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Volume 12 Number 79 News: Nursing Homes The Centers for Medicare & Medicaid Services is not effectively carrying out "immediate sanction" enforcement mechanisms against nursing homes with a history of harming residents, according to a report by the Government Accountability Office issued in March but released April 23. "CMS's immediate sanctions policy fails to hold homes with a long history of harming residents accountable for the poor care provided," according to the report, Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents (GAO-07-241). The number of sanctions and serious deficiencies cited against nursing homes declined during the five years studied, reflecting a nationwide trend, GAO reported. The report was prepared at the request of Senate Finance Committee ranking member Charles E. Grassley (R-Iowa). Yet almost half of the 63 homes reviewed "continued to cycle in and out of compliance," causing harm to residents, GAO found. The homes reviewed, all of which had a history of harming residents, corrected deficiencies only temporarily, the report found. In fact, eight of the homes cycled in and out of compliance seven or more times. GAO also said the deterrent effect of civil monetary penalties was "diluted" because CMS imposed the penalties at the lower end of the allowable range for all of the homes reviewed. Also, the median per day penalty imposed ranged from $350 to $500 for the homes studied, far below the maximum allowable fine of $3,000 per day. The homes do not have to pay a federally imposed monetary penalty while they are appealing their deficiencies, a process that can take years, GAO wrote. CMS Generally Concurred CMS generally concurred with GAO's recommendations but did not always specify how it would implement the recommendations, according to GAO. CMS also said three of the recommendations raise resource issues while others would require additional research. CMS is creating a system to help guide states and regional offices in determining appropriate civil monetary penalty amounts. However, it is expected to be optional for states, contributing to interstate variation, GAO wrote. The system was tested in a 2006 pilot program. The "'immediate sanctions' label is misleading because CMS's policy requires only that homes be notified immediately of CMS's intent to implement sanctions, not that sanctions be implemented immediately," the report said. Homes that are able to correct deficiencies during the grace period can escape certain sanctions, it wrote. In fact, CMS favored the use of sanctions that give homes more time to correct deficiencies, so that in many cases, sanctions were not implemented, GAO said. In general, CMS did not exercise its discretionary authority to impose "denial of payment for new admissions" (DPNAs) or terminations for the homes, the report said. "Rather, it waited until these sanctions could be imposed on a mandatory basis, allowing the homes more opportunities to escape sanctions prior to implementation," the report said. Enforcement Tools Lacking The most powerful enforcement tool, termination of the nursing home from federal health care programs, occurs very rarely. Only two homes were terminated involuntarily by the end of 2005, GAO wrote. More than half of the DPNAs imposed gave homes up to three months to correct deficiencies, rather than those that only give homes 15 days, as is allowed. Finally, CMS did not impose a sanction for nearly one-quarter (22 percent) of the homes reviewed that met the agency's criteria for immediate sanctions, a problem that GAO had identified previously. CMS's implementation of immediate sanctions did not appear to deter future repeat violations at the homes studied: 18 of the 27 homes with immediate sanctions had multiple instances of such sanctions between 2000 and 2005. GAO's findings appear similar to its reports in 1998 and 1999, which identified significant weaknesses in government oversight and enforcement over nursing homes. Primarily GAO found then that sanctions imposed on nursing homes, including those that repeatedly harmed residents, often did not take effect because the nursing homes were given grace periods to correct deficiencies. Thus, "homes cycled in and out of compliance, harming residents while avoiding sanctions," GAO wrote. As a result, CMS created a new "immediate sanctions" policy for repeat offenders and developed of a new data system to improvement enforcement management. Under the new policy, CMS may impose sanctions without giving homes an opportunity to avoid them by correcting problems--for serious deficiencies that resulted in actual resident harm or put residents at risk of serious injury. GAO Recommendations GAO said management of nursing home enforcement "is hampered by the overall complexity of its immediate sanctions policy" and by its fragmented data systems and incomplete national reporting capabilities. To help improve nursing home care, GAO recommended that CMS develop an administrative process for collecting penalties more quickly and seek legislation to do so. The report also advised CMS to strengthen its immediate sanctions policy, expand its oversight of homes with a history of harming residents, and improve the effectiveness of its enforcement data systems. GAO recommended a reduction in the lag time between certain citations and the implementation of the sanctions and stop allowing repeat-offender nursing homes to escape sanctions. It also recommended holding states accountable for reporting serious deficiencies identified during complaint investigations. The report is available.
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