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entitled 'Nursing Home Deaths: Arkansas Coroner Referrals Confirm
Weaknesses in State and Federal Oversight of Quality of Care' which was
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Report to Congressional Requesters:
United States Government Accountability Office:
GAO:
November 2004:
Nursing Home Deaths:
Arkansas Coroner Referrals Confirm Weaknesses in State and Federal
Oversight of Quality of Care:
GAO-05-78:
GAO Highlights:
Highlights of GAO-05-78, a report to congressional requesters:
Why GAO Did This Study:
GAO was asked to assess the effectiveness of nursing home oversight by
considering the effect of a unique Arkansas law that requires county
coroners to investigate all nursing home deaths. Coroners refer cases
of suspected neglect to the state survey agency and law enforcement
entities such as the state Medicaid Fraud Control Unit (MFCU). The
Centers for Medicare & Medicaid Services (CMS) contracts with survey
agencies in every state to periodically inspect nursing homes and
investigate allegations of poor care or neglect. MFCUs are charged with
investigating and prosecuting resident neglect. GAO examined (1) the
results of Arkansas coroner investigations, (2) the state survey
agency’s experience in investigating coroner referrals, and (3) whether
weaknesses in state and federal nursing home oversight identified in
prior GAO reports were evident in the survey agency’s investigation of
coroner referrals.
What GAO Found:
According to the Pulaski County coroner, he referred 86 cases of
suspected resident neglect to the state survey agency for the period
July 1999, when the Arkansas law took effect, through December 2003.
Agency officials said that other state coroners referred four cases
during this time period. Importantly, these 86 referrals constituted
just 2.2 percent of all nursing home deaths the coroner investigated.
However, the referrals included disturbing photos and descriptions of
the decedents, suggesting serious, avoidable care problems; more than
two-thirds of the 86 referrals listed pressure sores as the primary
indicator of neglect. Some photos of decedents’ pressure sores depicted
skin conditions so deteriorated that bone or ligament was visible, as
were signs of infection and dead tissue. The referrals involved 27
homes, over half of which had at least 3 referrals.
Arkansas state survey agency officials told GAO that they received 36
(fewer than half) of the Pulaski County coroner’s referrals. The 50
referrals not received described decedents’ conditions similar to those
the survey agency did receive. Of the 36 referrals for alleged neglect
that it received, the survey agency complaint investigations
substantiated 22 and eventually it closed the home with the largest
number of referrals. However, the agency’s investigations often
understated serious care problems—both when neglect was substantiated
and when it was not. For 11 of the 22 substantiated referrals, the
state survey agency either cited no deficiency for the decedent or
cited a deficiency at a level lower than actual harm for the
predominant care problem identified by the coroner. In contrast, MFCU
investigations of many of the 11 referrals found the homes negligent in
caring for decedents, and the MFCU reached settlements with the owners
of several homes. In half of the 14 referrals not substantiated, the
MFCU or an independent expert in long-term care either found neglect or
questioned the “not substantiated” finding. Moreover, they found gaps
and contradictions in the medical records for some decedents, raising a
question about the survey agency’s conclusions that the same records
indicated appropriate care had been provided.
GAO’s prior work on nursing home quality of care found that weaknesses
in federal and state oversight nationwide contributed to serious,
undetected care problems indicative of resident neglect. GAO’s review
of the Arkansas survey agency’s investigations of coroner referrals
confirmed that serious, systemic weaknesses remain. Oversight
weaknesses GAO previously identified nationwide and those it found in
Arkansas included (1) complaint investigations that understated the
seriousness of allegations and were not timely; (2) predictable timing
of annual state surveys that could enable nursing homes so inclined to
cover up deficiencies; (3) survey methodology weaknesses, coupled with
surveyor reliance on misleading medical records, that resulted in
missed care problems; and (4) a policy that did not always hold homes
accountable for neglect associated with a resident’s death.
What GAO Recommends:
GAO recommends that the CMS Administrator revise CMS’s policy on citing
deficiencies to better ensure that nursing homes are held accountable
for care problems identified after a resident’s death. CMS concurred
with GAO’s recommendations and listed numerous initiatives it plans in
response to the report’s findings.
www.gao.gov/cgi-bin/getrpt?GAO-05-78.
To view the full product, including the scope and methodology, click on
the link above. For more information, contact Kathryn G. Allen at (202)
512-7118.
[End of section]
Contents:
Letter:
Results in Brief:
Background:
Coroner Referrals of Suspected Neglect, While Few in Number, Indicated
Serious Care Problems:
The State Survey Agency's Investigation of Coroner Referrals Often
Understated Neglect of Residents:
Resident Neglect May Go Undetected Because of Well-Documented Oversight
Weaknesses:
Conclusions:
Recommendations for Executive Action:
Agency and State Comments and Our Evaluation:
Appendix I: Coroner Referrals for Pressure Sores and the Seriousness of
Deficiencies Cited on Standard Surveys:
Appendix II: Coroner Referrals That the State Survey Agency Reported as
Not Received, Substantiated, or Not Substantiated:
Appendix III: Comments from the Centers for Medicare & Medicaid
Services:
Appendix IV: Comments from the Arkansas Department of Human Services:
Related GAO Products:
Tables:
Table 1: Possible Outcomes of State Survey Agency Complaint
Investigations:
Table 2: Scope and Severity of Deficiencies Identified during Nursing
Home Surveys:
Table 3: Description of Pressure Sore Stages:
Table 4: Pulaski County Coroner Referrals Received by State Survey
Agency and MFCU, July 1999 through December 2003:
Table 5: Extent to which the State Survey Agency Cited Serious
Deficiencies for Substantiated Referrals from the Pulaski County
Coroner:
Table 6: Six Coroner Referrals Where the MFCU Found Negligence by the
Nursing Home but the State Survey Agency either Cited No Deficiency or
a Deficiency at Less than Actual Harm for the Decedent:
Figures:
Figure 1: Predominant Care Problems Identified in Pulaski County
Coroner Referrals to State Survey Agency and the MFCU, July 1999
through December 2003:
Figure 2: Number of Pulaski County Coroner Referrals of Suspected
Neglect, by Nursing Home, July 1999 through December 2003:
Figure 3: Elapsed Working and Calendar Days between Receipt of
Coroner's Referral and Start of Investigation by Arkansas State Survey
Agency:
Abbreviations:
CMS: Centers For Medicare & Medicaid Services:
MFCU: Medicaid Fraud Control Unit:
OSCAR: On-Line Survey, Certification, and Reporting system:
United States Government Accountability Office:
Washington, DC 20548:
November 12, 2004:
The Honorable Charles E. Grassley:
Chairman:
Committee on Finance:
United States Senate:
The Honorable Christopher S. Bond:
United States Senate:
An October 2002 series in the St. Louis Post Dispatch concluded that
avoidable deaths of vulnerable nursing home residents was a widespread
but rarely investigated problem. The series spotlighted an Arkansas law
requiring investigations by county officials, such as coroners, of all
nursing home deaths.[Footnote 1] Under this law, deaths associated with
suspected resident neglect, including poor quality care, are referred
to the state survey agency and to law enforcement entities. The Centers
for Medicare & Medicaid Services (CMS), the federal agency responsible
for managing Medicare and Medicaid, contracts with survey agencies in
every state to oversee the quality of nursing home care. In 1998, we
reviewed allegations that thousands of California nursing home
residents died because of poor care. We found oversight weaknesses that
were systemic and not limited to California. Despite federal and state
oversight, over half of the decedents in our sample had received
unacceptable care that sometimes endangered their health and
safety.[Footnote 2] We also found that state surveyors sometimes
classified deficiencies at homes where residents had died as less
serious than warranted. Our subsequent reports on nursing home quality
continued to demonstrate that (1) an unacceptably large proportion of
nursing homes--one-fifth as of early 2002--harmed residents and (2)
states' periodic inspections of nursing homes failed to identify all
serious deficiencies, such as preventable weight loss and pressure
sores.[Footnote 3]
Our preliminary work on this report found that the 1999 Arkansas law
was the only such law nationwide.[Footnote 4] You asked us to consider
Arkansas's experience with required coroner investigations to assess
the effectiveness of nursing home oversight by the Arkansas state
survey agency and by CMS. Specifically, we examined (1) the results of
Arkansas coroner investigations of nursing home resident deaths, (2)
the experience of the Arkansas state survey agency in investigating
suspected cases of resident neglect referred by county coroners, and
(3) whether systemic weaknesses in state and federal nursing home
oversight identified in our prior reports were evident in the survey
agency's investigations of coroner referrals.[Footnote 5]
To identify the results of nursing home death investigations by
Arkansas's 75 coroners, we asked the Arkansas Office of Long Term Care,
the state survey agency, to identify referrals from each county coroner
since the law's effective date.[Footnote 6] Because the agency told us
that all but four of the referrals were made by the Pulaski County
coroner, where the state capital Little Rock is located, we focused on
that county's referrals. We obtained and reviewed copies of the
coroner's referrals, including the investigative reports, autopsy
reports (if one was conducted), and photos of decedents that documented
suspected care problems. We interviewed the Pulaski County coroner to
determine how reported deaths were investigated, the basis for
determining when referrals were warranted, and the process for
transmitting referrals to the state survey agency and law enforcement
entities. To evaluate state survey agency investigations of coroner
referrals of suspected nursing home neglect, we asked the Arkansas
survey agency to provide documentation on the results of its
investigations. Since the agency treats such referrals as complaints,
we reviewed the agency's guidance to surveyors on complaint
investigations and discussed the procedures with agency officials. We
followed up with agency staff to clarify facts regarding specific
investigations of coroner referrals, as needed. To assess the overall
quality of care provided at homes with coroner referrals, we obtained
data from the survey agency on other complaints against these homes and
analyzed data in CMS's On-line Survey, Certification, and Reporting
system (OSCAR). CMS officials generally recognize OSCAR data to be
reliable, and we judged it to be appropriate for our work.
