In May 1986, the Senate Special Committee on Aging held a hearing titled “Nursing Home Care: The Unfinished Agenda” and released a report finding “disturbing shortfalls in nursing home oversight” that place residents at risk. The average surveyor vacancy rate in 2003 was 11%. Thirty-seven years later, the Senate Special Committee on Aging again turned its attention to underfunding of state survey agencies, finding that the surveyor vacancy rate is now far worse, 29%.
At a May 18, 2023 hearing, “Residents at Risk: The Strained Nursing Home Inspection System and the Need to Improve Oversight, Transparency, and Accountability,” the Committee released the results of the Majority Staff’s year-long investigation into understaffing, titled “Uninspected and Neglected: Nursing Home Inspection Agencies are Severely Understaffed, Putting Residents at Risk.” Funding for state survey agencies has remained stagnant for a decade (with the exception of a temporary increase during the public health emergency), despite budget proposals by President Biden and his two predecessors for an increase.
The Democrats’ three witnesses – Erin Bliss, Assistant Inspector General for Evaluation and Inspections, HHS Office of Inspector General; Shelly Williamson, President of the Board of Directors for the Association of Health Facility Survey Agencies, and Administrator for the Section for Long Term Care Regulations, Missouri Department of Health and Senior Services; and Leah McMahon, Colorado State Long-Term Care Ombudsman – testified about shortages of surveyors in state survey agencies and the increased risk for residents’ health and safety that results. Bliss testified that improving nursing home quality is the Inspector General’s number one priority. She said that the country spends two cents in oversight for every $100 spent on resident care.
The Republicans’ witness – Susan Feng Lu, Gerald Lyles Rising Star Professor of Management, Mitchell E. Daniels, Jr. School of Business, Purdue University – testified about the importance of disclosure of information about quality; the impact of staffing shortages on quality; and ownership, particularly private equity’s acquiring nursing homes and disclosure of ownership information.
Questions by Democrats focused on underfunding of state survey agencies (Casey, PA); the greed of corporate owners, including private equity and real estate investment trusts (Warren, MA); contractors performing survey agency functions (Blumenthal, CT); and how many facilities a Medical Director can oversee; lower nurse staffing levels correlated with higher rates of resident deaths, and lack of compliance with infection control requirements (Gillibrand, NY).
Questions by Republicans focused on the federal overtime rule (Braun, IN); information about surveyor qualifications and survey teams (Vance, OH); and nurse staffing shortages, particularly in rural facilities, and resident loneliness during pandemic (Ricketts, NE).
“Uninspected and Neglected”
The Majority staff report begins by citing the May 1986 hearing and documents, again, “serious questions about the adequacy of the Nation’s nursing home oversight, and the safety of 1.1 million nursing home residents.” Report 1.
Federal data show that, as of early May 2023, 28 percent of the Nation’s 15,000 nursing homes have not received a comprehensive annual inspection for 16 months or more, placing them behind on statutorily mandated annual inspection schedules. One in nine nursing homes across the Nation have not received an annual inspection in two years.
Id. Thirty-one state survey agencies report vacancy rates of 20% or more among surveyors and nine states’ vacancy rates for surveyors are 50% or higher. Id. “Moreover, a large proportion of the inspection staff on payroll are inexperienced, reducing their effectiveness.” Id.
As a result of the staffing shortages, state survey agencies are unable to complete standard or complaint surveys. “A growing number of States have turned to inspectors employed by private companies to bridge gaps – costly contractual arrangements worth millions of dollars that should be subject to additional scrutiny from Federal regulators, watchdogs, and the press.” Id. 1-2. As documented by ombudsmen, staffing shortages endanger residents. Id. 2.
Federal funding for state survey agencies has not been increased in a decade (with the exception of a temporary increase during the pandemic), despite budget requests from President Biden, President Trump, and President Obama. Id. 2-3.
