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8 Quality Assurance: Oversight and Regulation
Pages 399-452

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From page 399...
... In that respect, government regulations are intended to protect consumers and ensure accountability in the use of public funds by developing quality standards, evaluating whether nursing homes meet those standards, and enforcing sanctions when necessary (IOM, 2001)
From page 400...
... • In 1971, the Office of Nursing Home Affairs was created within HEW and tasked with enforcing quality improvement measures in nursing homes, reviewing federal long-term care policies, and providing guidance for agencies overseeing nursing homes. • The Social Security Amendments of 1972 included full federal funding of state survey and certification activities and directed HEW to develop quality standards for nursing homes that participate in Medicare and Medicaid.
From page 401...
... have largely defined nursing home quality assurance activities. To remain eligible for Medicare and Medicaid payments, nursing homes must meet requirements of participation2 covering a range of dimensions such as residents' rights, quality of care, and the physical environment 1 Omnibus Budget Reconciliation Act of 1987, Public Law 100-203; 100th Cong., 1st sess.
From page 402...
... . However, while substantial changes have occurred in nursing home care since the implementation of the OBRA 87 regulations, the general structure of the oversight and regulation of nursing homes has, for the most part, remained the same.
From page 403...
... FEDERAL AND STATE REGULATION The 1986 IOM report noted three components of government regulation of nursing homes that are important to quality assurance: 1. Criteria to determine quality; 2.
From page 404...
... Medicare and Medicaid are the predominant purchasers of nursing home care, and the need to maintain beneficiary access limits the ability of Medicare and Medicaid to demand quality that exceeds the requirements of participation. More demanding requirements of participation also need to be balanced with potential increases in program payments that ensure sufficient numbers of nursing homes will continue to serve beneficiaries.
From page 405...
... . Impact of Certificate-of-Need and Construction Moratoria on Nursing Homes The general principles behind certificate-of-need regulations may not apply to the nursing home setting, in that residents and their families often do have out-of-pocket expenditures for care (see Chapter 7)
From page 406...
... . The logic behind these regulations for nursing homes specifically is that limiting the number of beds will, in turn, limit the number of Medicaid beneficiaries in nursing home settings, thus keeping state Medicaid spending low.
From page 407...
... have highlighted the importance of capital investments for developing higher-quality models of nursing home care. Some have argued that certificate-of-need policies and construction moratoria are needed because of the decreasing occupancy rates in nursing homes.
From page 408...
... 408 Nursing Home Medicare/Medicaid Certification Survey Process Initial Survey for New Facilities Re-Survey of Participating Facilities facilities have the either provide evidence/plans of correction or are participating. FIGURE 8-1  Nursing home Medicare/Medicaid certification survey process.
From page 409...
... . State Surveyors for Long-Term Care Minimum standards to be a federal surveyor in long-term care facilities for the determination of Medicare/Medicaid compliance include • Appropriate background in the health professions or health administration; • Completion of an orientation program and basic surveyor training course; • Passing the Surveyor Minimum Qualifications Test; • Annual job-related training courses; • Lack of conflict of interest; and • Dedication of at least 50 percent of one's working time to survey activities or to meeting the professional qualifications for the sur veyor's health profession (CMS, 2019a)
From page 410...
... also called for evaluating surveyor staff to ensure that there is adequate staffing, additional training for state surveyors with a forum to meet and discuss common issues to ensure consistency, and standardized ongoing training requirements across states (OIG, 1999)
From page 411...
... This is one of the most important jobs in health care. And it's critical to people who live in nursing homes and who work in nursing homes.
From page 412...
... Specifically, nursing homes must • Make survey, certification, and complaint investigation reports available; • Investigate complaints and monitor compliance; and • Make information about what complaint forms are, how they are used, and how to file a complaint with the state survey and certifi cation program and the state long-term care ombudsman program available.7,8 States are responsible for receiving, prioritizing, and investigating complaints. The most serious complaints are categorized as either "immediate jeopardy" or "high priority" (also known as non-immediate jeopardy–high)
From page 413...
... State survey agencies are required to start an onsite survey within 10 business days.
From page 414...