Since the Pulaski County coroner referrals were also sent to the
Arkansas Medicaid Fraud Control Unit (MFCU), we obtained copies of its
investigative files. MFCUs are charged with investigating and
prosecuting Medicaid provider fraud and incidents of patient abuse and
neglect. In Arkansas, the MFCU is located within the office of the
state attorney general. We compared the results of the state survey
agency and MFCU investigations to identify similarities and differences
in their findings. For some coroner referrals of suspected resident
neglect for which we questioned the state survey agency's decision to
not substantiate the existence of serious care problems, we asked a
professor of nursing with expertise in long-term care to assess the
consistency between the findings from the agency's investigations and
the decedents' conditions as documented by the coroner. The expert's
assessment was based on a review of the various investigative reports,
medical records we obtained, and photos of decedents taken by the
coroner. We also discussed our evaluation of the investigations with
officials from the Arkansas state survey agency, the MFCU, and CMS. To
identify whether systemic weaknesses in state and federal nursing home
oversight were evident in the survey agency's investigations of coroner
referrals, we reviewed our findings regarding the Arkansas state survey
agency's investigations in the context of our prior work on nursing
home quality. We conducted our work from August 2003 through October
2004 in accordance with generally accepted government auditing
standards.
Results in Brief:
According to the Pulaski County coroner, he made 86 referrals to the
state survey agency of nursing home deaths where neglect was suspected
from July 1999, when the Arkansas law took effect, through December
2003. The 86 referrals, constituting 2.2 percent of the approximately
4,000 nursing home deaths the Pulaski County coroner investigated in
the 4.5-year period, included disturbing photos and descriptions of the
decedents that suggested the existence of serious, avoidable care
problems. In over two-thirds of the coroner referrals, pressure sores
were the predominant indication of suspected neglect identified during
the physical examinations of the decedents, and for some decedents
these were at the stage described as life-threatening. For example, the
photos of some decedents' pressure sores depicted individuals with skin
conditions so deteriorated that bone or ligament was visible, as were
signs of infection and dead tissue. The coroner also cited injuries
such as falls and broken bones in about 6 percent of the 86 cases. The
referrals involved a total of 27 homes, over half of which had three or
more referrals during the 4.5-year period.
The Arkansas state survey agency informed us it received 36 coroner
referrals--fewer than half of those the coroner said he referred--and
the MFCU reported it received 51, almost three-fifths. According to the
coroner, the referrals were hand delivered to ensure that none were
lost and in March 2004, the coroner began requesting signed receipts.
Of the 36 referrals that it investigated, the survey agency
substantiated 22 and eventually closed the home with the largest number
of referrals. However, the survey agency's investigations often
understated serious care problems--for both substantiated and
unsubstantiated referrals. For 11 of the 22 substantiated referrals,
the state survey agency found other care problems but either cited no
deficiency or cited a deficiency at a level lower than actual harm for
the predominant care problem identified by the coroner. The MFCU's
investigations of 6 of these 11 referrals, however, found the nursing
homes negligent in providing care, in effect substantiating the
existence of serious care problems. Moreover, the MFCU reached
settlements with owners of several of the nursing homes. Although we
did not examine each of the 14 unsubstantiated referrals in detail, the
state survey agency's findings for seven decedents were questioned by
the MFCU's investigation, which identified neglect, or by our expert
consultant, who questioned the basis for the not-substantiated finding.
Examples of neglect they identified included the development of
avoidable pressure sores and the lack of a treatment plan. The MFCU and
our expert consultant also found omissions and contradictions in the
medical records for 4 of the 14 referrals, raising a question about the
state survey agency's conclusions that the same records indicated
appropriate care had been provided.
We found the same serious, systemic survey and oversight weaknesses in
the Arkansas state survey agency's investigation of coroner referrals
that our prior work on nursing home quality of care identified
nationwide. These weaknesses included (1) understatement of the
seriousness of complaints and a failure to investigate serious
complaints promptly; (2) predictable timing of state surveys, which
could enable a home so inclined to cover up deficiencies; (3) survey
methodology weaknesses that result in overlooked care problems; and (4)
not holding nursing homes accountable for neglect associated with a
resident's death. CMS discourages surveyors from citing a deficiency
for a care problem involving a deceased resident unless the problem was
so serious that it contributed to or caused a resident's death or
unless the same problem can be identified for individuals still
residing at the nursing home. If a similar problem is not identified
during a complaint investigation that assesses care provided to current
residents, it is assumed to have been recognized by the home and
corrected. However, our prior work demonstrated, and our work in
Arkansas confirmed, that (1) nursing home records can contain
misleading information or omit important data, making it difficult for
surveyors to identify care deficiencies during their on-site reviews;
and (2) states' surveys of nursing homes do not identify all serious
deficiencies, such as preventable weight loss and pressure sores. Given
the results of our prior work, we believe that the serious, undetected
care problems identified by the Pulaski County coroner are likely a
national problem not limited to Arkansas.
We are recommending that the Administrator of CMS revise CMS's policy
on citing deficiencies to better ensure that nursing homes are held
accountable for care problems identified after a nursing home
resident's death. CMS concurred with our recommendations to revise its
policy on citing deficiencies for past noncompliance and also
identified more than a dozen additional initiatives it plans to take to
address shortcomings in the nursing home survey process. CMS commented
that the focus of its initiatives, such as additional guidance on the
scope and severity of deficiencies, would be broad, a recognition that
the shortcomings we identified were systemic and not limited to
Arkansas. Both CMS and the state survey agency raised concerns about
the discrepancy we reported between the number of referrals the coroner
said he made (86) and the number the survey agency said it received
(36). In addition, the state survey agency commented that we had
understated the number of investigations it actually conducted. We
revised the report to address these concerns. In oral comments, the
Pulaski County coroner indicated that he believes the law has had a
significant, positive impact on the quality of care provided to nursing
home residents in Pulaski County. The MFCU did not provide comments. We
incorporated technical comments from CMS, the state survey agency, and
the Pulaski County coroner, as appropriate.
Background:
Combined Medicare and Medicaid payments to nursing homes for care
provided to vulnerable elderly and disabled beneficiaries totaled about
$64 billion in 2002, with total federal payments of approximately $45.5
billion. Oversight of nursing home quality is a shared federal-state
responsibility. On the basis of statutory requirements, CMS defines
standards that nursing homes must meet to participate in the Medicare
and Medicaid programs, and contracts with states to assess, through
annual surveys and complaint investigations, whether homes meet these
standards. CMS is also responsible for monitoring the adequacy of state
survey activities. Arkansas's unique 1999 law requires investigations
by county officials, such as coroners, of nursing home residents'
deaths and referral of any cases of suspected neglect to the state
survey agency and the MFCU.
