Nursing Home Oversight: Industry Examples Do Not Demonstrate That Regulatory Actions Were Unreasonable

Published by the Government Accountability Office on 1999-08-13.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

      United States

GAO   General Accounting
                    D.C. 20548

      Health, Education, and
      Human Services Division


      August 13,1999

      The Honorable Charles E. Grassley
      Special Committee on Aging
      United States Senate

      Subject:       Nursing Home Oversight: Industrv Examules Do Not Demonstrate That
                     Reaulatorv Actions Were Unreasonable

      Dear Mr. Chairman:

      At your request, we have in the past year issued several reports about quality of care
      in the nursing home industry.’ Among other findings, we have reported that one in
      four nursing homes nationwide has serious deficiencies involving harm to residents.
      The federal enforcement system does not adequately ensure that homes sustain
      compliance with feder~ quality standards, because 40 percent of the homes with
      serious deficiencies are repeat violators.

      The nursing home industry has contended that the Health Care Financing
      Administration (HCFA) and state surveyors are at times overzealous in their
      regulation of nursing homes and that states cite deficiencies that are trivial or do not
      warrant sanctions. Specifically, in March 1999, the American Health Care Association
      (AHCA) stated publicly that deficiencies cited as causing harm to residents include
      “everything from canceling [a scheduled social] activity such as a painting class to
      giving a patient the wrong medication . . .. [T]he system needs to-and doesn’t-
      distinguish between minor in&actions and major problems.” You subsequently asked
      that AHCA give specific examples that would document instances of these and other
      surveyor actions that AHCA considered inappropriate. In response, AHCA provided
      information on citations for 10 nursing homes that it considers examples of an
      overzealous regulatory process. Seven of these homes received federal and state
      deficiency citations that AHCA believes were more serious than warranted. For the

      ‘See Nursing: Homes: HCFA Initiatives to Imnrove Care Are Under Wav But Will Require Continued
      Commitment (GAOIT-HEHS-99-155, June 30,1999); Nursing Homes: Proposal to Enhance Oversight of
      Poor Performing Homes Has Merit (GAOLHEHS-99-157,June 30,1999); Nursing Homes: Additional
      Stens Needed to Strengthen Enforcement of Federal Quahtv Standards (GAOLIEHS-99-46, Mar. 18,
      1999); Nursing Homes: Complaint Investigation Processes Often Inadequate to Protect Residenti
      (GAO/HEHS99-80, Mar. 22,1999); and Cakifornia Nursiner Homes: Care Problems Persist Des&e
      Federal and State Oversight (GAO/HEHS-98-202, July 27,1998).

                                    GAOLEIEHS-99,154R       Nursing   Home Industry      Examples

remaining three homes, AHCA believes that states inappropriately recommended
them for termination from Medicare and Medicaid. We have included AHCA’s cover
letter explaining these examples in enclosure I.

You asked that we analyze the materials AEICA forwarded to you and determine
whether any cases reflected the actions of an overly aggressive regulatory process
(see enc. II). In response, we analyzed the examples and other materials AHCA
provided to determine whether the state surveyors acted appropriately. In most
cases, we supplemented the materials AHCA provided with information obtained
through specific inquiry to the state agency involved. We collected this information to
evaluate the complete context and ultimate disposition of each case. Any questions
we had about clinical issues were addressed by members of our staff who are
registered nurses.

In summary, in each of the eight cases for which there was sufficient information for
an objective assessment, we believe appropriate regulatory action was taken. In
these cases, either the surveyor’s actions were justified or HCFA or the state
withdrew the initial actions after the nursing homes presented additional information.
In the remaining two cases, we were unable to obtain sufficient information to make a
determination. Specifically, of the seven casesAHCA believes represent
inappropriate citations, we found that in three of these cases a citation was justified.
In another two cases, the states withdrew the citations when the nursing homes
supplied additional information not available to the surveyors, and for the final two,
we were unable to obtain enough information to make a judgment. In all three of the
cases in which the homes were recommended for termination by a state agency, we
believe the states and HCFA ultimately acted correctly in accordance with regulatory
requirements. Furthermore, in only one of these cases did HCFA actually terminate
the home from Medicare and Medicaid. In the remaining two, HCFA rescinded the
termination actions: in one case because deficiencies were corrected and in the other
because of procedural errors by the state.

In our analysis of the cases that AHCA selected as “symptomatic of a regulatory
system run amok,” we did not find evidence of inappropriate regulatory actions.
Furthermore, in a recently released report in which we examined a random sample of
 107 nursing home surveys containing 201 actual harm citations affecting one or a few
residents, we found that 98 percent of the surveys documented that one or more
residents had experienced actual harm.’ Moreover, two-thirds of these 107 nursing
homes also were cited for actual harm or higher-level deficiencies in a prior or
subsequent survey. Most of these repeat violators (56 percent) were cited for the
same deficiency, and an additional 34 percent were cited for closely related
deficiencies. We also found that most of the examples AHCA provided to you had
 deficiencies, in addition to those cited by AHCA, that caused harm to residents.
‘See GAO/HEHS-99-157,June 30,1999.