... For more on states' performance in addressing complaints, see later in this chapter for a discussion of CMS oversight and performance of the state survey process. Additional State-Based Roles Although the most important role of states in nursing home oversight is assessing compliance with federal requirements, states that wish to increase the stringency of nursing home quality control have additional mechanisms available.
From page 415...
... PRIVATE ACCREDITATION Beyond the required government oversight, nursing homes can elect to undergo additional voluntary scrutiny through private accrediting entities such as The Joint Commission. Typically funded by fees from participating facilities, private accrediting agencies generally set detailed accreditation standards, assess facilities' compliance with those standards, and subsequently work with providers to address identified shortcomings and improve operations (Castle et al., 2011)
From page 416...
... Prior to OBRA 87, termination from participating in Medicare and Medicaid programs was the only available sanction for noncompliant facilities, but today there are a wider variety of intermediate options for penalizing noncompliant nursing homes. As noted earlier, states report survey findings about the scope and severity of deficiencies as well as their recommendations for enforcement actions to CMS.
From page 417...
... . Civil and Criminal Action Distinct from the mechanisms described above, the government can hold nursing homes liable for damages under fraud and abuse laws, such as under the federal False Claims Act (Landsberg and Keville, 2001)
From page 418...
... Attorneys' Offices. NNHI aims to pursue civil and criminal actions against nursing homes that provide substandard care and "owners and operators who have profited at the expense of their residents" (DOJ, 2020)
From page 419...
... Corporate Integrity Agreements Beyond the traditional survey process, a corporate integrity agreement allows nursing homes with identified quality-of-care problems to remain in the Medicare and Medicaid programs if they contract with an independent quality monitor that has been authorized by OIG to oversee clinical improvement and compliance. Corporate integrity agreements generally last for 5 years (OIG, 2022b)
From page 420...
... However, many graduates fail to sustain improvement (or may even regress) and the budget for the SFF program only allows for oversight of a small fraction of the nursing homes deemed to be among the most poorly performing (CMA, 2019; GAO, 2010a; Rau, 2017)
From page 421...
... . OIG's recommendations included better tracking of the outcomes of remedies, establishing guidelines for progressive enforcement actions on the state, and actively disseminating state performance metrics with other stakeholders.
From page 422...
... One analysis of the most recent Community Assessment for Public Health Emergency Response survey found that this happens only to a small extent. In 2018, for example, one- and five-star nursing homes differed in survey frequency by only 11 days on average, with an average of 399 days between surveys for all facilities (Stevenson, 2019)
From page 423...
... . Examples of possible collaborations include that state survey agencies could require nursing homes to develop and implement plans of correction for areas where they are falling short, or in advance of imposing fines, survey agencies could encourage nursing homes to work with quality improvement technical-assistance programs to help them identify and address the root causes of their problems (Stevenson and Mor, 2009)
From page 424...
... . Ombudsmen can serve as liaisons between the government and facilities by communicating information about best practices to nursing homes, responding to concerns about oversight and quality of care, and alerting government agencies to problems that require their attention (Berish et al., 2019)
From page 425...
... . Extent of Services In FY 2017, ombudsmen visited 68 percent of all nursing homes on at least a quarterly basis for routine visits and, when also including complaint investigations, 79 percent of nursing homes (NORC, 2019)
From page 426...
... . Among the paid state ombudsmen who reported visiting nursing homes, 45 percent did so on a routine basis, compared with 81 percent of local ombudsmen and 95 percent of volunteer ombudsmen (NORC, 2019)
From page 427...
... The primary goal of such councils is to improve the quality of care and life within nursing homes (Grant, 2021)
From page 428...
... Regulation specifies that the role of the federal government is to ensure the requirements of participation are enforced and "are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys."12 (See later in this chapter for more on transparency related to the financing of nursing home care.) It is difficult to calculate the total costs to federal and state governments of regulating nursing homes, and few studies have done so.
From page 429...
... The committee recognizes that these issues are prevalent across the entire health care system, and not limited to nursing homes. However, the following sections highlight the implications of this lack of transparency on improving the quality of nursing home care.
From page 430...
... . Private equity ownership of nursing homes has been associated with higher short-term mortality; lower measures of well-being, such as mobility; higher numbers of total deficiencies; lower total nurse staffing ratios (i.e., fewer hours per resident day)
From page 431...
