Improving the Quality of Care in Nursing Homes (1986) / Chapter Skim
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5. Enforcing Compliance with Federal Standards
5. Enforcing Compliance with Federal Standards
Pages 146-170
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From page 146... ...
The problem appears to be national in scope. Although public attention is focused on the relatively few scandalous cases, a more serious issue appears to be the large numbers of marginal or substandard nursing homes that are chronically out of compliance when surveyed, may or may not be subject to mild sanctions, temporarily correct their deficiencies under a plan of correction, and then quickly lapse into noncompliance until the next annual survey.
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From page 147... ...
In other cases, facilities may be decertified, but then quickly correct the deficiencies and promptly be recertified.2 When the federal government became directly involved in nursing home regulation after 1965, few nursing homes could meet federal standards. Strict enforcement of federal standards would have barred most nursing homes from participating in the Medicare program and therefore would have prevented many Medicare patients from receiving needed services.
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From page 148... ...
In practice, in the interest of eliminating the hazard as quickly as possible, nursing home regulators typically continue their efforts to gain compliance well after the point at which they could resort to formal sanctions.4 Substandard nursing homes apparently come into compliance long enough to be recertified, without penalty, but are again found out of compliance with the same or similar standards in one or more subsequent annual inspections.) Regulators in the
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From page 149... ...
The committee believes that current federal policies requiring consultation undermine state agency efforts to eliminate substandard providers and deter marginal facilities from repeating violations. Federal and state procedures for enforcement should be modified to reorient the program toward enforcement rather than consultation and to encourage states to adopt a stronger enforcement posture.
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From page 150... ...
There is potential conflict between the consulting and regulatory roles of a survey agency.6 The complianceoriented consulting role, combined with professional attitudes of surveyors trained in the helping professions such as nursing and social work, can lead surveyors to be too understanding and lenient toward substandard providers. Compliance-oriented enforcement may allow surveyors to work with a facility for long-range improvements, but the dilemma of compliance-oriented enforcement is that threats of punishment are not credible if they are not used predictably under specified circumstances.7 Without a credible threat of sanctions, many marginal or poor facilities never improve.
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From page 151... ...
The study found that in 126 problem facilities identified by the regional offices (most of them repeat violators) 60 had incidents of improper actions, including unmet deadlines, deviations from plan of correction procedures, and improper use of automatic cancellation clauses.5
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From page 152... ...
Most (30) survey agency directors think that a single onsite follow-up visit is sufficient.9 Given the range in facility size, numbers of deficiencies cited, and variation in scope and duration of correction plans, a broader range in the numbers of follow-up visits to facilities, and in their duration, is warranted.
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From page 153... ...
The survey of state agencies found that only 20 of the 47 states reporting have written guidelines for when and how to take formal enforcement actions.9 Generally, onsite post-survey revisits are made to facilities to check the progress of the correction plan. If the deficiency is a minor paper compliance item, such as amended bylaws or written policies, the facility may be allowed to mail the corrected documents for verification in lieu of an onsite visit.4 In most cases, however, onsite revisits are made to verify correction of deficiencies, generally within 60 to 90 days of the initial survey.9 Revisits must be made by a qualified surveyor or agency consultant.
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From page 154... ...
Stronger and more specific federal guidelines would facilitate stricter state enforcement. More intensive reviews of correction plans would not only ensure that plans are reasonable and carried out properly,
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From page 155... ...
Recommendation 5-1: The HCFA should revise its guiclelines for the post-survey process. Revisions should inclucle · specifying that survey agency personnel not be used as consultants to providers with compliance problems; · specifying how to evaluate plans of correction anal what constitutes an acceptable plan of correction; · specifying the circumstances under which onsite follow-up visits may be waivecl; · s peel f ying circu msta nces und er which f ormal enforcement action should be initiated, and how actions should be taken; cant ~ requiring that states have formal enforcement proced ures anal r'~echanisr'~s.
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From page 156... ...
Furthermore, if the provider has a Medicare contract, the state survey agency recommends to the federal regional office that the provider's Medicare contract be terminated. If the provider holds only a Medicaid contract, the state agency recommends to the state Medicaid agency that the provider's contract be terminated, and provides supporting documentation.