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HCFA, within the Department of Health and Human Services (HHS), is responsible for
ensuring the quality of nursing homes as part of its oversight of the Medicare and
Medicaid programs. HCFA contracts with state agencies to survey nursing homes to
ensure that they meet Medicare and Medicaid participation requirements. As a part of
this oversight, state agencies are required to record any deficiencies that exist in the
nursing homes they survey. The state surveyor places each deficiency identied
during the survey in one of 12 categories ranging from “A” to “L,” depending on the
extent of resident harm (severity) and the number of residents adversely affected
(scope) (see table 1). The scope and severity of each deficiency are determined by
state surveyors, who receive uniform technical training from HCFA and who are
trained in nursing, social work, and other health-related disciplines Each deficiency
category has associated mandatory or optional sanctions. States refer nursing homes
to HCFA with recommendations for specific sanctions. Only HCFA can impose
sanctions on nursing homes with Medicare certification.3

Table 1: HCFA’s Scone and Severitv Grid for Medicare and Medicaid Compliance

Severity category       Isolated                  Pattern                  Widespread
Actual or potential     J                         K                        L
for death/serious
Other actual harm       G                         H                        I
Potential for more D                              E                        F
than minimal harm

Potential for
minimal harm
                        A                         B

“Also referred to as “immediate jeopardy.”

Available sanctions include requiring a directed plan of correction, fines, and denial
of Medicare and Medicaid payments for both new and current residents. The most

3Statescan impose sanctions on nursing homes with Medicaid, but not Medicare, certification.
However, such homes constitute only about 14 percent of nursing homes nationwide.

3                            GAOiHEHS-99-154R            Nursing    Home Industry        Examples

severe sanction is termination from the Medicare and Medicaid programs, which can
occur under one of two circumstances. First, a nursing home must be terminated if
the surveyor determines that the home has one or more deficiencies that place
residents at risk for serious harm or death4 and this risk is not removed within 23
days. Second, regulations require that a nursing home be terminated ifit has been
continuously noncompliant with HCFA requirements over a 6-month period. A notice
of termination may be withdrawn if the state verifies that the home has returned to
compliance within a set time frame.
Nursing homes that disagree with documented deficiencies have one opportunity to
dispute the citations when they receive the official deficiency report. This informal
dispute resolution (IDR) process between the state agency and the nursing home may
be used to refute the deficiency. Nursing homes may appeal to HHS’ DepartmentsI
Appeals Board any sanctions imposed as a result of deficiencies identified by the
state agency.

AHCA presented seven cases as examples of deficiencies cited by state surveyors that
it believes did not cause actual harm or place residents at risk for serious injury, or
were otherwise of questionable merit. We found that in three of these seven cases,
state surveyors’ citations were fully merited. In another two cases, the state or HCFA
withdrew citations or actions when the nursing home presented additional
information, which also represents an appropriate use of the survey and certification
process. In the two remaining cases, we lacked suflicient documentation to make a
judgment about the appropriateness of state and HCFA actions related to the cases.

In the following three cases, we believe the actions of the state surveyors and
agencies were justified:

1. A California nursing home was given a G-level citation because it failed to provide
   appropriate services to promote healing and prevent infection of a resident’s
   pressure sore. AHCA stated that the pressure sore existed at the time the resident
   was admitted to the nursing home and was healing and decreasing in size.
   Therefore, it believes a citation of actual harm was not appropriate.

     The surveyor’s deficiency report indicated that the resident was admitted to the
     home with a moderate pressure sore on his left heel. Nursing staff stated that the
     resident’s heels were to be protected from pressure to promote healing. Despite

?his represents “immediate jeopardy,” defmed in HCFA regulation as a situation in which the
provider’s noncompliance with one or more requirements of participation has caused, or is likely to
cause, serious injury, harm, impairment, or death.

 4                            GAOLHEHS-99-154R            Nursing    Home Industry        Examples

    this, the surveyor observed on all days of the survey that when this resident was in
    a wheelchair, he was wearing leather shoes, which would place pressure on his
    heels, and when he was in bed, his heels were not elevated to relieve pressure. In
    addition, the surveyor observed that the nurse who changed the resident’s
    pressure sore dressing did not use appropriate techniques to prevent infection.
    The surveyor observed that this pressure sore had worsened.

    We believe that the citation of this deficiency at the level of actual harm was
    justified. An IDR also upheld the actual harm citation. The nursing home did not
    face any sanctions because it corrected the deficiency within a grace period set by
    the state.

