According to an analysis by the Center for Medicare Advocacy (the Center) few sanctions are imposed for the poor care provided by nursing facilities identified by the Federal Government as among those providing the poorest quality of care and quality of life to residents – Special Focus Facilities (SFFs). The Center's analysis documents an enforcement system that is weak and timid in dealing with even the poorest quality nursing facilities and debunks the industry's claim that the federal enforcement system is overly stringent, punitive, and unfair. In addition, the Center's analysis indicates that SFFs have high rates of participation in the nursing home industry's voluntary quality campaign – Advancing Excellence – demonstrating that the voluntary campaign cannot replace a mandatory public oversight system.
Under the 1987 Nursing Home Reform Law, the Centers for Medicare & Medicaid Services (CMS) establishes standards of care that nursing facilities participating in Medicare or Medicaid, or both, must meet; a survey process that identifies noncompliance with federal standards and cites federal deficiencies; and a system of regulatory enforcement, including intermediate sanctions that may (and in some limited situations, must) be imposed against facilities that fail to meet federal quality standards.
Since the Clinton Administration, CMS (then, the Health Care Financing Administration) has hosted a public website with information about nursing homes. Over the past decade, the website, called Nursing Home Compare, has increased the types of information that is made available to the public, providing expanded information about survey deficiencies, nurse staffing, and enforcement actions. At present, Nursing Home Compare reports two of the major enforcement actions authorized under federal law – civil money penalties (CMPs) and denials of payment for new admissions (DPNAs) – that were imposed against a facility in the prior three years.
Special Focus Facility Program
Each month, the Centers for Medicare & Medicaid Services (CMS) identifies nursing facilities which are among the facilities nationwide that provide the poorest care to their residents, as determined primarily by federal health deficiencies and, to a limited extent, by self-reported and unaudited nurse staffing levels and quality measures. These poorest facilities are called Special Focus Facilities.
There were 15,622 certified nursing facilities in the United States in 2010. As of November 15, 2012, CMS identified 35 facilities from 21 states as "newly added to the SFF program" in the prior few months, with time on the SFF list ranging from zero to five months (Table A) and 43 facilities from 28 states that had not improved, with time on the SFF list ranging from four to 43 months (Table B) – a total of 78 facilities, or approximately .005% of the total number of facilities nationwide. CMS also identified 56 facilities that had improved, with time on the SFF list ranging from two to 47 months (Table C), 14 facilities that had "graduated" from the SFF program (Table D), and three facilities that no longer participate in Medicare and Medicaid (Table E).
The Center for Medicare Advocacy's Analysis
On December 19, 2012, the Center reviewed two categories of SFFs: the 35 newly-added SFFs (Table A) and the 56 facilities that had not improved (Table B), as published by CMS on November 15, 2012. The Center looked at each facility's listing on Nursing Home Compare, specifically, the section called "Penalties," to determine whether CMS had imposed Civil Money Penalties (CMPs) or Denial of Payment for New Admissions (DPNAs), or both, or neither, against newly-added SFF and SFFs that had not improved.
The Center for Medicare Advocacy's Findings
The Center found that of the 35 newly-added SFFs:
- 5 SFFs (14%) had CMPs, but no DPNAs, imposed against them in the prior three years
- 4 SFFs (11%) had DPNAs, but no CMPs, imposed against them in the prior three years
- 15 SFFs (43% ) had both CMPs and DPNAs imposed against them in the prior three years
- 9 SFFs (26%) had neither any CMPs nor any DPNAs imposed against them in the prior three years
13 SFFs (37%) had no CMPs imposed against them.
The CMPs that were imposed were relatively small in amount. The CMPs imposed against each of six newly-added SFFs in the prior three years totaled less than $10,000. Only six newly-added SFFs had CMPs exceeding $50,000. A single SFF had total CMPs exceeding $100,000.
Although all 35 SFFS received the lowest rating in health surveys (one star on a five-star scale), many of the SFFs reported considerably higher ratings in the self-reported sections reflecting Staffing and Quality Measures. For example, the four Florida facilities on the newly-added SFF list reported nurse staffing levels that gave them four stars. On the Quality Measures, one Florida facility received three stars, two facilities received four stars, and one facility received five stars (the highest number).
Similar results were found for the 41 SFFs that had not improved (Table B). (Two of the 43 facilities on Table B were not found on Nursing Home Compare.)
