home Compare reports the CMP and the deficiencies, but, as discussed below, the ALJ’s earlier decision, which reduced the CMP, is not available on Nursing Home Compare.
Nursing Home Compare accurately reports the penalties that were upheld by ALJs and the survey reports addressed in the ALJ decisions in only five instances.
Information is missing. The list of ALJ decisions is itself incomplete. ALJ decisions are typically designated CR (for Civil Remedies) and are listed in ascending numerical order. The first CR decision in calendar year 2018 was dated January 5 and numbered CR5004. The last decision was dated December 19 and numbered CR5225. However, 54 CR numbers, nearly a quarter of the numbers between 5004 and 5225, are missing from the list. It is unknown whether ALJs issued decisions with those numbers and, if so, how many of those decisions reflect nursing home cases.
In one of the missing decisions, CR5064, an ALJ reduced the CMP from more than one million dollars to $26,373. We know about this decision only because in a later decision, CR5172 (Aug. 31, 2018), in which the ALJ denies attorneys’ fees to the facility’s attorneys, the ALJ briefly discusses why he reduced the CMP in his earlier decision.
In addition, at least two nursing home decisions in 2018 were designated ALJ Rulings, not CR. How many additional unreported ALJ Rulings addressed nursing home penalties is unknown.
Few decisions are reported. A third concern is how few ALJ decisions are reported. In 2008, there were 56 nursing home decisions; in 2009, 54 decisions. The small number of decisions issued in 2018 – 15 – has at least two potential causes, both of which support the finding that enforcement of federal standards of care has declined.[4] First, there may be few decisions because the Centers for Medicare & Medicaid Services is imposing few CMPs. If no fine is imposed, facilities have no right to an administrative appeal.[5] A second explanation may be that fines imposed by CMS are so small that facilities decide that the costs of appeal outweigh the benefits of appealing (that is, the possibility of reducing or eliminating the CMP). With the exception of the million dollar fine that was reduced to $26,373, the CMPs discussed in the ALJ decisions in 2018 were small – 12 of the CMPs were under $30,000.
Discussion. The information that is publicly
available on Nursing Home Compare is limited
and inaccurate and may mislead families into believing a facility has
not been sanctioned, when it has. The
information also supports the conclusion that the Federal Government is not
fulfilling its “duty and responsibility” under the Nursing Home Reform Law (1987)
“to assure that requirements which govern
the provision of care in skilled nursing facilities . . ., and the enforcement
of such requirements, are adequate to protect the health, safety, welfare, and
rights of residents and to promote the effective and efficient
use of public moneys.”[6]
[1] https://www.hhs.gov/about/agencies/dab/decisions/alj-decisions/2018/index.html.
[2] Upland Rehabilitation and Care Center v. CMS, CR5024 (Feb. 7, 2018).
[3] Lake Worth Nursing Home v. CMS, CR5054 (Mar. 23, 2018).
[4] Jordan Rau, “Trump Administration Eases Nursing Home Fines in Victory for Industry,” The New York Times (Dec. 24, 2017), https://www.nytimes.com/2017/12/24/business/trump-administration-nursing-home-penalties.html?searchResultPosition=1S; Toby S. Edelman, “Deregulating Nursing Homes,” Bifocal Vol. 39. No. 3, pp. 31-33 (Jan.-Feb. 2018), Https://www.americanbar.org/content/dam/aba/publications/bifocal/final-bifocal_39_3.pdf.
[5] 42 C.F.R. §498.3(b)(13).
[6] 42 U.S.C. §§1395i-3(f)(1), 1396r(f)(1), Medicare and Medicaid, respectively.