2. A Michigan nursing home was cited for immediate jeopardy, assesseda civil
   monetary penalty, and warned that it could be terminated within 23 days for
   having an unsupervised, dangerously hot, coffee urn available to its frail residents.
   The nursing home’s policy was for staff to provide coffee to residents who
   required assistance. The nursing home argued that coffee had been served in this
   manner for many years without serious injuries.

    The surveyor found that residents were allowed unsupervised access to a coffee
    maker with a surface temperature of 160 degrees. The surveyor intervened when
    she observed two residents particularly vulnerable to scalding pulling at the spigot
    of the hot urn in order to obtain coffee. One of the residents had a diagnosis of
    Alzheimer’s disease and the other resident was unsteady and confined to a
    wheelchair. The surveyor issued a widespread immediate jeopardy (L level)
    citation because these residents and others were in imminent danger of burning
    themselves with the hot coffee.

    On the basis of the information in the state surveyor’s report, we believe that the
    surveyor reasonably determined that the two residents were in immediate danger
    of suffering serious burns from the hot coffee. The nursing home removed the
    coffee urn because of the citation. As a result, the immediate jeopardy citation
    was removed, and the state did not refer the home to HCFA for termination.

3. Another Michigan nursing home was cited with an immediate jeopardy (K level)
   violation for failing to remove accident hazards because of the excessive
   temperature of its baseboard heaters in a majority of residents’ rooms. The
   nursing home alleged in an accompanying document that the state surveyor
   recorded only the temperature of the interior of the unit, rather than its surface
   temperature. Consequently, the home argued, the risk of harm to residents was

    A report by an engineer on the state survey team makes it clear that the surface
    temperature of the heaters was recorded. The engineer reported surface
    temperatures high enough to represent a significant burn hazard to residents,
5                         GAOLHEHS-99-154R        Nursing   Home Industry    Examples

     given the location of these units close to ground level in residents’ rooms. The
     engineer found that the surface temperatures of the heaters in several residents’
     rooms ranged from 124 degrees to 197 degrees, with the majority of these heaters
     having surface temperatures above 160 degrees. The engineer’s report indicated
     that baseboard heaters’ surface temperatures in nursing homes should not exceed
     140 degrees because of the enhanced risk of burns to elderly residents.

     We believe that the state reasonably determined that this deficiency warranted an
     immediate jeopardy citation because of the surveyor’s findings that residents were
     at risk of imminent harm.’ Subsequently, a HCFA survey found that the home had
     acted to prevent the immediate risk of burns to residents by frequently monitoring
     the temperature of the heaters and ordering covers for them but that the potential
     for more than minimal harm to residents remained. In response to this home’s
     problem and an instance in which a resident of another home received serious
     burns from baseboard heaters, Michigan issued a written alert requiring nursing
     homes to properly cover their baseboard heaters by September 1,1999.

In the following two cases, once the nursing home provided addidonal information in
the IDR process that was not available at the survey, the state withdrew the citation.
These cases also represent appropriate uses of the survey and certification process:
1. An Iowa nursing home was cited for causing actual harm to a small number of
   residents (a G-level deficiency) by failing to ensure that residents did not receive
   excessive medication.6 One resident was administered a nighttime pain reliever
   for insomnia, even though the patient record did not indicate that this treatment
   was necessary or that other interventions were explored. The medication was
   discontinued at the request of the resident. A second resident was administered
   30 mg. of a hypnotic drug daily, 4 times the normal dosage of this particular drug,
   as ordered by the resident’s physician. The surveyor cited a deficiency because
   the nursing home staff could provide no documentation at the time to explain the
   physician’s basis for ordering this high dosage.

     Following the survey, as part of the IDR process, the home provided a physician’s
     report on the resident who had been administered the hypnotic that justified the

‘According to Michigan offkials, a state appeals court subsequently invalidated this citation, thereby
prohibiting the state agency from sending the survey results to HCFA. The court invalidated the
citation because the state failed to comply with Michigan’s Admiitrative   Procedures Act by
attempting to establish a Medicaid nursing home enforcement procedure through a policy bulletin
rather than through regulation.
‘AHCA’s letter states that this nursing home was cited in this survey for three G-level violations related
to medication errors. However, the portion of the survey report given to us contains only this
deficiency-which reports two instances--and another, lower-level, deficiency-which reports one
instance-related to medication errors.

 6                             GAOiHEHS-99-154R             Nursing     Home Industry        Examples

   higher than normal dosage. The state survey agency told us that it deleted this
   deficiency upon obtaining the physician’s justification.

2. A Wisconsin nursing home was given a D-level citation for failing to give a resident
   access to his desired activity of model shipbuilding. AHCA alleged that the
   resident is blind and voluntarily gave up this activity because of his vision

   The surveyor’s report indicated that the resident was in isolation because of a
   wound infection and complained that he did not have enough to do. The resident
   told the surveyor that he wanted a small table in his room so that he could
   continue with his model shipbuilding. The nursing home staff informed the state
   surveyor that the activity was put on hold for 3 weeks while the resident prepared
   to undergo eye surgery. The surveyor believed that the nursing home should have
   provided some type of activity for the resident during the 3 weeks before his
   surgery. The nursing home maintained in the IDR that it had suggested alternative
   activities and that these were rejected by the resident. On the basis of this
   additional information presented at the IDR, the state deleted this deficiency.