The Center found that of the 41 SFFs that had not improved:
- 12 SFFs (29%) had CMPs, but no DPNAs, imposed against them in the prior three years
- 6 SFFs (15%) had DPNAs, but no CMPs, imposed against them in the prior three years
- 21 SFFs (51% ) had both CMPs and DPNAs imposed against them in the prior three years
- 2 SFFs (5%) had neither CMPs nor DPNAs imposed against them in the prior three years
8 of the 41 SFFs (20%) had no CMPs imposed against them.
The CMPs that were imposed were relatively small in amount. The total CMPs imposed against each of ten SFFs (24%) that had not improved were less than $10,000. Only 12 SFFs that had not improved (29%) had CMPs exceeding $50,000. Only six SFFs (15%) had significant CMPs, with total CMPs exceeding $100,000.
Despite receiving the lowest rating in health surveys (one star on a five-star scale), many of the SFFs that had not improved, like the newly-added SFFs, reported considerably higher ratings in the self-reported sections reflecting nurse Staffing and Quality Measures. For staffing, 10 of the 41 SFFs (24%) received 4 stars and five of the 41 SFFs (12%) received 5 stars, based on self-reported staffing information. For Quality Measures, 13 of the 41 SFFs (31%) received 4 stars and two of the 41 SFFs (5%) received 5 stars, again, based on self-reported information.
The Nursing Home Industry Calls for Less Enforcement
A recurring theme for the national nursing home trade associations is criticism of the enforcement system as punitive and unfair. LeadingAge, formerly the American Association of Homes and Services for the Aging, which represents not-for-profit facilities, has described the regulatory system as "Broken and Beyond Repair." In an August 2011 Issue Brief, LeadingAge wrote, "the overwhelming burdens of the survey and certification process are punitive to providers, misleading to consumers and do little to measure or support quality improvement" and urged Congress to "direct the Institutes of Medicine to reexamine the nursing home oversight process to evaluate its effectiveness in ensuring excellence of care and to recommend improvements." Recently, LeadingAge reiterated its call for creation of "a fair, consistent oversight system for nursing homes."
The American Health Care Association (AHCA), which represents for-profit, not-for-profit, and government facilities, has similar legislative goals. In a July 2011 Issue Brief, AHCA supported H.R. 6074, Enhancing Quality through Survey System Improvements Act, which, among other changes, would reduce surveys to half a day in "top tier" facilities for two of three years in a survey cycle and would require surveyors to identify "areas of excellence" as well as deficiencies. In its recent 2012 Quality Report, AHCA contends that the increased number of facilities receiving four and five star in the Quality Measures shows that nursing home quality has improved. As demonstrated above, however, many SFFs report information that gives them high scores on Quality Measures, even as survey agencies rank them among the facilities in the country that provide the poorest quality of care to their residents.
Both trade associations point to facilities' participation in Advancing Excellence as evidence of the industry's commitment to nursing home quality. There is, however, based on the Center's analysis, no apparent correlation between facilities' participation in Advancing Excellence and facilities' actually providing high quality care. On December 20, 2012, Advancing Excellence reported that 56.7% of facilities nationwide participated in the Campaign. The same day, the Center reviewed SFFs' participation in the Campaign and found that participation rates for SFFs are similar – 48% of newly-added SFFs and 46% of SFFs that had not improved were current participants in Advancing Excellence.
Nearly ten years ago, William J. Scanlon, then Director of Health Financing and Public Health Issues for the Government Accountability Office (GAO), testified before the Senate Finance Committee on the GAO's most recent nursing home report. Then, stepping back to review the GAO's nursing home reports and findings over the prior six years, he described the need for the regulatory system to address the most pressing problems to ensure a minimum quality of care for all residents, rejected a consultative role for surveyors, and called for full implementation of the survey and enforcement processes. Dr. Scanlon rejected criticisms that the survey and enforcement systems were inadequate to ensure quality, saying that implementation of the systems had been "so lacking" that it could not be determined "how effective the process can be."
The same statement is equally valid today. Until the enforcement system enacted in 1987 is actually implemented and facilities are appropriately sanctioned for the poor care they provide, there is no justification for making major changes to the enforcement system. Mandatory public oversight is clearly needed.
For more information, contact attorney Toby Edelman (email@example.com) in the Center for Medicare Advocacy's Washington, DC office at (202) 293-5760.