Standard Surveys:
Every nursing home receiving Medicare or Medicaid payments must undergo
an unannounced standard survey not less than once every 15 months, and
the statewide average interval for these surveys must not exceed 12
months.[Footnote 7] A standard survey entails a team of state
surveyors, including registered nurses, spending several days in the
nursing home to assess compliance with federal long-term care facility
requirements, particularly whether care and services provided meet the
assessed needs of the residents and whether the home is providing
adequate quality of care, such as preventing avoidable pressure sores,
weight loss, or accidents. State surveyors assess the quality of care
provided to a sample of residents during the standard survey, which is
the basis for evaluating nursing homes' compliance with federal
requirements. CMS establishes specific investigative protocols for
state surveyors to use in conducting these comprehensive surveys. These
procedural instructions are intended to make the on-site surveys
thorough and consistent across states. When a deficiency is identified,
the nursing home is required to prepare a plan of correction that must
be approved by the state survey agency. Our earlier work indicated that
facilities could mask certain deficiencies, such as routinely having
too few staff to care for residents, if they could predict the survey
timing; CMS therefore directed states, effective in 1999, to (1) avoid
scheduling a home's survey for the same month of the year as the home's
previous standard survey and (2) begin at least 10 percent of standard
surveys outside the normal workday (either on weekends, early in the
morning, or late in the evening).
Complaint Investigations:
Complaint investigations provide an opportunity for state surveyors to
intervene promptly if quality-of-care problems arise between standard
surveys. A nursing home resident, family member, friend, nursing home
employee, or others may file complaints. CMS requires the investigation
of complaints that represent immediate jeopardy to resident health and
safety within 2 working days and considers such complaints to be those
where one or more of the conditions alleged in the complaint, if true,
may have caused or is likely to cause serious injury, harm, impairment,
or death to a resident. Beginning in 1999, CMS required investigation
of complaints that allege harm to a resident (but which do not rise to
the level of immediate jeopardy) within 10 working days, but did not
provide detailed guidance to the states about what constitutes harm
until November 2003. In November 2003 guidance, CMS generally defined
two categories of complaints representing harm: (1) those that, if
true, would impair the resident's mental, physical, and/or psychosocial
status, which must be investigated within 10 working days, and (2)
those that would not significantly impair the resident's mental,
physical, and/or psychosocial status, which must be investigated within
45 calendar days. Other complaints that do not rise to the level of
either immediate jeopardy or harm do not have to be investigated until
the home's next survey, or in some cases, not at all if the state
survey agency can determine with certainty that no investigation,
analysis, or action is necessary. The requirements identified in the
November 2003 guidance became effective on January 1, 2004.
Generally, nurse surveyors investigate complaints onsite at the nursing
home by reviewing medical records and interviewing staff and residents.
The investigations typically include a sample of residents in addition
to the resident who is the subject of the complaint to help determine
if the problems are systemic. Depending on the volume of complaints
against a particular home, several complaints for different residents
may be investigated concurrently. Each complaint may contain one or
more allegations that a facility is violating federal quality-of-care
standards. For example, a single complaint could allege problems with
resident abuse, treatment of pressure sores, and proper feeding and
hydration. In the course of complaint investigations, the state survey
agency can either substantiate or not substantiate the specific
allegations or discover other, unreported violations of federal
standards (see table 1). A substantiated complaint, however, does not
necessarily mean that the state survey agency found neglect of the
resident who was the subject of the complaint but rather may indicate
other, unrelated care problems. If the state survey agency finds a
current violation of a federal standard during a complaint
investigation--even if the violation does not relate to the specific
allegations being investigated or the residents who are the subject of
the complaint--it is required to cite a deficiency against the home. If
a complaint investigation reveals no current violation of federal
standards but determines that an egregious violation of federal
standards occurred in the past that was not identified during earlier
surveys, a deficiency known as past noncompliance should be cited and a
civil monetary penalty imposed. CMS does not define egregious but
indicates that it includes noncompliance related to a resident's death.
Table 1: Possible Outcomes of State Survey Agency Complaint
Investigations:
Complaint outcome: Substantiated: Deficiency;
Basis of outcome: The investigation revealed a current violation of
federal standards and resulted in the citation of one or more
deficiencies.[A] The deficient practice had not been identified and
corrected by the home prior to the investigation.
Complaint outcome: Substantiated: Past noncompliance;
Basis of outcome: If the investigation revealed a past egregious
violation of federal standards, such as causing the death of a
resident, but identified no current violation, the home should be
cited for past noncompliance and assessed a civil monetary penalty.[B].
Complaint outcome: Substantiated: No deficiency;
Basis of outcome: The investigation revealed a nonegregious past
violation of federal standards but the home had a quality assurance
program in place that identified the deficient practice, took
appropriate corrective action prior to the investigation, and
implemented measures that prevented a recurrence.
Complaint outcome: Not substantiated: No deficiency;
Basis of outcome: The investigation identified no violation of federal
standards.
Source: CMS.
[A] When a home does not participate in Medicare or Medicaid, the state
may cite deficiencies under its state licensing regulations.
[B] CMS does not define egregious but notes that it includes situations
that caused the death of a resident.
[End of table]
Deficiency Reporting:
Quality-of-care deficiencies identified during either standard surveys
or complaint investigations are classified in 1 of 12 categories
according to their scope (i.e., the number of residents potentially or
actually affected) and their severity. An A-level deficiency is the
least serious and is isolated in scope, while an L-level deficiency is
the most serious and is considered to be widespread in the nursing home
(see table 2). States are required to enter information about surveys
and complaint investigations, including the scope and severity of
deficiencies identified, in CMS's OSCAR database. Since 1998, such
information has been available to the public through CMS's Nursing Home
Compare Web site.
Table 2: Scope and Severity of Deficiencies Identified during Nursing
Home Surveys:
Severity: Immediate jeopardy[B];
Scope[A]: Isolated: J;
Scope[A]: Pattern: K;
Scope[A]: Widespread: L.
Severity: Actual harm;
Scope[A]: Isolated: G;
Scope[A]: Pattern: H;
Scope[A]: Widespread: I.
Severity: Potential for more than minimal harm;
Scope[A]: Isolated: D;
Scope[A]: Pattern: E;
Scope[A]: Widespread: F.
Severity: Potential for minimal harm[C];
Scope[A]: Isolated: A;
Scope[A]: Pattern: B;
Scope[A]: Widespread: C.
Source: CMS.
[A] CMS defines the scope levels as follows: isolated--affecting a
single or a very limited number of residents; pattern--affecting more
than a very limited number of residents; and widespread--affecting a
large portion of or all residents.
[B] Actual or potential for death/serious injury.
[C] Nursing home is considered to be in "substantial compliance."
[End of table]
CMS Oversight:
CMS is responsible for overseeing each state survey agency's
performance in ensuring nursing homes' compliance with federal
standards for quality of care. Its primary oversight tools are
statutorily required federal monitoring surveys conducted annually in
at least 5 percent of Medicare and Medicaid nursing homes surveyed by
each state, on-site annual state performance reviews instituted during
fiscal year 2001, and analysis of periodic oversight reports that have
been produced since 2000. Federal monitoring surveys can be either
comparative or observational. A comparative survey involves a federal
survey team conducting a complete, independent survey of a home within
2 months of the completion of a state's survey in order to compare and
contrast the findings. In an observational survey, one or more federal
surveyors accompany a state survey team to a nursing home to observe
the team's performance. Roughly 81 percent of federal surveys conducted
in fiscal year 2003 were observational. State performance reviews,
implemented in October 2000, measure state performance against seven
standards, including statutory requirements on survey frequency,
requirements for documenting deficiencies, timeliness of complaint
investigations, and timely and accurate entry of deficiencies into
OSCAR. These reviews replaced state self-reporting of their compliance
with federal requirements. In October 2000, CMS also began to produce
19 periodic reports to monitor both state and regional office
performance. The reports are based on OSCAR and other CMS databases.
Examples of reports that track state activities include pending nursing
home terminations (weekly); data entry timeliness (quarterly); tallies
of state surveys that find homes deficiency-free (semiannually); and
analyses, by state, of the most frequently cited deficiencies
(annually). These reports, in a standard format, enable comparisons
within and across states and regions and are intended to help identify
problems and the need for intervention. Certain reports--such as the
timeliness of state survey activities--are used to monitor compliance
with state performance standards.