AHCA documentation about the following two cases was insufficient for us to obtain
the additional information we needed to determine whether state and HCFA actions
were appropriate:

1. A Florida nursing home was given a G-level citation for having violated the
   individual dignity of its residents. The home had residents wait in line for a long
   period of time for a bath. A state surveyor observed two residents in wheelchairs
   waiting in line for 30 minutes to an hour. She also interviewed residents and
   found that other residents had similar experiences.

   We asked the Florida state survey agency to provide information about the
   ultimate disposition of this case. However, the provider information supplied by
   AHCA was inadequate to permit the state to find the survey materials in question.
   Because we do not know the disposition of this case, we cannot judge the
   appropriateness of state actions.

2. AHCA described a deficiency cited in an Alabama nursing home regarding a
   kitchen worker who failed to wear a hair net, even though this worker was bald.
   However, AHCA did not identify the specific nursing home involved or the severity
   level of this deficiency, nor did it provide any documentation of this incident, such
   as the surveyor’s deficiency report. Therefore, we could not obtain additional
   information needed to assess the appropriateness of the state and HCFA actions.

                         GAOiHEHS-99-154R        Nursing   Home Industry     Examples


AHCA cited three cases in which nursing homes were terminated from the Medicare
and Medicaid programs or were recommended by the state for termination, although
these homes’ most recent surveys did not identify actual harm or immediate risk of
serious harm to residents (G level or higher). Instead, the most recent surveys
identified a potential-for more than minimal harm to residents (D, E, or F level). In
each case, we found that the home had previously had more serious citations and had
been continuously noncompliant for more than 6 months, a condition for which
termination is authorized. Therefore, the recommendation for termination was
appropriate in each case. In two cases, HCFA rescinded the termination actions: in
one case because deficiencies were corrected and in the other because of procedural
errors by the state.
1. A Maryland nursing home was terminated from the Medicare and Medicaid
   programs in September 1998with no deficiencies at a higher level than the
   potential for more than minimal harm at the time of this action. The nursing home
   claims that a standard of immediate risk to residents is necessary to warrant
   termination, and that this standard was not reached. However, HCFA regulations
   require that a facility be terminated from Medicare and Medicaid when it has been
   continuously noncompliant for 6 months.

     In a survey of this nursing home completed on January 26,1998, several instances
     of actual harm to residents were identified. One resident was inappropriately
     given a diuretic medication, which resulted in severe dehydration. She eventually
     was sent to a hospital, where she died. Another resident was administered an
     excessive dose of a medication, which increased her risk of significant internal
     bleeding. For a third resident, the nursing home failed to communicate effectively
     with the physician, and as a result, the resident did not receive needed medication.
     All subsequent inspections during the next 6 months, including a joint survey by
     HCFA and Maryland surveyors, found the home to be continuously out of
     compliance.7 On the basis of the information AHCA provided, we believe that
     HCFA’s termination action was appropriate.

2. The California state survey agency informed a nursing home that it was
   recommending to HCFA that the home be terminated following the state’s third
   revisit that found deficiencies at the scope and severity level of potential for more

‘MICA-and the nursing home, in a lawsuit against HCFA-also argue that the home had accepted a
temporary manager sought by the U.S. Attorney at the time of termination, and that the home should
not have been terminated until the temporary manager had a chance to improve the situation.
However, the temporary manager was not appointed until September 15,4 days after HCFA had
notified the home that it would be terminated on September 26.

 8                           GAOIHEHS-99-154R            Nursing    Home Industry       Examples

    than minima3 harm to one or a small number of residents (D level). AHCA asserts
    that this sanction is too harsh because no deficiencies constituting actual harm to
    residents were detected in the third revisit survey.’

    However, this nursing home had been continuously noncompliant for more than 6
    months. An initial survey of the home had identified six separate citations for
    actual harm. The violations included failure to prevent abuse of residents,
    inadequate clinical assessment of residents, poor quality of care, and insufficient
    nursing services. Four citations of actual harm were given on the first revisit, and
    the nursing home was determined to still present the potential for harm to its
    residents on the second and third revisits.

    We believe that the findings support the state’s recommendation to HCFA that this
    home be terminated because the state found that this nursing home had been
    noncompliant for more than 6 months. However, the decision to terminate this
    nursing home was rescinded when the state changed the scope and severity of the
    deficiency from a D to a B and, accordingly, determined that the home was in
    substantial compliance. The home remains in the Medicare and Medicaid

3. Florida recommended that a nursing home be terminated because it had been
    continuously out of compliance for more than 6 months. AHCA argued that the
    nursing home should not be terminated because the nursing home had received its
    deficiency report 150 days after the conclusion of the initial survey, not within the
    lo-day maximum required by HCFA. Because of this late notification of findings,
    the home alleged that it lacked the information necessary to correct its
    deficiencies in time for subsequent inspections.