... Publicly available ownership information needs to reflect and capture the complexity of today's nursing home sector (e.g., operations, ownership structures) to enable tracking quality across nursing homes with a common owner, understand which entities are responsible for care, and determine which entities are benefiting from Medicare and Medicaid payments or favorable tax policies that might further entice them into the sector (e.g., REIT investors)
From page 432...
... . In addition, it has become more apparent over the last few decades that nursing homes' real estate assets are central to the entities that choose to invest in this sector.
From page 433...
... I want to emphasize the need to change how privately owned nursing homes are allowed to separate ownership into real estate and operations, allowed to create related-party businesses that siphon off profits that should go to staff and care." -- Daughter and caregiver of two parents with dementia who needed nursing home care This quote was collected from the committee's online call for resident, family, and nursing home staff perspectives.
From page 434...
... . Sponsors of the legislation argued that large, for-profit nursing homes were "using complex ownership structures to increase profitability by shielding funds behind the corporate family so that these funds cannot be fully considered by the state when it sets rates and reimbursements for care" and that the reports would allow the state to evaluate if nursing homes were diverting revenues into related entities rather than directing the funds toward resident care (Grajeda and Yood, 2021)
From page 435...
... . Families expressed concern that their loved ones in nursing homes seemed more lethargic, had worse physical health, and stopped smiling and laughing amidst the visitation restrictions and reduced oversight (HRW, 2021; Nash et al., 2021)
From page 436...
... The isolation worsened my mom's heart failure and dementia." -- Anonymous, Brunswick, Ohio These quotes were collected from the committee's online call for resident, family, and nursing home staff perspectives. ranging from 22 to 96 percent of nursing homes by state (with a national average of 71 percent)
From page 437...
... KEY FINDINGS AND CONCLUSIONS General Oversight and Regulation • While substantial changes have occurred in nursing home care since the implementation of OBRA 87 regulations, the general structure of the oversight and regulation of nursing homes has largely re mained the same. • The oversight and enforcement of nursing home rules were scaled back in 2017 as part of a broader movement to reduce bureaucracy and government intervention.
From page 438...
... • The budget of the SFF program allows for oversight of only a very small fraction of low-performing nursing homes, and many facili ties that graduate from the program fail to sustain improvement. Long-Term Care Ombudsman Program • There is considerable variation in the resources, funding, and staff ing among ombudsman programs, and limited funding affects pro grams' abilities to meet federal and state requirements and to fully
From page 439...
... • Increased transparency and accountability of the finances, opera tions, and ownership of nursing homes is important for improving the financial investment in nursing home care as well as to improve quality assurance, all toward the common goal of improving the quality of care in nursing homes. COVID-19 • During the pandemic, regulators had a difficult balance to strike -- maintaining general protections and accountability while ensuring that nursing homes had sufficient flexibility and resources to meet residents' needs.
From page 440...
... 2021. Providers rejoice after receiving liability protections for nursing homes.
From page 441...
... https://fee.org/articles/the-great-healthcare-con (accessed February 4, 2022)
From page 442...
... 2009. Quality of care in for-profit and not-for-profit nursing homes: Systematic review and meta-analysis.
From page 443...
... 2018. Corporate integrity agreements and nursing homes.
From page 444...
... 2009d. Nursing homes: CMS's special focus facility methodology should better target the most poorly performing homes, which tended to be chain affiliated and for-profit.
From page 445...
... 2021. 10 steps to reform and improve nursing homes.
From page 446...
... 1996. Nursing staff in hospitals and nursing homes: Is it adequate?
From page 447...
... 2001. Nursing homes face quality-of-care scrutiny under the False Claims Act.
From page 448...
... 2011. Does state regulation of quality impose costs on nursing homes?
From page 449...
... 2021. States' backlogs of standard surveys of nursing homes grew substantially during the COVID-19 pandemic: Addendum to oei-01-20-00430.
From page 450...
... 2018. 1,400 nursing homes get lower Medicare ratings because of staffing concerns.
From page 451...
... 2019. Civil money penalty enforcement actions for quality deficiencies in nursing homes.
From page 452...
... 2019. Wyden statement at Finance Committee hearing on nursing homes and elder abuse.


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