The Arkansas Law:
In July 1999, Arkansas enacted a law requiring nursing homes to
immediately report the deaths of residents to the local coroner,
regardless of the cause of death.[Footnote 8] The law included a
similar reporting requirement for a hospital when a resident died
within 5 days after transferring from a nursing home. Coroners who find
reasonable cause to suspect that the death is due to maltreatment are
directed to report their findings to the state Department of Human
Services and to law enforcement and the appropriate prosecuting
attorney.[Footnote 9] The statute leaves the scope of the investigation
up to each coroner.
Like most states, Arkansas already required unnatural deaths to be
reported to the coroner for investigation before enactment of the 1999
law.[Footnote 10] According to a coroner who was instrumental in
demonstrating the need for the legislation, nursing home administrators
chose to release decedents to funeral homes despite the existing
requirement for a coroner investigation of deaths that occurred under
suspicious circumstances. From 1994 to 1998, this coroner's office
conducted six exhumations of nursing home residents and, after full
postmortem examinations, all six were determined to have died unnatural
deaths. Two cases were ruled medication errors and four were deaths
caused by suffocation. For example, one resident was found to have
suffocated while tied to his nursing home bed, but the home never
reported the death to the coroner.
Coroner Referrals of Suspected Resident Neglect:
The Arkansas state survey agency, an entity within the Department of
Human Services, and the MFCU, an organization within Arkansas's Office
of the Attorney General, receive and investigate coroner referrals.
Referrals also may be sent to a local city or county prosecutor.
The Arkansas state survey agency treats referrals of suspected neglect
of nursing home residents as complaints. As with other complaints, they
are prioritized for investigation on the basis of the seriousness of
the allegations. Arkansas, like other states, has additional categories
with longer investigation time frames (45 days and next survey) for
complaints judged to be less serious than immediate jeopardy (2 working
days) and actual harm (10 working days). Complaint allegations are
entered on an intake form that also includes the source of the
complaint and eventually the outcome of the investigation. To document
their actions, Arkansas surveyors generally prepare a one-to two-page
summary specifically describing how the complaint was investigated and
which specific allegations were or were not substantiated. Typically,
the individual who filed the complaint is informed about the results of
the complaint investigation. The Arkansas state survey agency uses a
computerized system to track the status of complaint investigations.
In Arkansas, the MFCU's authority to investigate resident abuse and
neglect is limited to nursing homes that receive Medicaid
reimbursement; therefore, it cannot investigate such allegations in a
nursing home that only participates in Medicare or that only accepts
private pay patients. Generally, MFCUs have concurrent jurisdiction
with local investigative and prosecutorial authorities and can both
investigate and prosecute such cases statewide.[Footnote 11] On the
basis of an investigation, a MFCU can initiate criminal actions in
state court but must first obtain permission from the local prosecutor.
In such cases, the focus is not on whether a home is providing
appropriate care but rather on whether the MFCU can substantiate in
court that an act of neglect occurred. These cases may be settled out
of court by a payment to the state's Medicaid program without an
admission of guilt.
Coroner Referrals of Suspected Neglect, While Few in Number, Indicated
Serious Care Problems:
Of the approximately 4,000 nursing home deaths investigated by the
Pulaski County coroner from July 1999 through December 2003, the
coroner informed us that he identified and referred 86 cases (2.2
percent) of suspected resident neglect to the state survey agency and
the MFCU.[Footnote 12] Even when measured against the number of
complaints filed against nursing homes and abuse and neglect case
referrals to the MFCU, the number of coroner referrals was very small.
However, the coroner's referrals, many accompanied by photos, often
depicted signs of serious, avoidable care problems.
According to the Pulaski County coroner, his staff generally arrives at
the nursing home or hospital within 15 to 20 minutes after the
notification, which is expected to be immediate, of a resident's
death.[Footnote 13] Facilities have been instructed not to disturb the
resident's body. The initial on-site investigation consists of (1) a
physical examination of the body, which is photographed; (2) interviews
with the treating physician, staff, and perhaps family members; and (3)
a review of the decedent's medical records, including a comparison of
doctors' prescriptions and nurses' notes to ensure that medications
were properly administered. During the investigation, the coroner's
staff looks for several key indicators of whether a decedent may have
received poor care, including significant weight loss; dehydration;
pressure sores; undocumented injuries, such as bruises or skin tears;
and interviews with family members. Many of these care indicators are
similar to those examined during the state survey agency's annual
inspection of every nursing home. Before releasing the body to a
funeral home, the coroner may order a toxicology report or ask the
state medical examiner to conduct an autopsy to determine whether care
problems, such as a medication error or blood poisoning (sepsis) from
infected pressure sores, contributed to the resident's death. Of the 86
residents referred by the coroner to the state survey agency and the
MFCU, 14 had autopsies completed.
Pressure sores, typically serious and often numerous, were the
predominant indication of care problems identified in 67 percent of the
coroner's referrals (see fig. 1).[Footnote 14] Pressure sores are
caused by unrelieved pressure on the skin that squeezes the tiny blood
vessels supplying the skin with nutrients and oxygen, causing the skin
and ultimately, underlying tissue to die. Most pressure sores can be
prevented with adequate nutrition, sanitation and frequent
repositioning of the resident.[Footnote 15] In some of the coroner's
photos, bone or ligament was visible, as were signs of infection or
dead tissue, indicating a serious stage IV pressure sore (see table 3).
Figure 1: Predominant Care Problems Identified in Pulaski County
Coroner Referrals to State Survey Agency and the MFCU, July 1999
through December 2003:
[See PDF for image]
Note: Although the referrals sometimes identified multiple care
problems, we attempted to identify the primary cause for each of the
coroner's 86 referrals.
[A] Skin tears and multiple bruises are serious and painful injuries
for older individuals and should not be considered in the same context
as cuts and bruises sustained by healthy and younger adults. A skin
tear is a traumatic wound occurring principally on the extremities of
older adults as a result of friction alone or shearing and friction
forces that separate the top layer of skin from the underlying layer or
both layers from the underlying structure. A skin tear is a painful but
preventable injury. See Sharon Baronski, "Skin Tears: Staying on Guard
Against the Enemy of Frail Skin," Nursing 2000, vol. 30, no. 9 (2000).
[B] Care problems categorized as "other" included possible medication
errors (3 decedents), a catheter problem (1 decedent), a resident with
poor oral hygiene (1 decedent), a resident setting himself on fire (1
decedent), a home's failure to resuscitate a resident (1 decedent), a
resident choking on food (1 decedent), a home's staff taking actions
not approved by a physician (1 decedent), malnourishment (1 decedent),
a family telling the coroner of poor care (1 decedent), a resident
having difficulty breathing (1 decedent), and a resident suffering from
a gangrenous colon (1 decedent).
[End of figure]
Table 3: Description of Pressure Sore Stages:
Stage I;
Description: Skin is not broken but is red or discolored and does not
return to normal within 30 minutes after pressure is removed.
Stage II;
Description: The topmost layer of the skin is broken, creating a
shallow open sore; there may be drainage.
Stage III;
Description: The break in the skin extends through the second skin
layer into the tissue below the skin. The wound is deeper than in stage
II.
Stage IV;
Description: The tissue breakdown extends into the muscle and
can extend as far as the bone. Typically, there is considerable dead
tissue and drainage. Stage IV may be life-threatening.
Source: University of Washington, Spinal Cord Injury Pamphlet, "Taking
Care of Pressure Sores."
[End of table]
Other indications of care problems identified by the coroner included
bruises, abrasions, and skin tears (12 percent) and falls or broken
bones (6 percent). For one referral, the bruise covered the decedent's
entire upper chest and for another the arm from the elbow to the
shoulder. In about 15 percent of referrals, the indications of care
problems identified by the coroner were difficult to categorize, such
as a decedent with a catheter whose penis was bloody and irritated, a
resident who died when he attempted to burn off his restraints with a
cigarette lighter, and a resident who was taken to the hospital with
breathing problems. An autopsy of the last resident revealed the
presence of toxic or excessive levels of drugs that likely caused the
respiratory problems and contributed to the development of pneumonia
and to death.
For some referrals, the coroner found evidence of multiple care
problems. For example, a 1999 referral involved a decedent with a 9-
square inch pressure sore on her lower back, a gangrenous foot, and
ants on her feeding tube and wounds. According to the resident's
daughter, the odor in her mother's room at the nursing home was so
great that she had to leave. The autopsy attributed the gangrene to
arteriosclerosis that restricted the blood supply to her legs but also
found that the resident suffocated when dried mucus that had
accumulated in her mouth broke off and blocked her breathing passage.