    We obtained additional information from the state confirming the nursing home’s
    allegation that it did not receive timely notice of its deficiencies. Because of
    procedural problems, the state did not send the survey report to the nursing home
    until 5 months after the initial survey and only 6 days before the first revisit
    intended to determine whether the home had corrected the deficiencies identified
    in the initial survey report. Although this home remained noncompliant for more
    than 6 months, HCFA ultimately decided not to terminate it because of the state’s
    procedural lapse in the case. Thus, this home remains in the Medicare and
    Medicaid programs. HCFA and the state agency have taken action to ensure that
    nursing homes are given timely notification of deficiencies.

‘AHCA also complained that the state surveyor had referred the mu-sing home for termination because
the surveyor had observed an aide eating cake in the kitchen. However, this deficiency, which was
also based on the observation of another dietary aide violating sanitary protocols, was classified at the
B level as a violation of serving food under sanitary conditions. Such low-level deficiencies are
considered substantial compliance and may not be used to justify a termination action.

9                              GAO/HEHS-99-154R            Nursing     Home Industry        Examples


We obtained comments from MICA on a draft of this correspondence, raising several
specific points (see enc. RI). F’irst, AHCA commented that the draft title did not
accurately reflect the data contained in the correspondence. AHCA maintained that
our data indicate that only three citations were justiEed.and suggested that we modify
our title to indicate this. Second, AHCA disagreed that removal of a citation after an
appeal is a good outcome, pointing out that appeals take tremendous resources to
prepare and cause disruptions in services. F’inally, AHCA challenged our
methodology, noting that we limited our verification of its examples to reading the
citations and speaking with those who issued them, rather than augmenting them
with clinical records and the medical opinion of professional caregivers in the nursing
With regard to AHCA’s first point, we revised the title to reinforce that, overall, the
regulatory process was not unreasonable for these examples. The focus of our prior
nursing home work was the prevalence of documented problems and the absence of
enforcement action. In all of our work, including this correspondence, we have used
as the basis for our analysis not the initial citation but the ultimate outcome of the
regulatory process. We found that the AHCA cases do not provide evidence that
trivial cases survive the regulatory safeguards, such as the IDR process, intended to
protect homes from inappropriate deficiency citations and sanctions. This tiding is
reinforced by our review of a random sample of more than 200 level G deficiencies
pertaining to documented actual harm to one or more residents-the threshold we
used to define quality problems9

With regard to AHCA’s objections to the IDR process, this process was created to
provide an informal way for a nursing home to dispute deficiency citations and avoid
the costly and elaborate administrative appeals process. In three of the cases we
examined, this process resulted in changes to the survey findings favorable to the
nursing home. We consider this to be a good outcome. Finally, in analyzing these
cases, we used the official documentation, either supplied by AHCA or obtained from
the state agency, and information obtained from state agency officials relating to the
cases’ outcomes. Because all regulatory decisions relating to these cases were made
on the basis of the case record, which included the nursing homes’ positions, we do
not believe that contacting the facilities would have materially enhanced our analysis.

‘GAO/HEHS-99-157,June 30,1999.

 10                       GAOLHEHS-99-154X        Nursing   Home Industry    Examples

As agreed with your office, we will make no further distribution of this
correspondence until 30 days after its issue date. At that time, we will make copies
available to other interested parties on request.

If you or your staff have any questions about the results of this analysis, please call
me on (202) 512-7118. Christopher Kelly, Mary Ann Curran, and Peter Schmidt
prepared this correspondence under the direction of John Dicken.

Sincerely yours,

Kathryn G. Allen
Associate Director, Health Financing
 and Public Health Issues

Enclosures - 3

11                        GAOLHEHS-99-154R         Nursing   Home Industry     Examples
ENCLOSURE I                                                                                      ENCLOSURE I

                                     AHCA’S LETTER DATED MAY 6! 1999

        1201 L streat. NW
  Washington,  DC 20005-4014
          202 842-4444
       FAX: 202 842-3860

                                                                         Writer%    Telephone:    202-8g8-2858

                                                                         Writer’s   E-mail:       byarwood@bca.org
                               ay 6,1999

                          he Honorable Charles Grassley
                          enate Special Committee on Aging
                          DG-3 1
                            ashington, D.C. 205 10