 42 U.S.C. §§1395i-3(b), (c), (d) (standards), (g) (survey), (h) (enforcement), 1396r(a), (e), (h), Medicare and Medicaid, respectively.
 Federal regulations establish two types of CMPs – per day and per instance. Per day CMPs range from $50-$3000 per day for non-jeopardy deficiencies and $3050-$10,000 per day for jeopardy deficiencies. 42 C.F.R. §§488.430(a), 488.438(a)(1)(i), (ii). Per instance CMPs are $1000-$10,000, without regard to whether the deficiency poses jeopardy to residents. 42 C.F.R. §§488.430(a), 488.438(b).
 42 U.S.C. §1395i-e(h)(2)(B)(i); 42 C.F.R. §488.417.
 By March 2012, §6106 of the Affordable Care Act requires facilities to submit, electronically to the Department of Health and Human Services, direct care staffing information (including agency and contract staff), “based on payroll and other verifiable and auditable data in a uniform format.” CMS has not yet implemented this provision.
 Quality Measures are based on resident assessment information provided by facilities to CMS. They are not audited, but they are “risk-adjusted” to account for differences in facilities’ resident populations.
 CMS, “Special Focus Facility Initiative,” at http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf, describes how the program works. The Center for Medicare Advocacy has written before about Special Focus Facilities. In December 2011, the Center issued a report showing that Special Focus Facilities report high staffing levels and high quality measures. CMA, Nursing Facilities’ Self-Regulation Cannot Replace Independent Surveys: A Study of Special Focus Facilities, Their Health Surveys, and Their Self-Reported Staffing and Quality Measures (Dec. 2011), https://www.medicareadvocacy.org/wp-content/uploads/2011/12/SFFs-12.2011.pdf. See “Nursing Facilities’ Self-Regulation Cannot Replace Independent Surveys,” (Weekly Alert, Dec. 22, 2011), https://www.medicareadvocacy.org/2011/12/22/special-focus-facility-study-nursing-facilities-self-regulation-cannot-replace-independent-surveys/. The Center also reported that Special Focus Facilities participate in the nursing home industry’s voluntary quality campaign, Advancing Excellence, to the same extent as non-SFFs. “Voluntary Nursing Home Improvement Campaign Does Not Work,” (Weekly Alert, Jan. 11, 2012), https://www.medicareadvocacy.org/2012/01/11/voluntary-nursing-home-improvement-campaign-does-not-work/.
 Kaiser State Health Facts.org, http://www.statehealthfacts.org/comparemaptable.jsp?cat=8&ind=411.
 http://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf (site accessed Dec. 19, 2012).
 LeadingAge, 2011 Quality in Nursing Home Care Issue Brief, http://www.leadingage.org/2011_Quality_In_Nursing_Home_Care_Issue_Brief.aspx.
 LeadingAge, Leadership Imperatives; Expanding the World of Possibilities for Aging, a transformational agenda, page 3, http://www.leadingage.org/uploadedFiles/Content/About/About_LeadingAge/leadership_imperatives.pdf.
 AHCA, “Improve Existing Nursing Home Survey System” (Issue Brief) (July 1, 2011), http://www.ahcancal.org/advocacy/issue_briefs/Issue%20Briefs/IBImproveExistingNursingHomeSurveySystem.pdf
 AHCA, 2012 Quality Report, page 4, http://www.ahcancal.org/quality_improvement/Documents/AHCA%20Quality%20Report%20FINAL.pdf.
 The Center has written skeptically about the Advancing Excellence campaign. See “The ‘New’ Nursing Home Quality Campaign: Déjà vu All Over Again” (Weekly Alert, Sep. 21, 2006), https://www.medicareadvocacy.org/InfoByTopic/SkilledNursingFacility/SNF_QualityCampaign.htm; “Voluntary Nursing Home Improvement Campaign Does Not Work,” (Weekly Alert, Jan. 11, 2012), https://www.medicareadvocacy.org/2012/01/11/voluntary-nursing-home-improvement-campaign-does-not-work/.
 “Nursing Home Quality Revisited: The Good, the Bad, and the Ugly,” S. Hrg. 108-325 (Hearing before the Senate Committee on Finance, 108th Cong., First Sess.), page 18 (July 17, 2003), http://www.finance.senate.gov/library/hearings/index.cfm?PageNum_rs=3&c=108&maxrows=15 (click on the report).