The report is based on a year-long investigation, meeting with and reviewing reports of the HHS Office of Inspector General (OIG), the Government Accountability Office (GAO), and the 2022 report of the National Academies of Sciences, Engineering and Medicine, and a survey of all 50 states. Id. 4-5.
The report has seven sections.
Section I: Introduction. Id. 1-6.
Section II: “The Role of State Survey Agencies.” Id. 7-15.
Nursing home surveys are 81% of the 128,000 surveys conducted in Fiscal Year 2021. Id. 15.
Section III: “Survey Agencies Stretched to the Brink.” Id. 16, see also 16-32.
The GAO reported shortages in surveyors in 2003 (GAO, Nursing Home Quality: Prevalence of Serious Problems, While Declining, Reinforces Importance of Enhanced Oversight, GAO-03-561 (Jul. 2003), https://www.gao.gov/assets/gao-03-561.pdf) and OIG, in 2022 (CMS Should Take Further Action to Address States with Poor Performance in Conducting Nursing Home Surveys, OEI-06-19-00460 (Jan. 2022), https://oig.hhs.gov/oei/reports/OEI-06-19-00460.pdf). Id. 16.
The average surveyor vacancy rate in 2003 was 11%; it is now 29%. Id. 18. The report quotes states’ descriptions of crisis-level staffing shortages. Id. “High turnover rates contribute to an inexperienced surveyor workforce.” Id. 19, see also 19-21. Surveyors leave their positions because of low salaries, retirements, and burnout. Id. 21, see also 21-24. These factors make recruitment of new surveyors difficult as well. Id. 24-25.
The staffing shortages lead to delays in standard and complaint surveys, id. 25-27, as well as “missed deficiencies” and “ultimately diminished capacity to assure quality of care,” id. 27, as reported by state survey agencies and ombuds programs alike, id. 27-29. Data reported on the Care Compare website are untimely and inaccurate. Id. 29-31.
The report describes multiple state strategies to address vacancy and turnover issues. Id. 32.
Section IV: “Growth of Contractors Conducting Nursing Home Oversight,” particularly during the pandemic. Id. 33, see also 33-47.
Thirty-three states use contracting services, including 26 states using contractors for recertification surveys. Id. 33-34. Some states allow contractors to complete surveys independently, while other states have a state employee serve as team leader on teams that include contractors. Id. 35. Some states send contract surveyors to facilities with few complaints while other states do the reverse and send contract surveyors to facilities with high numbers of complaints; still other states send contractors to the next facility according to survey deadlines. Id. 36.
Three companies – Ascellon, CertiSurv, and HMS – account for most of the contract survey work, conducting 628 recertification surveys (6.6% of the recertification surveys) since 2022. Id. 36-37. They conducted 1,300 focused infection control surveys from 2020 to 2022, each costing $5,000 to $7,100 and likely totaling more than $10 million. Id. 40. States are spending “a significant percentage of their annual budgets” on contract surveyors, multiple times what a state agency survey would cost. Id. 37, see also 37-38.
Contract companies have difficulty keeping up with the workload and often have open-ended contracts with states that do not specify how many surveys they will complete. Id. 39-40. Some states express concerns with the quality of work performed by contract companies. Id. 41-42.
Contract companies may have conflicts of interest when they consult with providers that they could later survey. Id. 42-44. Two of the major contractors, HMS and Ascellon, have also worked as a contractor to CMS. Id. 44-47. On behalf of CMS, HMS has conducted oversight of state agency performance and assisted federal CMS surveyors in completing comparative surveys. Id. 45. These activities raise potential conflicts of interest, as, for example, when the contractor both completes a state recertification survey and conducts a federal comparative survey at the same facility. Id.
Section V: “Surveyor Staffing Warnings Date to Early 2000s.” Id. 48, see also 48-60.
Although states, since at least 2017, have communicated with CMS about the impact of staffing shortages on their work, CMS has not routinely collected or used the information. Id. 48-50.