                                  your request for further information regarding the ongoing problems with
                        nursing home survey, certification, and enforcement system. On behalf of the 11,000
                   ong term care providers we represent,I want to reiterate how deeply we appreciate your
                    iligent work to create a fair systemthat best servesthe complex needs of the elderly
             Massey opulation for which we care.
       REGICUUna- OF
        snei1yPetersonQ our request for information referenced a citation for canceling a painting class, which
        Oavld Se&man
                      ye used in our testimony as an example of a G violation which could be cited that caused
                  no actual harm. There are many other examplesof such citations. I am including
                  examples of G-level citations for violations that did not causeactual harm and were of
                  questionable merit. I am also describing and enclosing documentation on caseswhere
                   acilities have been closed and have received official notices of termination for violations
                     hich caused no actual harm to residents.
                       ith regard to the former, we have collected 25672. (Statementof Deficiency) forms for

                    arious perceived violations that were cited, along with supporting documentation. The
                    xamples of citations that I am summarizing and enclosing are clearly symptomatic of a
                    egulatory system run amok. For example, in Alabama, a deficiency was cited because a
                     itchen worker failed to wear a hair net. This male employee was completely bald. A
                       ichigan caregiver was fined $4,000 and given a notice of termination for allowing
                   Pccessto complimentary coffee that had beenmade available to family members, staff,
                        d residents for 30 years in five homes without incident. The surveyor felt they caused
                     immediate jeopardy”. The facility removed the coffee urns, and the result was that
                   ” esidents and staff no longer have coffee available to them. This is an example of
                                 zeal that takes away the freedoms and conveniencesthat make our facilities

 12                                    GAO/HEHS-99-154R      Nursing   Home Industry                      Examples
ENCLOSURE I                                                                         ENCLOSURE I

       The Honorable Charles Grassley
       May 6,1999
       Page - 2

       l       Also enclosed are the 2567s from another Michigan facility that was cited with a K-
               level violation for the baseboardheaterswhich had been in operation for 22 years and
               from which no resident was ever harmed (Appendix B)
       l       In your own state of Iowa, in the town of;           , this facility’s l/8/99 survey
               revealed 3 G-level violations from the surveyor questioning resident’s physician
               ordered medication (either dosageor appropriateness). In each of three casesthe
               physician wrote a letter to explain the appropriateness of their order citing medical
               journals and years of experience with the resident, and to express indignation for
                having to justify their expertise to surveyors. This is an example of less-qualified
                surveyors citing facilities for following orders from medical doctors, and is extremely
                common. Again, no harm was caused.(Appendix C)

           Other examples include:

           l    A G violation was cited in Florida becausea resident voluntarily waited in line for
                the whirlpool bath, supposedly a violation of her “dignity” (Appendix Dj,
           l    In another home, a blind resident was not supplied with model shipbuilding materials
                (Appendix E) and was cited with a deficiency (despite the fact that the resident said
                he could not build models due to his vision problems).
           l    Many facilities are cited for having pressureulcers that were documented to have
                existed on admission (which were healing and shrinking) (Appendix F).

           The bottom line is that this is an adversarial system that cites minor imperfections,
           encouragesdistrust on the part of regulators, and serves to demoralize residents and staff.

           With regard to examples of facilities that were closed without immediate harm or
           jeopardy to the residents, one of the best examples can be found in the recent closure of
           the                                             : in Maryland. This was a facility that
            endured six surveys (state, federal HCFA, and Department of Justice [DoJ]) in eight
            months, none of which found immediate harm or jeopardy for the residents. Yet
                       was closed by HCFA -just as the DoJ was implementing a plan of correction
            utilizing a temporary manager whom it had appointed.

13                     GAO/HEHS-99-154R              Nursing     Home Industry         Examples
ENCLOSURE I                                                                     ENCLOSURE I

        The Honorable Charles Grassley
        May 6,1999
        Page - 3

        This facility was closed by HCFA despite the pleas of residents, families, the temporary
        manager, and a federal court judge. The 83 residents of              and their families were
        never consulted in the process:             began evacuating its residents on January 41h,
        and was able to place those for whom it used to care at the rate of about 20 per week.
        The families have expressedconcern about transfer trauma. These families also reported
        to regulators and the court that conditions had continued to improve as the temporary
        manager was put into action. The residents and families are confused about why the
        facility was shut down just 8 weeks after the Do3 appointed a temporary manager.

        The            caseshows that overlapping governmental regulators often work at cross-
        purposes and do not often take into account the needs and desires of the residents they
        purport to protect.

         Maryland’s U.S. Attorney, Lynne Battaglia, noted that closure of a facility is the last
         resort, and should only be used when all other efforts have failed. This was not the case
         in           .. I am enclosing the 2567 forms from this facility, the opinion of the Federal
         Judge, and an article on the closure that appeared in the Wall Street Journal Jan. 4”‘, 1999
         (Appendix    G).

         Closure of facilities where there is no actual harm is serious inasmuch as it threatens
         resident well being, causesgreat hardship with spouses, family, and other visitors, and
         displaces the elderly from “their homes”. However, it is not a common problem. More
         often, termination is usedby regulators as a club to threaten facilities into compliance.
         The following caseexamplesare further evidence that regulators are issuing official
         notices of termination for violations where no one is actually harmed.

