Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents

Highlights

In 1998 and 1999 reports, GAO concluded that enforcement actions, known as sanctions, were ineffective in encouraging nursing homes to maintain compliance with federal quality requirements: sanctions were often rescinded before being implemented because homes had a grace period to correct deficiencies. In response, the Centers for Medicare & Medicaid Services (CMS) began requiring immediate sanctions for homes that repeatedly harmed residents. Using CMS enforcement and deficiency data, GAO (1) analyzed federal sanctions from fiscal years 2000 through 2005 against 63 homes previously reviewed and (2) assessed CMS's overall management of enforcement. The 63 homes had a history of harming residents and were located in 4 states that account for about 22 percent of homes nationwide.

Recommendations

Recommendations for Executive Action

Agency Affected	Recommendation	Status
Centers for Medicare & Medicaid Services	To address weaknesses that undermine the effectiveness of the immediate sanctions policy, the Administrator of CMS should reassess and revise the policy to ensure that it accomplishes the following three objectives: (1) reduce the lag time between citation of a double G and the implementation of a sanction, (2) prevent nursing homes that repeatedly harm residents or place them in immediate jeopardy from escaping sanctions, and (3) hold states accountable for reporting in federal data systems serious deficiencies identified during complaint investigations so that all complaint findings are considered in determining when immediate sanctions are warranted.	Closed – Not Implemented At the time our report was issued CMS agreed with the recommendation and over a number of years took some actions to partially address some of the recommendation such as working with states on complaint findings and trying to reduce the lag time between double G citations and sanction implementation. However, in 2015 CMS indicated no further actions were planned and that it considers the matter closed.
Centers for Medicare & Medicaid Services	To strengthen the deterrent effect of available sanctions and to ensure that sanctions are used to their fullest potential, the Administrator of CMS should ensure the consistency of CMPs by issuing guidance such as the standardized CMP grid piloted during 2006.	Closed – Implemented The civil monetary penalties (CMP) levied against the homes we reviewed were often nominal, significantly less than the maximum amount Congress provided for in statute. To strengthen CMPs, CMS had been developing a CMP grid since 2004 to guide states and regional offices in determining appropriate CMP amounts and CMS regional offices piloted the grid in 2006. We recommended that CMS ensure the consistency of CMPs by issuing guidance such as the standardized CMP grid piloted during 2006. CMS did so on June 22, 2007.
Centers for Medicare & Medicaid Services	To strengthen the deterrent effect of available sanctions and to ensure that sanctions are used to their fullest potential, the Administrator of CMS should increase use of discretionary DPNAs to help ensure the speedier implementation of appropriate sanctions.	Closed – Not Implemented August 2009 update: CMS does not plan to take any action on this issue because they feel the current policy guidance is adequate. August 2008 update: CMS has not issued new guidance to states on this recommendation citing resource constraints and competing priorities. We will follow up with CMS in 2009 on the implementation of this recommendation. CMS indicated it will issue further guidance for states on factors to be considered in determining whether a discretionary DPNA is imposed or a termination date is set earlier than the time periods required by law.
Centers for Medicare & Medicaid Services	To strengthen the deterrent effect of available sanctions and to ensure that sanctions are used to their fullest potential, the Administrator of CMS should strengthen the criteria for terminating homes with a history of serious, repeated noncompliance by limiting the extension of termination dates, increasing the use of discretionary terminations, and exploring alternative thresholds for termination, such as the cumulative duration of noncompliance.	Closed – Not Implemented August 2009 update: CMS does not plan to take action on this recommendation because they feel the policy guidance is adequate. August 2008 update: CMS has not issued new guidance to states on this recommendation citing resource constraints and competing priorities. We will follow up with CMS in 2009 to determine the implementation status of this recommendation. CMS stated it will work with states, consumer organizations, stakeholders, and others to design proposals for a better combination of enforcement actions for homes with repeated quality of care deficiencies.
Centers for Medicare & Medicaid Services	To collect CMPs more expeditiously, which could increase their deterrent effect, the Administrator of CMS should develop an administrative process under which CMPs would be paid--or Medicare and Medicaid payments in equivalent amounts would be withheld--prior to exhaustion of appeals and seek legislation for the implementation of this process, as appropriate. Payments could be refunded with interest if the deficiencies are modified or overturned at appeal.	Closed – Implemented August 2008 update: CMS submitted a legislative proposal to the Department of Health and Human Services in August 2007, and communicated the agency's support and the advisability of moving forward with legislative authority to collect CMPs prior to the exhaustion of appeals. Aug. 2007: We will follow up with CMS in 2008 to determine the implementation status of this recommendation. CMS agreed to seek legislative authority to collect CMPs prior to the exhaustion of appeals.