According to the MFCU, her wounds and oral care appeared to have been
neglected for some time.
The 86 cases of suspected resident neglect occurred in 27 nursing
homes.[Footnote 16] Although it is difficult to precisely identify the
proportion of Pulaski County nursing homes that had referrals because
facilities closed and opened during the time period we examined, over
half of the 27 homes had three or more referrals (see fig. 2). Fourteen
homes accounted for almost 80 percent of the referrals. Some homes had
a pattern of referrals spanning several years. For example, one home
had seven referrals--one in 1999, two in 2000, two in 2001, and another
two in 2002. Three of these seven referrals involved stage IV pressure
sores, some of which were blackened with dead tissue, and one referral
involved a resident who died because of an overdose of drugs
administered by the nursing home. Nineteen of the 27 nursing homes were
referred by the Pulaski County coroner, many of them more than once,
because the deceased residents had pressure sores (see app. I). Eleven
of the 12 referrals for one home involved pressure sores.[Footnote 17]
The standard surveys of these homes, however, infrequently raised
concerns about the care provided to prevent and treat pressure sores.
As of November 2003, 15 of the 19 homes had not been cited on any of
the previous four standard surveys for a pressure sore deficiency at
the actual harm level or higher, while 3 homes each had one such
deficiency.[Footnote 18]
Figure 2: Number of Pulaski County Coroner Referrals of Suspected
Neglect, by Nursing Home, July 1999 through December 2003:
[See PDF for image]
[End of figure]
The State Survey Agency's Investigation of Coroner Referrals Often
Understated Neglect of Residents:
According to Arkansas state survey agency officials, the agency
received 36 coroner referrals of suspected resident neglect, less than
half of the 86 referrals the coroner said he made. The agency's
investigations of these coroner referrals often understated serious
care problems--both when neglect was substantiated and not
substantiated (see app. II). Even in the majority of substantiated
referrals, the state survey agency failed to cite serious deficiencies
involving care problems for the decedents who were the subject of the
referrals, in effect not confirming the predominant care problems
identified by the coroner. The MFCU's investigations of many of these
same referrals, however, frequently found that facilities had been
negligent in caring for the decedents by identifying serious lapses in
care. In half of the referrals not substantiated by the state survey
agency, either the MFCU investigation found neglect or we questioned
the basis for the "not substantiated" findings, and our concerns were
confirmed by a professor of nursing with expertise in long-term care.
Moreover, the MFCU found inconsistencies in the medical records for
some decedents, raising a question about the state survey agency's
conclusion that the same records indicated care had been provided.
Fewer than Half of the Coroner Referrals Were Received by the State
Survey Agency:
Although the Pulaski County coroner told us that he had referred 86
cases of suspected resident neglect from July 1999 through December
2003, Arkansas state survey agency officials said that they received
fewer than half (see table 4) and investigated all but one of the
referrals they received.[Footnote 19] MFCU officials, however,
indicated that they received almost three-fifths of the 86
referrals.[Footnote 20] The MFCU received all but three of the
referrals received by the state survey agency. Overall, 32 coroner
referrals were not investigated by either agency.[Footnote 21]
Table 4: Pulaski County Coroner Referrals Received by State Survey
Agency and MFCU, July 1999 through December 2003:
Year of resident's death: 1999[A];
Number of referrals: 20;
Received by state survey agency: 4;
Received by MFCU: 2.
Year of resident's death: 2000;
Number of referrals: 24;
Received by state survey agency: 17[B];
Received by MFCU: 22.
Year of resident's death: 2001;
Number of referrals: 23;
Received by state survey agency: 11;
Received by MFCU: 17.
Year of resident's death: 2002;
Number of referrals: 18;
Received by state survey agency: 3;
Received by MFCU: 9.
Year of resident's death: 2003[C];
Number of referrals: 1;
Received by state survey agency: 1;
Received by MFCU: 1.
Year of resident's death: Total;
Number of referrals: 86;
Received by state survey agency: 36[B];
Received by MFCU: 51[D].
Source: Coroner's office, Pulaski County; Arkansas state survey agency;
and the MFCU.
[A] The Arkansas law became effective in July 1999 and the state survey
agency received its first referral on September 27, 1999.
[B] Although the state survey agency lacked routine documentation
describing its investigation of two coroner referrals, we included
these referrals in our analysis because agency officials were able to
tell us the outcome of the investigations. However, we excluded three
other coroner referrals that survey agency officials told us they had
received but for which they could neither document their investigations
nor tell us the outcomes.
[C] The coroner eventually referred six 2003 resident deaths to the
state survey agency and the MFCU. We excluded five of the six because
they were not actually referred until early 2004.
[D] The MFCU received all but 3 of the 36 referrals received by the
state survey agency.
[End of table]
According to the coroner, all the referrals were hand delivered rather
than mailed to ensure that none were lost, but officials at the state
survey agency and the MFCU told us that they did not know how referrals
were delivered.[Footnote 22] We found inconsistencies in agency and
MFCU recordkeeping. For example, the state survey agency told us that
it had received five referrals on the coroner's list but could not
provide a copy of any complaint intake forms for them or the results of
its investigations for three of the five referrals. While a MFCU
official told us that three other referrals were forwarded to it by the
state survey agency, not the coroner, the state survey agency had no
record of these referrals.
The 50 coroner referrals not received by the state survey agency were
similar to those received. For example, one decedent had large,
unexplained bruises on her chest, upper right arm, and back, including
a mass of more than nine square inches that likely consisted of clotted
blood from a broken blood vessel. A second decedent had five pressure
sores--lower leg, heel, lower back, and both hips; according to the
coroner's report, one of the pressure sores was "draining a dark-
colored, pus-filled, and foul-smelling fluid." The decedent's medical
records indicated admission to the nursing home 6 months before death
without any pressure sores. A third decedent had 10 pressure sores with
dead tissue on one heel. A fourth decedent had a large tear on the
upper arm, a pressure sore on one foot with dead tissue extending to
mid-calf, and a stage IV pressure sore on one buttock. Three coroner
referrals not received by the state survey agency but investigated by
the MFCU found negligent care that resulted in settlements and payments
by the facilities.
Serious Deficiencies Seldom Cited for Care Problems Involving
Decedents, Even Though Referrals Were Often Substantiated:
With the exception of one home, we found that state survey agency
complaint investigations of coroner referrals often failed to cite
serious deficiencies for the decedents being investigated, even though
over half of the referrals investigated were substantiated. Overall,
the state survey agency substantiated 22 of the 36 coroner referrals it
investigated at 12 nursing homes.[Footnote 23] However, the state
survey agency cited actual harm or higher-level deficiencies in quality
of care, abuse/neglect, or both for only 11 of these 22 substantiated
referrals (see table 5).
Table 5: Extent to which the State Survey Agency Cited Serious
Deficiencies for Substantiated Referrals from the Pulaski County
Coroner:
Nursing home: A;
Number of referrals substantiated: 7;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
Deficiency cited: 6 decedents;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 1 decedent.
Nursing home: C;
Number of referrals substantiated: 2;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 2 decedents.
Nursing home: E;
Number of referrals substantiated: 2[A];
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
Deficiency cited: 1 decedent;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 1 decedent.
Nursing home: I;
Number of referrals substantiated: 2[A];
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
Deficiency cited: 1 decedent;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 1 decedent.
Nursing home: L;
Number of referrals substantiated: 2;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 2 decedents.
Nursing home: B;
Number of referrals substantiated: 1;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 1 decedent.
Nursing home: D;
Number of referrals substantiated: 1[A];
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 1 decedent.
Nursing home: N;
Number of referrals substantiated: 1;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
Deficiency cited: 1 decedent.
Nursing home: Q;
Number of referrals substantiated: 1;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
Deficiency cited: 1 decedent[B].
Nursing home: T;
Number of referrals substantiated: 1;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 1 decedent.
Nursing home: X;
Number of referrals substantiated: 1;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 1 decedent.
Nursing home: AA;
Number of referrals substantiated: 1;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
Deficiency cited: 1 decedent.
Nursing home: Total;
Number of referrals substantiated: 22;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
Deficiency cited: 11;
Deficiencies cited for coroner referred decedents at actual harm or
higher level in quality of care and/or abuse/neglect:
No deficiency cited: 11.
Source: Arkansas state survey agency complaint investigation reports.
Note: Of the 22 substantiated referrals for residents who died at these
homes, 18 were referred for pressure sores, two for bruising, one for a
fall, and one for catheter problems.