States that fail to meet CMS’s survey performance standards sign “‘corrective action plans’” with CMS, but the plans in Kansas, Hawaii, and Georgia that predated the coronavirus pandemic show only that staffing and survey performance have been issues for a long time and that corrective action plans, one of the limited enforcement actions available to CMS, do not result in correction of the problems. Id. 50-54.
Multiple reports have identified the staffing shortages and their consequences since at least 2003:
- 2003: GAO, Nursing Home Quality: Prevalence of Serious Problems, While Declining, Reinforces Importance of Enhanced Oversight, GAO-03-561 (Jul. 2003), https://www.gao.gov/assets/gao-03-561.pdf)
- 2009: GAO, Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Commitment, GAO-10-70 (Nov. 2009), https://www.gao.gov/products/gao-10-70)
- 2020: OIG, States Continued to Fall Short in Meeting Required Timeframes for Investigating Nursing Home Complaints: 2016-2018, OEI-01-19-00421 (Sep.2020), https://oig.hhs.gov/oei/reports/OEI-01-19-00421.pdf)
- 2022: National Academies of Sciences, Engineering, and Medicine, The National Imperative to Improve Nursing Home Quality: Honoring Our Commitment to Residents, Families, and Staff, https://www.nationalacademies.org/our-work/the-quality-of-care-in-nursing-homes
Id. 54-56. Although the Trump and Biden Administrations and CMS regional offices have repeatedly raised concerned about state survey agency budgets and both Administrations supported higher funding in their budgets, Congress has kept the survey budget steady at $397 million from FY 2015 until FY 2022. Id. 57-60.
Section VI: “States Used CARES Act Funds to Address COVID-19.” Id. 61, see also 61-68.
This section reviews the impact of COVID-19 on nursing home residents and changing federal policy and guidance. Forty-one states used $100 million in CARES Act funding for survey and certification activities, id. 63-65, which assisted states, id. 65-66. States express widespread concern about the sunsetting of CARES Act funding. Id. 66-68.
Section VII: Recommendations. Id. 69-71.
The report ends with 10 recommendations:
- “Congress and States should invest in robust nursing home oversight.” Id. 70.
- “CMS should regularly collect and report staffing information from State survey agencies.” Id. “Data collection should include, but not be limited to, budgeted surveyor positions, surveyor vacancies, turnover rates, surveyors currently in training, salary ranges and salary competitiveness, and the volume of survey work conducted by contract surveyors.” Id.
- “CMS, HHS OIG, and States should increase oversight of contract surveyors,” collecting data, considering “additional oversight of contract surveys to ensure quality,” and providing “additional guidance and technical assistance” to states. Id.
- “States should consider more flexible hiring requirements for surveyors,” and consider allied health professionals in addition to registered nurses. Id.
Note: The federal district court for the Southern District of New York upheld a final rule permitting nursing home complaint surveys to be conducted without a registered nurse on the survey team. Avon Nursing and Rehabilitation v. Becerra, No. 18-CV-2390-LTS-SDA (S.D.N.Y. Mar. 31, 2023), 2023 West Law 2751799.
- “CMS should consider strategies to reduce burden on States for non-survey tasks.” Id. 70.
- “Congress, States, and institutions of higher education should collaborate to expand opportunities to enter into and remain in the health care workforce.” Id.
- “Congress, States, and health care facilities should improve mental health resources for the health care workforce” to address surveyor stress. Id.
- “Congress should increase funding for the State long-term care ombudsman program.” Id.
- “CMS should strengthen the accuracy of Care Compare,” citing OIG’s April 2023 report about inaccuracies in information posted on Care Compare for two-thirds of nursing facilities (OIG, CMS Did Not Accurately Report on Care Compare One or More Deficiencies Related to Health, Fire Safety, and Emergency Preparedness for an Estimated Two-Thirds of Nursing Homes, A-09-20-02007 (Apr. 2023), https://oig.hhs.gov/oas/reports/region9/92002007.pdf.
- “Congress should increase funding to the Office of Inspector General for the Department of Health and Human Services.” Id. 71.
June 22, 2023 – T. Edelman