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From page 157... ...
. Automatic Cancellation Clause If a state agency determines that a provider has any deficiencies, the agency must issue a certification with an automatic cancellation date upon which the provider's certification will expire if the facility fails to correct the deficiencies by the given date.
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From page 158... ...
Suspension of Payment The Omnibus Budget Reconciliation Act of 1981 provided authority to the Secretary of Health and Human Services to deny Medicare payments for new admissions to providers who are out of compliance with conditions of participation, as long as the deficiencies do not pose an immediate threat to the health and safety of the residents in the facility. The act assigns similar authority over Medicaid-only facilities to state agencies.
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From page 159... ...
It reported that this mechanism is effective in coercing compliance with certification regulations. However, the statute and the proposed HCFA regulation on suspension of admission require that a formal hearing take place before the sanction takes effect, making the proposed sanction more difficult and slower to implement than Recertification.
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From page 160... ...
Finally, federal regulations should allow states to take into account prior years' survey findings as well as the most recent survey findings in applying sanctions. This is necessary to solve the problem of the chronically substandard facility.
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From page 161... ...
requiring states to obtain satisfactory assurances prior to granting a recertification that violations that led to a termination will not recur. In determining the past record of owners for consideration in certification decisions, states should use the definition of ownership applied under current Medicaid fraud statutes: any party having 5 percent or more interest in the facility, land, or deed.
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From page 162... ...
The federal courts have upheld state authority to sanction nursing homes under state licensing regulations.2~4 The availability and use of intermediate sanctions vary widely by state. Although the median state has eight sanctions available, each state tends to use a subset of those sanctions, usually in a particular sequence that is graduated in severity.
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From page 163... ...
. ,lcenslng Probationary 15 5 154 license Criminal penalties 30 5 376 for patient abuse License revocation 44 15 59 Involuntary 40 13 129 decertif ication Withholding of 19 3 272 payments SOURCE: Survey of State Licensure and Certification Agencies (see Appendix C)
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From page 164... ...
Because current state sanctions are operated under state licensure programs, no two states impose the same sanctions or follow the same procedures. If the states are to conduct an effective and uniform enforcement program, it will be necessary for all states (and the federal government)
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From page 165... ...
and implemented under a set of federal guidelines. This change would increase uniformity in enforcement activity and link intermediate sanctions directly to certification.
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From page 166... ...
In some states, civil penalty systems have performed up to expectations; in others, fines have rarely been used, or have been plagued by administrative problems.~4 Fines are a valuable enforcement tool because they can be applied to minor violations early and often, thus deterring facilities from making more serious transgressions. They also can be used for serious but isolated incidents.7~4 Such desirable versatility requires that violations be ranked according to seriousness and duration, and fines of appropriate size matched appropriately.
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From page 167... ...
Receivership can also be implemented quickly.~4 An effective receivership program requires that the state licensure agency maintain a list of potential receivers, and a fund for paying them. Receivers should be experienced private parties who are assigned to operate the facility for a limited time.
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From page 168... ...
Thirty-six state agencies now have this authority. Recommend ation 5-2: The Med icaid authority should be amended to authorize a specified set of intermediate sanctions for use by states and by the federal government in enforcing compliance with nursing home conditions of participation and standards.
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From page 169... ...
Survey agency staffs rarely include specialists trained in investigation and enforcement, although some states use separate teams of special investigators. Only 15 states have staff attorneys in their licensure agencies who are specifically designated to deal with enforcement issues.
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From page 170... ...
other en force me n I- re la ted s ta ff; · requiring survey and certification survey agency staffs to inclucle enforcer,~ent-related specialists, such as lawyers, auditors, and investigators, to work as part of special survey teams for problem situations and to help support enforcement decision-,,~aking; · including more training in investigatory techniques, witness preparation, and the legal systen' in the basic surveyor training course; and ~ provid ing fed eral training su pport for state survey agency and welfare agency attorneys in nursing home enforcement matters.
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