[A] One referral was substantiated without any deficiencies. Even
though the investigation revealed a past violation of federal
standards, no deficiencies were cited because the home had a quality
assurance program in place that identified the deficient practice, took
appropriate corrective action prior to the investigation, and
implemented measures that prevented a recurrence.
[B] Past noncompliance was cited for pressure sores at the immediate
jeopardy level. Past noncompliance may be cited when no current
violation of federal standards is found but the past violation was so
egregious that the home should be cited for a deficiency and a civil
monetary penalty imposed.
[End of table]
Nursing home A accounted for 6 of 11 citations for neglect of decedents
at the actual harm or higher level (see table 5). The neglect involved
inadequate care to prevent and treat pressure sores. The home was
terminated from participation in Medicare and Medicaid in November
2000, about 5 months after the first of a series of state survey agency
complaint investigations initiated as a result of coroner
referrals.[Footnote 24] Although the agency found that six of the
coroner-referred decedents had been neglected by home A, the results of
this home's March 2000 standard survey and the timing and results of
some complaint investigations prior to its closure were inconsistent
with those findings. We identified the following inconsistencies in
surveys of this home:
* The home's March 3, 2000, standard survey found no deficiencies other
than a C-level deficiency (potential for minimal harm) for inadequate
housekeeping and maintenance, including a water-damaged ceiling tile,
soiled carpeting, and worn upholstery on a sofa. The survey's resident
sample, however, included a resident who died in mid-April, less than 6
weeks after the standard survey, with five stage IV pressure sores.
* Even though the photos accompanying coroner referrals for four
decedents suggested serious, systemic care problems, the state survey
agency did not initiate a complaint investigation until May 16, 2000,
about 3 weeks after receiving the referrals, which were all sent at the
same time.[Footnote 25] CMS guidance requires that such complaints be
investigated within 2 to 10 days, but state survey agency officials
told us that they often gave a higher priority to investigating serious
complaints for living residents. The state survey agency cited actual
harm deficiencies for quality of care for three of the four decedents
because similar care problems were found for current residents at the
facility.
* The May 16 investigation, however, included March 27 and April 3
complaints from family members of one resident alleging that he (1) had
deteriorating, unbandaged pressure sores and (2) was left wet and
soiled for long periods, a situation that could have contributed to
worsening pressure sores.[Footnote 26] These allegations went
uninvestigated for almost 2 months until they were confirmed in May.
Investigation of a subsequent July complaint for this resident
documented further deterioration of the pressure sores that began on
his buttocks and extended all the way up his back.
* Although this same resident was included in the sample of a
subsequent September 2000 complaint investigation, his continuing
pressure sores were not cited during that investigation. A final
complaint investigation at the home about 6 weeks later--following the
resident's death--found that he had 28 pressure sores when he died; 7
of the pressures sores, 2 of which were stage IV, did not have a
physician's order for treatment.
Only five of the referrals for decedents at other homes resulted in the
citation of a deficiency at the actual harm or higher level for the
decedent in question (see table 5). The deficiencies cited involved
quality of care or abuse/neglect for four of the five decedents. For
one of the five decedents, who had numerous, serious pressure sores, no
current violations of federal standards were identified during the
investigation of the coroner's referral. Under CMS guidance, surveyors
would need to identify a current resident with inadequate treatment to
prevent and heal pressure sores in order to cite a pressure sore
deficiency at the actual harm level. However, the surveyor determined
that an egregious past violation of federal standards involving this
decedent warranted citing a deficiency known as past noncompliance and
imposition of a civil monetary penalty.[Footnote 27] Because the
deficiency occurred in the past and was assumed to have been corrected
by the facility, a plan of correction was not required and no
deficiency could be cited for the underlying care issue--inadequate
treatment to prevent and heal pressure sores.[Footnote 28] Although
Arkansas state survey agency officials told us that they frequently
cite past noncompliance, we found that it was cited for only one
coroner referral.[Footnote 29]
For the remaining 11 substantiated coroner referrals, the state survey
agency cited either no deficiency for the decedent or cited a
deficiency at a level lower than actual harm for the predominant care
problem identified by the coroner, even though the MFCU's
investigations found neglect for six of the decedents, in effect
substantiating the existence of serious care problems in these cases
(see table 6). The MFCU's findings raise a question about the
thoroughness of state survey agency complaint surveys. Because the
nature of the problems identified by the coroner in these 11 referrals
did not appear to differ significantly from referrals for home A that
were substantiated at the actual harm or higher level (see table 5), we
asked the state survey agency to review the 11 referrals to determine
why no serious deficiencies were cited and if past noncompliance should
have been cited. Noting their current heavy workload, state survey
agency officials agreed to review 2 of the 11 cases. They told us that
they could not cite an actual harm pressure sore deficiency for either
decedent because the decedents were not in the facility at the time of
the complaint investigations and under CMS guidance, surveyors would
need to identify a current resident with inadequate treatment to
prevent and heal pressure sores in order to cite a pressure sore
deficiency at the actual harm level. In one of these cases, however,
agency officials told us that they should have cited past noncompliance
because of the serious nature of the decedent's condition.
Table 6: Six Coroner Referrals Where the MFCU Found Negligence by the
Nursing Home but the State Survey Agency either Cited No Deficiency or
a Deficiency at Less than Actual Harm for the Decedent:
Home: B;
Resident: Resident 59;
Problems identified by coroner: Numerous pressure sores;
ulcers on the roof of decedent's mouth;
leaking feeding tube;
Results of investigation: State survey agency: No deficiency was cited
for this decedent, but a deficiency for pressure sores was cited at the
D level for another resident;
Results of investigation: MFCU: Negligence found and fraud case is
pending.
Home: E;
Resident: Resident 5;
Problems identified by coroner: Numerous pressure sores;
dirty unchanged bandages;
ulcer on the roof of decedent's mouth;
resident and medical equipment covered with live ants;
foot and ankle in advanced stages of decomposition;
Results of investigation: State survey agency: No deficiency was cited
for this decedent;
Results of investigation: MFCU: Inadequate care found, leading to a
$30,000 settlement agreement with the home.[A].
Home: I;
Resident: Resident 40;
Problems identified by coroner: Numerous pressure sores;
ulcers on the roof of decedent's mouth;
Results of investigation: State survey agency: No deficiencies cited
for this decedent;
Results of investigation: MFCU: "Absence of care" found and fraud case
is pending.
Home: L;
Resident: Resident 25;
Problems identified by coroner: Pressure sores and skin discoloration;
Results of investigation: State survey agency: Cited the home for a B-
level deficiency for this resident due to incomplete records. (It also
cited pressure sores at the immediate jeopardy level but not for this
decedent);
Results of investigation: MFCU: Included among 42 residents of a chain
of nursing homes whose care the MFCU found negligent, leading to a $1.5
million settlement with the owners.[A].
Home: L;
Resident: Resident 52;
Problems identified by coroner: Numerous pressure sores and skin tears;
Results of investigation: State survey agency: Cited the home for two
B-level deficiencies for this decedent, both related to the home's
recordkeeping.[B];
Results of investigation: MFCU: Included among 42 residents of a chain
of nursing homes whose care the MFCU found negligent, leading to a $1.5
million settlement with the owners.[A].
Home: T;
Resident: Resident 48;
Problems identified by coroner: Bruises on face and head, possibly due
to falls;
family told coroner that the home did not monitor resident properly to
avoid falls;
Results of investigation: State survey agency: Cited the home for two
E-level violations for this decedent--one for improper use of
restraints and one for accident prevention;
Results of investigation: MFCU: Found evidence of neglect, but MFCU
cited insufficient resources as the reason for not pursuing the case.
Source: GAO analysis of Pulaski County coroner referrals and Arkansas
state survey agency and MFCU investigative reports.
[A] As of January 2004, 12 coroner referrals were included in MFCU
settlements totaling $1,767,000 with five nursing homes. Some of the
settlements, however, involved residents who were not referred by the
Pulaski County coroner. For example, the largest settlement for $1.5
million involved 42 residents, 2 of whom were referred by the coroner.
[B] The state survey agency noted that this home had been cited for
immediate jeopardy for pressure sores during a survey conducted about 5
weeks before this decedent's death. Although the decedent was a
resident of the home during the earlier survey, she was not included in
the sample of residents reviewed at that time.
