{"id":22305,"date":"2023-02-02T15:28:23","date_gmt":"2023-02-02T20:28:23","guid":{"rendered":"https:\/\/medicareadvocacy.org\/?p=22305"},"modified":"2023-02-02T15:28:55","modified_gmt":"2023-02-02T20:28:55","slug":"report-too-much-secrecy-in-the-nursing-home-enforcement-system","status":"publish","type":"post","link":"https:\/\/medicareadvocacy.org\/report-too-much-secrecy-in-the-nursing-home-enforcement-system\/","title":{"rendered":"Report | Too Much Secrecy in The Nursing Home Enforcement System"},"content":{"rendered":"\n

In \u201cHow Nursing Homes\u2019 Worst Offenses Are Hidden From the Public<\/a>,\u201d The New York Times <\/em>reported on December 10, 2021 that the nursing home survey and enforcement systems keep hidden from the public important information about some of the poorest-performing nursing facilities and their failure to provide residents with good care. The Times <\/em>documented how the appeals process, which is one-sided and excludes residents and their families, \u201coperates almost entirely in secret.\u201d<\/p>\n\n\n\n

Secrecy about the quality of care provided by nursing facilities is even more pervasive than The New York Times <\/em>reported. Secrecy begins with state survey agencies\u2019 (SSA) failing to identify many deficiencies at all. It continues with SSAs\u2019 classifying deficiencies they do cite as less serious than they actually are, misleading the public. Multiple systems \u2013 both informal dispute resolution and formal appeals to the Departmental Appeals Board \u2013 give facilities, and only facilities, the opportunity to challenge deficiencies that are cited. Residents and their families and advocates are completely excluded from these appeals processes. The federal public-facing website Care Compare <\/em>provides limited information about penalties. And finally, public reporting that hides ongoing facility appeals for many years means that many of the most serious problems are never publicly reported on Care Compare<\/em>.<\/p>\n\n\n\n

The enforcement system needs to be made far more transparent and effective so that residents and their families can make better choices and hold facilities accountable.<\/p>\n\n\n\n

The Process of Citing Deficiencies<\/strong><\/p>\n\n\n\n

State survey agencies fail to identify deficiencies<\/strong><\/p>\n\n\n\n

Residents\u2019 advocates have said for years that surveyors do not cite deficiencies unless they see the facility\u2019s noncompliance with their own eyes. This concern is legitimate and serious. A survey director told the writer of this Report that families in one facility had been complaining that there was limited or no staff on weekends. When the Clinton Administration added a requirement that surveyors begin a certain percentage of surveys on off hours (nights or weekends), and not begin all surveys at 8:00 a.m. Monday morning, a survey team began its survey in the middle of the night on Sunday. The team confirmed the absence of staff and a staffing deficiency was cited, for the first time, at the facility.<\/p>\n\n\n\n

Repeated anecdotal reports indicate that facilities often know when surveyors are coming for \u201cunannounced\u201d standard (annual) surveys and are able to move staff and supplies into facilities in anticipation. The fact that surveys are so predictable \u2013 most SSAs generally conduct surveys at facilities at about the same time each year, even though the Nursing Home Reform Law gives them authority to conduct surveys on a nine-to-fifteen month basis \u2013 means that there is often little surprise in the timing of standard surveys. Not surprisingly, most of the most serious deficiencies are cited as a result of complaint surveys, which are both unannounced and totally unpredictable.<\/p>\n\n\n\n

A research report in 2007 described observing surveyors<\/a> as they conducted surveys and made decisions about deficiencies. The quality case study analysis found<\/p>\n\n\n\n

At times the surveyors detected deficient facility practices, but these deficient practices did not result in a citation. These omissions occurred either through a deliberate process of decision-making on the part of the surveyors or the identified deficient practices never reached the decision-making stages. Omitted citations were in general not officially registered; hence, they disappeared from the federal enforcement process and escaped enforcement actions and regulatory scrutiny.  (p. 13, section 3.1.2.2)<\/p>\n\n\n\n

In 18 of 24 facilities included in the study, surveyors did not cite deficiencies that the project team believed should have been cited. Missed deficiencies included dehydration, weight loss, inappropriate use of restraints, inadequate supervision, abuse and neglect, inadequate pain management, and pressure ulcers. Some of the omitted citations were missed entirely, reported to the facility without formal citation, or issued as a state deficiency.<\/p>\n\n\n\n

The research report described multiple reasons for surveyors\u2019 failure to identify deficiencies, including insufficient time for survey teams to investigate concerns, hurried review of closed records, and surveyors\u2019 investigative process (surveyor distraction, disorganized or incompetent team leader, and a chaotic process). Surveyors themselves identified \u201ccumbersome paperwork,\u201d a \u201cshortened survey,\u201d and the state\u2019s \u201cmanpower shortage,\u201d caused by a state\u2019s hiring freeze, as reasons for not citing deficiencies.<\/p>\n\n\n\n

State surveyors also told the research team that, at times, the decision not to cite a deficiency was deliberate. Sometimes, surveyors told the facility formally or informally about the non-cited deficiencies, believing the discussion was sufficient to get the facility\u2019s attention and correction of the noncompliance. Some surveyors considered the non-cited deficiencies not significant enough to cite or suggested that there was no resident outcome from the noncompliance or not enough residents were affected to cite a deficiency. Some surveyors cited serious deficiencies under state law, not federal law, describing the state system as both less restrictive than the federal system and more effective. The research team found no basis for these surveyor beliefs.<\/p>\n\n\n\n

Reports by the Government Accountability Office (GAO) similarly document states\u2019 failure to cite deficiencies. In Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weakness<\/em><\/a>, the GAO reported in 2008 that, between 2002 through 2007, 15% of federal surveys cited actual harm and immediate jeopardy deficiencies that SSAs had failed to cite and that \u201cin nine states federal surveyors identified missed serious deficiencies on 25 percent or more of comparative surveys.\u201d Missed deficiencies involved poor quality of care \u2013 nutrition, hydration, and pressure sore issues.<\/p>\n\n\n\n

The GAO again reported the continuing understatement of serious deficiencies in 2009 in Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Commitment<\/em><\/a>. The GAO reported that surveyors and SSA directors, responding to GAO questionnaires, described multiple reasons for the understatement of deficiencies, including<\/p>\n\n\n\n