          1.                           ,.Dade Co., FL - This is a facility which had a record of
               compliance problems under the previous owner, but was acquired by Integrated
               Health Services (HIS) on July 7, 1998. This facility endured eight surveys between
               April 9,1998 and February 1,1999. In each of these instances, the Survey Agency
               failed to furnish the facility the Statement of Deficiencies (Form 2567L). In one case,
               150 days lapsed betweenthe annual survey and when the Agency notified the facility
               of their findings (StateOperations Manual, Appendix P requires that it be furnished
               within 10 days). If the survey had found any serious problems, they would not be
               corrected during the five months that the agency failed to notify the caregivers of
               those problems. Nevertheless,after final revisit, the survey team left one tag at level
                D, and the facility was terminated from the Medicare and Medicaid programs on
                February 7,1999. (Case history attached as Appendix H).

 14                   GAOLHEHS-99-154R              Nursing     Home Industry         Examples
ENCLOSURE I                                                                        ENCLOSURE I

     The Honorable Charles Grassley
     May 6,1999
     Page- 4

     2.                            :, CA - An April 30, 1999 revisit survey revealed “Isolated
          deficiencies that constitute no actual harm.. .” The most serious violation was one
          resident’s attending physician discussed her need to lose weight in front of the nurse
          and with one resident within earshot. Additionally, an employee was seeneating cake
          in the kitchen! The state has recommended closure of this facility for these
          violations. (Appendix I)

     As you can see,this is clearly not a system which focuses on correcting problems, but
     rather focuseson punishment at the expense of improvement. Caregivers are forced to
     spendprecious time and resources on compliance that should be spent on patient care.

     I hope the forgoing examples and attached documentation are helpful in painting a better
     picture of the complex and subjective system under which our providers struggle to care
     for our elderly. For the most part, these are not isolated occurrences, but are indicative of
     the types of citations that occur in facilities at every inspection.

     I sincerely hope we can take concrete steps this session of Congressto reform this
     system,and move forward to one that does indeed measurequality of care and quality of
     life. The American Health Care Association has created a package of improvements that
     we plan to discuss with you soon. I look forward to working with you in these endeavors.

      Legislative Counsel
      H:\mh\grasslcy 4-15

15                          GAOLHEHS-99-154R        Nursing     Home Industry          Examples
ENCLOSURE II                                                                    ENCLOSURE II

                        GRASSLEY. SENATE SPECIAL
                          COMMITTEE ON AGING

                                            May 27,1999

        William Scanlon, Ph.D.
        Health Finaucing and SystemsIssues
        US. General Accounting Office
        441 G Street, N.W.
        Washington, DC 20548

        Dear Dr. Scanlon:

                As you may remember,the American Health Care Association (AHCA) issueda newsrelease
        on March 17, 1999, that was distributed at the news conference I held with other members of
        Congressto release the General Accounting Office’s (GAO) report on the enforcementof federal
        quality standardsin nursing homes.

               The AHCA’s news release critiques the GAO report and states, in pertinent part:

               “Perhapsthe biggestfailure of the [GAG] report is the creation of a catch-all category
               of deficiencies, what the GAO calls ‘severe deficiencies,’ that includes everything
               from canceling [a scheduled social] activity such as a painting class to giving a
               patient the wrong medication. ... [Tl he systemneedsto -- and doesn’t - distinguish
               between minor infractions and major problems.”

                In response,I wrote a letter to Bruce Yrwood, legislative counsel for the AHCA, asking for
         documentation for the facility or facilities alluded to that had received a G-level citation for
         canceling a painting class or other social activity.

                I also askedMr. Yarwood to provide documentation of a second statementfrom the release:

                “‘Furthermore, inspectors have closed down facilities, without consulting residents
                and their families, for technical violations posing no jeopardy to residents.”

                 lklosed is the response I received from Mr. Yarwood and the attendant attachments. 1
          would like to receive your analysis of thesematerials. Do you agree that any of the citt%ionshe
          presentsreflect the actionsOf overly aggressivesurveyors.7 Is me documentationprovrdedsficient
          to evaluate the merits of the citations? Pleasefeel free to comment on any other aspectsOf these

 16                   GAO/HEHS-99-154R              Nursing      Home Industry          Examples
 ENCLOSURE II                                                                    ENCLOSURE II

       materials as you seefit. I would appreciatereceiving your responsein writing if possible.

              Thank you for your attention to this matter.