[End of table]
State Survey Agency Decision Not to Substantiate Some Coroner Referrals
Was Questionable:
On the basis of the MFCU's investigations and our own review, we
question the state survey agency's decision not to substantiate more of
the coroner's referrals or forward them to another agency for further
investigation. Overall, the state survey agency did not substantiate 14
of the 36 coroner referrals that it investigated.[Footnote 30] Although
we did not assess each of the 14 unsubstantiated referrals in detail,
the state survey agency's findings for 7 decedents were challenged
either by the results of the MFCU's investigations or by an expert
review conducted at our request. Both the MFCU and our expert noted
omissions and contradictions in the medical records of some of the 14
decedents, raising a question about the state survey agency's
conclusions that the same records indicated care had been provided.
The MFCU's investigations identified neglect of two decedents that the
state survey agency failed to substantiate.[Footnote 31] In one of the
cases, the MFCU found that the nursing home failed to (1) accurately
assess changes in the resident's status, allowing the resident to
develop stage II pressure sores before the staff was even aware that he
had a skin problem; (2) track the resident's ability to perform certain
basic activities of daily living; (3) routinely monitor his weight
despite continued weight loss; and (4) follow physician orders,
sometimes delaying prescribed treatment. In the other case, the MFCU
found that the nursing home failed to provide necessary treatment,
rehabilitation, care, food, and medical services. In particular, the
resident had no skin breakdown upon admission to the facility. But 7.5
months later, she had six pressure sores, including one on her right
hip that was almost 4 inches across and had progressed to stage IV and
two others that had progressed to stage III. There was no comprehensive
care plan to address the resident's pressure sores. Other care was also
found negligent. For example, during a hospital stay about 2 months
before the resident's death, the hospital found a large area on the
back of her tongue with a thick buildup of saliva that had not been
properly cleaned at the nursing home for up to 7 days.
For five other coroner referrals not substantiated by the state survey
agency, the expert agreed that we had a basis to question the state
survey agency's findings.[Footnote 32] For example, the expert found
that (1) some facilities were not removing the dead tissue around
pressure sores; (2) the color of one decedent's skin suggested it was
urine stained, a situation that contributes to skin breakdown and
infection; and (3) two decedents were not receiving oral care, the lack
of which the expert characterized as "profound" for one decedent. For
three of the five cases, the expert found evidence that neglect
contributed to the residents' physical condition as documented in the
coroner's referrals. In general, the expert found the degree of skin
damage and pressures sores in the reviewed cases to be "very
suspicious" and concluded that preventive measures, such as special
mattresses, would have precluded the development of such severe
pressure sores, despite the decedents' health status. The expert also
found the scarce and inconsistent mention of pain assessment and
management to be suspicious enough to warrant concern about
abuse.[Footnote 33] Although three of the five deceased residents were
receiving hospice care at the nursing home, our expert questioned the
apparent lack of care for these residents. Ideally, hospice care
provides consistent pain assessment and intervention, measures to
prevent further skin breakdown and the associated discomfort, and local
treatment to minimize odor. These standards are inconsistent with not
changing pressure sore dressings, even if a family member asks not to
have them changed. Finally, our expert questioned if some of the
facilities had a quality assurance process in place to identify
systemic problems, such as the incidence of pressure sores. We found
that the state survey agency had cited the facility where two of the
five decedents had resided for immediate jeopardy regarding the federal
requirements to maintain a quality assurance committee that meets
regularly. This deficiency was cited about 9 months before and 9 months
after the residents' deaths.
In two of the five cases, the state survey agency had concluded that
serious pressure sores were acquired during hospitalizations but did
not identify other care problems noted by our expert consultant. For
example, one of the nursing homes failed to remove dead tissue around
the pressure sores, an indication of poor care. In addition, the expert
noted the lack of oral care for one of these decedents, again raising
questions about the quality of care provided by the home. Even if the
state survey agency had justifiably concluded that the decedents'
serious pressure sores were acquired during hospitalizations rather
than in the nursing homes where the residents died, neither case was
referred to Arkansas's Division of Health Facility Services, the entity
responsible for oversight of hospitals that serve Medicare and Medicaid
beneficiaries. State survey agency officials agreed that it might have
been appropriate to refer such cases to this division. CMS's 1999
guidelines for complaint investigations instruct state survey agencies
to refer cases to another agency when it lacks jurisdiction.
Omissions and contradictions in the medical records for four other
decedents whose referrals were not substantiated raise a question about
the state survey agency's conclusions that these same records indicated
care had been provided. For example, in two cases, the MFCU found
numerous omissions in the facility's care and treatment records, such
as missing entries on the medication records and nurse assistant flow
sheets, as well as a discrepancy as to when a pressure sore was first
noted. In another case, the MFCU concluded that there were so many
documentation problems that it was difficult to follow the course of
one decedent's care, including late entries that were "questionable and
too many." In addition, in another case, our expert consultant found
that the seriousness of a pressure sore was understated by the home.
Federal surveyors also found evidence that state surveyors missed or
failed to cite deficiencies, including some that harmed residents. A
March 2000 federal comparative survey of an Arkansas nursing home, some
of whose residents were the subject of coroner referrals, found care
issues that had not been identified by the state survey
agency.[Footnote 34] A comparative survey is conducted within 2 months
of a state survey to independently verify its accuracy. Overall,
federal surveyors cited 19 health-related deficiencies that state
surveyors did not, including failure of the nursing home to develop and
implement effective procedures to prevent neglect and abuse of
residents. Three of the 19 deficiencies that state surveyors did not
identify were cited by federal surveyors at the actual harm level:
failure to provide (1) necessary care and services to maintain a
resident's highest well being; (2) good nutrition, grooming, and
personal and oral hygiene; and (3) treatment and services to increase
and prevent further degradation in a resident's range of motion.
Federal surveyors also cited a widespread failure in infection control
procedures at the potential for more than minimum harm level. One of
the coroner-referred deaths at this facility occurred within 6 weeks of
both the state and federal surveys that were about 1 month apart. The
decedent arrived in the hospital emergency room with a fever of 104°,
an indication of infection, as well as ragged tears on his right knee
and shin and serious pressure sores on both buttocks. Though
documentation was not available, a state survey agency official told us
that this complaint was unsubstantiated.
Resident Neglect May Go Undetected Because of Well-Documented Oversight
Weaknesses:
Because of oversight weaknesses that are well-documented nationwide,
neglect of nursing home residents may often go undetected. We found the
same systemic oversight weaknesses in the Arkansas state survey
agency's investigation of coroner referrals that our prior work on
nursing home quality of care identified nationwide. These oversight
weaknesses include (1) complaint investigations that understated the
seriousness of the allegations and were not conducted promptly; (2)
annual standard survey schedules that allowed nursing homes to predict
when the next survey would occur; (3) survey methodology weaknesses,
coupled with surveyor reliance on misleading medical records, that
resulted in overlooked care problems; and (4) a policy that did not
always hold nursing homes accountable for care problems identified
after a resident's death.
Serious Complaints Were Inappropriately Prioritized and Not Promptly
Investigated:
In 1999, we reported that many survey agencies in the 14 states we
examined often assigned inappropriately low investigation priorities to
complaints and failed to investigate serious complaints
promptly.[Footnote 35] Such practices may delay the identification and
correction of care problems that may involve other residents of a
nursing home in addition to the resident who is the subject of the
complaint. Based on our draft report, CMS reviewed the Arkansas state
survey agency's prioritization of the 36 coroner referrals the agency
said it received. CMS concluded that about 31 percent of the referrals
should have been prioritized for more prompt investigation.[Footnote
36] Furthermore, CMS found that 5 referrals prioritized by the state as
requiring an investigation within 10 working days suggested the
potential for immediate jeopardy and should have been prioritized for
investigation within 2 working days.[Footnote 37] The state survey
agency prioritized 6 other referrals as not requiring investigation for
up to 45 days, but CMS indicated that 1 of these referrals should have
been prioritized for investigation within 2 days, and the remaining
referrals within 10 working days (actual harm).[Footnote 38]
Although the state survey agency classified most of the 36 referrals as
requiring investigation within 10 working days, we found a significant
disparity between the prioritization it assigned and the time it
actually took to conduct the investigations. As shown in figure 3, 16
referrals were investigated in 10 working days or less and 19 referrals
took between 11 and 290 working days to investigate.[Footnote 39]
Identifying time frames in terms of working days, as CMS's guidance
requires, however, understates the actual elapsed time between receipt
and investigation of referrals. The average elapsed time from the date
the survey agency received a referral until it initiated its
investigation was 46 calendar days. Seven referrals were not
investigated for between 91 and 425 calendar days and the investigation
of an additional 11 referrals took between 21 and 90 calendar days (see
fig. 3). State survey agency officials told us that because of surveyor
turnover and the number of complaints received from all sources, the
agency could not investigate all coroner complaints quickly; CMS has
identified untimely complaint investigations in many other states.