Centers for Medicare & Medicaid Services	To strengthen sanctions for homes with a history of noncompliance, such as a large number of deficiencies or a large number of actual harm and immediate jeopardy deficiencies, the Administrator of CMS should consider further expanding the Special Focus Facility program with its enhanced enforcement requirements to include all homes that meet a threshold, established by CMS, to qualify as poorly performing homes.	Closed – Implemented Update: As of Sept 2010, CMS has expanded the SFF program. According to the CMS S&C Memo (S&C 10-32-NH) "The number of SFF slots for each State are adjusted to reflect the current population of nursing homes in each State and a ten percent increase in SFF slots nationally. New Computation of the Candidate List effective in the Fall 2010, the candidate list will be adjusted so that each SFF slot will have 5 candidates from which States may recommend selection." Aug 2010 update: CMS drafted an S&C letter with guidance, including the increase of SFFs by 10%, but the initiative is delayed due to implementing the Affordable Care Act. CMS expects issuance of the revised guidance, and expansion of the number of Special Focus Facilities (SFFs), effective for FY 2011. Aug 2009 update: CMS has indicated that it might increase the number of SFFs by 25-30% (about one per state) if the President's full budget request is supported by Congress. We will follow up on this recommendation next year. Auditors Note: In Dec 09, Congress approved the full budget request for CMS's Survey and Certification branch (an increase of approximately 18%). Based on this, we anticipate that CMS would expand the SFF program. August 2008 update: CMS has not expanded the SFF program, but has taken the following steps to strengthen the program: (1) developed a template for systems integrity agreements, which may be used as an alternative to termination; (2) issued a survey and certification letter in Nov. 2007 directing states to notify nursing homes of their candidacy for the SFF program; and (3) publicly named in Nov. 2007, special focus facilities that had not improved. CMS also is developing a survey and certification letter describing the formula used to identify SFF candidates; target issuance date is October 2008. Aug. 2007: We will follow up with CMS in 2008 to determine the implementation status of this recommendation. CMS agreed with the concept of expanding the special focus facility program to include all homes that meet a threshold qualifying them as poorly performing home but said it lacks the resources needed for this expansion. CMS also identified other initiatives it will implement to improve it special focus facility program.
Centers for Medicare & Medicaid Services	To improve the effectiveness of its new enforcement data system, the Administrator of CMS should develop the enforcement-related data systems' abilities to interface with each other in order to improve the tracking and monitoring of enforcement, such as by developing an automatic interface between systems such as ASPEN Enforcement Manager (AEM) and ASPEN Complaints/Incidents Tracking System.	Closed – Implemented August 2008 update: CMS has developed linkages between AEM and ACTS. Aug. 2007: We will follow up with CMS in 2008 to determine the implementation status of this recommendation. CMS agreed to study the feasibility of linking the separate data systems used for enforcement; however, it indicated that available resources may limit further action.
Centers for Medicare & Medicaid Services	To improve the effectiveness of its new enforcement data system, the Administrator of CMS should expedite the development of national enforcement reports, including longitudinal and trend reports designed to evaluate the effectiveness of sanctions and enforcement policies, and a concrete plan for using the reports.	Closed – Implemented August 2008: CMS has developed six, national AEM reports: (1) 0700D Denial of Payment; (2)0701S Denial of Payment Summary; (3) 0702D No RO Letter Sent by 70th Day; (4) 0703D Federal Waivers; (5)0704D Enforcement Cases with CMPs; and (6)0705D Enforcement Case Counts. These reports can be downloaded by states and CMS regional offices. Aug. 2007: We will follow up with CMS in 2008 to determine the implementation status of this recommendation. CMS agreed to study the feasibility of developing national standard enforcement reports, but states that further action on these reports may be limited by resource availability.
Centers for Medicare & Medicaid Services	To improve the effectiveness of its new enforcement data system, the Administrator of CMS should develop and institute a system of quality checks to ensure the accuracy and integrity of AEM data, such as periodic data audits conducted as part of CMS's annual state performance reviews.	Closed – Implemented Aug 2010: CMS officials reported that this recommendation is open but that CMS has changed program priorities to meet deadlines in the Affordable Care Act. CMS has no estimate of when changes to the system can be implemented. Aug 2009: CMS officials told us the recommendation is still open and explained "Due to budget and resource limitations, we will be unable to make any additional changes to ASPEN Enforcement Manager (AEM) in the next 15 months (Sept 2010)." August 2008 update: CMS has not instituted a formal system of quality checks. When data quality problems stand out, CMS central office follows-up with the regional offices informally. Aug. 07: We will follow up with CMS in 2008 to determine the implementation status of this recommendation. CMS agreed to develop an implement a system of quality checks to ensure the accuracy of its data systems including ASPIN Enforcement Manager (AEM).
Centers for Medicare & Medicaid Services	To improve public information available to consumers that helps them assess the quality of nursing home care, the Administrator of CMS should expand CMS's Nursing Home Compare Web site to include implemented sanctions, such as the amount of CMPs and the duration of DPNAs, and homes subjected to immediate sanctions.	Closed – Implemented July 2011: As of July 2011, CMS is now posting enforcement action data on Nursing Home Compare. Specifically, they are posting information about the number of Civil Money Penalties and Denials of Payment for New Admissions that have been levied against the home.August 2008: CMS will not take further action on this recommendation because it is implementing a new five-star rating system for nursing homes, which the agency believes is superior to adding enforcement action data on Nursing Home Compare. Aug. 07: We will follow up with CMS in 2008 to determine the implementation status of this recommendation. CMS proposed public reporting of implemented sanctions only for poorly performing homes that meet an undefined threshold. This approach is not fully responsive to our recommendation which covered implemented sanctions against all nursing homes.