17                    GAO/HEHS-99-154R              Nursing    Home Industry         Examples
 ENCLOSURE III                                                                                            ENCLOSURE III

                                               COMMENTS FROM AHCA

      1201 L street. NW
wsnmgton.    DC 200054~A
        202 842-4444
     -G-w 20% 8Ԧ-2-2.853

 VPNW.AHCA.ORG                                                                     wtiteh    Telephone:    202-898-285’
                                                                                   Wrltefs   Emal:         byanvood@ahca.org

         D=-“0~          August 5,1999
                            Ms. Kathryn G. Allen
                            Associate Director, Health Financing
                             and Public Health Issues, HEHS
                            U.S. General Accounting Office
                            Washington, D.C. 20548

                            Dear Ms. Allen:

                            Thank you for providing my office with a copy of your draft report ta the Senate Special
                            Committee on Aging. Our response to Senator Grassley was intended to satisfy his
                            request for examples, while illustrating specific problems with the survey system which
                               evadethe caregiving environment. I had hoped that these examples would show
                            PO Licymakers some of the flaws with the current system, and that this would lead to a
                            dirrlogue about solutions.

                            ITc1that end, I would like to raise several issues with regard to your draft report:

                                There is a disparity between the title of your report and the actual data. While your
                                title implies that all surveyor citations were appropriate, the facts support that in only
                                three caseswas a citation justified. I would suggest an alternative title such as: ‘Yn
                                fewer than l/3 of caseswere citations determined to have merit.”

                             2. Your report createsthe impression that even if the citation was not justified, the
                                removal or deletion of the citation upon appeal is a good outcome. Quite to the
                                contrary, these appeals take tremendous resources,cause disruption in services, and
                                take caregivers away from caregiving to researchpaperwork. The IDR process is one
                                areathat begs for reform- Often those hearing and deciding upon the appeal are the
                                sameindividuals who issued the citations.

                               . It appearsyour verification of our examples was limited to re-reading the citations
                                 and speaking with those who issued them. You would have been well served to seek
                                 the clinical record and medical opinion of the trained, professional caregivers in these

     18                                 GAOIHEHS-99-154R               Nursing     Home Industry                     Examples
ENCLOSURE III                                                                 ENCLOSURE III

       4. There were two caseswhere AHCA provided insufficient information on citations for
          HCFA to identify the facilities involved. In one case we redacted facility identifying
          numbers, and in rhe other we were asked not to disclose the 2567. In both of these
          casesinformation was provided to AHCA only upon condition of anonymity due to
          the very real and pervasive fear of surveyor retribution.

       I want to take a moment to react specifically to one example we presented rather than
       debate the merits of each. In the Wisconsin casewhere providers were cited for not
       providing a table to a blind man for model shipbuilding here are some other factors that
       were significant but not reported:
        l   Resident was NOT in isolation (contrary to the surveyor’s report).
        l   Resident was admitted 5 days prior to surv.ey (care plan on non-nursing care not
            required for 7 days).
       ‘0 Resident had met with activity director and already attended several activities.
         l  Resident was scheduled {at the time of the survey) to give a presentation to the other
            residents on sailing. (not in surveyor’s report)
          l Resident stated to activities director “Maybe after my surgery, I can get a table to
            build model ships”, and was told that would be fine. (contrary to surveyor’s report)
          l All of this information was available to the surveyor at the time of the survey.

        It is worth noting that the facility in question spent over 200 hours preparing, researching,
        writing and presenting the Informal Dispute Resolution (IDR) for this survey.’ This
        supports my contention that erroneous citations are not without costs to caregiving.

        One other reaction; in the California facility used in your pressure ulcer example the
        pressure ulcer was present upon admission, this was documented and made available to
        the surveyor, and the pressure ulcer was healed by the caregivers. There was no harm;
        but improvement, yet the facility was cited, their nurse aide training program shut down,
        and the appeal on IDR was upheld by the same surveyor who issued the citation.

        Again, I want to stress that these examples are intended to highlight areas where reform is
        needed. We do not intend to cast aspersions or assign blame.

19                    GAOMUEHS-99-154R             Nursing     Home Industry         Examples
ENCLOSURE III                                                                          ENCLOSURE III

      We are anxious to move forward from the current practice in which we debate specific
      anecdotes, and toward more active collaboration to improve quality of care. The
      American Health Care Association has developed specific solutions to the survey process
      that we will advance through the policymaking process. They focus on the following

      l             The survey system should be one in which regulators, consumers, tid providers work
                    together to develop solutions and improve care within the facility.
      l             Monies collected through fines should be used to fix the problems and improve
                    quality in those homes.
          l         A new, more objective system based upon clinical data and other objective measures
                     must be instituted.
          l          There must be more communication between surveyors and caregivers, not less.
              l      Residents and their families should be included in the quality assessmentprocess.

              We welcome a new era where dialogue will triumph over accusation, and in which we
              can foster a new collaborative approach that focuses upon improved patient care rather
              than punishment and citation.

                  I look forward to
                  Committee as we
                  quality long term care.


 20                                  GAO/HEHS-99-154R          Nursing    Home Industry        Examples
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