Moreover, Arkansas state survey agency officials told us that they gave
priority to allegations involving residents who were still living in a
facility over comparable allegations involving deceased residents, even
though the coroner's referrals were accompanied by photos that
suggested the possibility of systemic care problems.
Figure 3: Elapsed Working and Calendar Days between Receipt of
Coroner's Referral and Start of Investigation by Arkansas State Survey
Agency:
[See PDF for image]
Note: One of the 36 referrals is excluded from this figure because the
state survey agency was unable to identify the date the referral was
received from the coroner.
[End of figure]
Predictable Surveys Allow Nursing Homes to Conceal Care Problems:
In 1998 and subsequent work, we found that nursing homes could conceal
care problems if they chose to do so because annual state surveys were
often predictable.[Footnote 40] For example, a home could (1)
significantly change its level of care, food, and cleanliness by
temporarily augmenting its staff just prior to or during the period of
the survey and (2) adjust resident records to improve the overall
impression of the home's care. We believe that the striking disparity
between annual survey findings that failed to identify serious problems
in preventing and treating pressure sores and the numerous instances of
serious pressure sores identified by the coroner is partly the result
of the predictability of annual surveys. In July 2003, we reported that
standard surveys in Arkansas, as well as those nationwide, continued to
be highly predictable.
In 2003, we reported that the timing of 36 percent of Arkansas's most
recent surveys (34 percent nationwide) could have been predicted by
nursing homes.[Footnote 41] We considered nursing home surveys
predictable if homes were surveyed within (1) 15 days of the 1-year
anniversary of their prior survey (28 percent for Arkansas) or (2) 1
month of the maximum 15-month interval between standard surveys (8
percent for Arkansas).[Footnote 42] The director of the Arkansas state
survey agency acknowledged that the predictability of the state's
standard surveys allowed homes to mask problems by having more staff on
hand during surveys. On the basis of the finding in our 2003 report,
she told us she has tried to reduce survey predictability, in part by
using computer programs to vary the timing of homes' surveys. For 168
of Arkansas's approximately 236 nursing homes surveyed since our last
report (August 1, 2003, through June 22, 2004), 22.6 percent of the
surveys were predictable.
In 1998, we recommended that CMS segment the standard survey into more
than one review throughout the year, simultaneously increasing state
surveyor presence in nursing homes and decreasing survey
predictability.[Footnote 43] Although CMS disagreed with segmenting the
survey, it did recognize the need to reduce predictability. CMS
directed states in 1999 to (1) begin at least 10 percent of standard
surveys outside the normal workday (either on weekends, early in the
morning, or late in the evening) and (2) avoid scheduling, if possible,
a home's survey for the same month of the year as the home's previous
standard survey. We reported previously that CMS's focus on so-called
staggered surveys, though beneficial, was too limited to reduce survey
predictability.[Footnote 44]
Survey Methodology Weaknesses and Misleading Medical Records Contribute
to Undetected Care Problems:
Our 1998 work on California nursing homes revealed that surveyors may
overlook significant care problems because (1) the federal survey
protocol they follow does not rely on an adequate sample for detecting
potential problems and their prevalence and (2) some resident medical
records omit or contain misleading information.[Footnote 45] Because
CMS has not yet completed the redesign of the survey methodology,
nearly 7 years later Arkansas surveyors, as well as those in other
states, still rely on a flawed survey methodology to detect resident
care problems. As noted earlier, omissions and contradictions in the
decedents' medical records, as well as the coroner's photos, sometimes
raised questions about whether appropriate care had been provided in
cases the state survey agency did not substantiate.
Our 1998 report recommended that CMS revise federal survey procedures
by using a stratified random sample of resident cases and reviewing
sufficient numbers and types of resident cases. Under development since
1998, CMS's redesigned survey methodology is intended to more
systematically target potential problems at a home and give surveyors
new tools to better document care outcomes and conduct on-site
investigations. Use of the new methodology could result in survey
findings that more accurately portray the quality of care provided by a
nursing home to all residents. CMS officials told us that the new
methodology would be piloted in 2005 in conjunction with an evaluation
that compares its effectiveness with that of the current survey
methodology. Our work in Arkansas suggested the existence of sampling
problems, underscoring the importance of implementing the revised
survey methodology. For example, three residents with serious pressure
sores who died on March 7, March 29, and April 3, 2000, and were the
subject of coroner referrals were not included in the resident sample
for one home's March 3, 2000, annual standard survey. The survey failed
to identify any pressure sore or other quality of care deficiencies. It
is difficult to understand how residents with such serious care
problems could have been omitted from the survey. In addition, the
extent of the physical deterioration of some decedents where the MFCU
identified neglect but the state survey agency did not find similar
problems for current residents also raises a question about state
survey agency sampling methodology because the seriousness of
decedents' conditions suggested that care problems were systemic.
In some coroner referrals that the state survey agency did not
substantiate, surveyors noted that the medical records indicated that
care had been provided. However, the MFCU found omissions and
contradictions in decedents' medical records, including missing entries
and late entries that were "too many and questionable." The medical
record for one decedent showed the resident's height as 10 inches
different from the height in her nutritional assessment (height is an
important factor in determining a resident's appropriate weight). Since
surveyors screen residents' medical records for indicators of improper
care, misleading or inaccurate data may result in care deficiencies
being overlooked. We also found evidence that Arkansas surveyors took
medical records at face value even when these records were contradicted
by color photos that documented decedents' physical conditions. For
example, our expert consultant found that the coroner's photos of one
decedent clearly showed that dead tissue around pressure sores had not
been removed even though the state surveyor cited medical records
indicating such care was provided just 11 days before the resident's
death. The coloration of the same decedent's skin also suggested that
she was left in her own waste for extended periods. However, the
surveyor noted that the family's concern about staff's unresponsiveness
to resident call lights was not substantiated because residents who
were interviewed said that staff response was prompt.
Under CMS Policy, Nursing Homes Not Always Held Accountable for Past
Noncompliance:
In our current work, we found that many Arkansas nursing homes with
coroner referrals escaped accountability for providing poor care when
the state survey agency investigated the neglect of nursing home
residents after their deaths. We believe that CMS's vague policy on
past noncompliance is partly responsible for this situation. First, the
Arkansas state survey agency did not always cite past noncompliance
when warranted. For example, the MFCU found that nursing homes had
neglected eight decedents referred by the coroner but the state survey
agency either cited no deficiency for the decedents, cited a deficiency
at a level lower than actual harm for the predominant care problems
identified by the coroner, or found the referrals to be
unsubstantiated. According to state survey agency officials, care
problems similar to those of the decedents were not identified in a
sample of current residents and, under CMS policy, the decedents' care
problems were assumed to have been identified and corrected by the
home. Second, for the one coroner referral that the Arkansas state
survey agency did cite for past noncompliance, the home was not
required to prepare a plan of correction because no current deficiency
was identified. When past noncompliance is identified, it is recorded
in OSCAR and on CMS's Nursing Home Compare Web site simply as past
noncompliance without additional information on the specific deficient
practice(s), such as failure to prevent and treat pressure sores.
Moreover, CMS policy discourages citing past noncompliance unless the
violation is egregious. Although CMS officials indicate that
"egregious" includes noncompliance related to a resident's death, the
term is undefined and is not used in CMS's scope and severity grid,
which defines serious deficiencies as actual harm or immediate
jeopardy.[Footnote 46] According to CMS officials, the objective of its
survey policy is to focus surveys on current residents and care
problems rather than on poor care provided in the past. We question
CMS's assumption that if a decedent's care problem is not found to
affect other residents at the time of a complaint investigation, it was
identified earlier by the home and corrected.[Footnote 47] On the basis
of our past work, it is also possible that the state survey agency's
complaint investigation missed serious care issues. CMS and Arkansas
state survey agency officials agreed that the poor physical condition
of the decedents referred by the coroner suggested the existence of
systemic care problems.
Conclusions:
The Arkansas law requiring coroner investigations of nursing home
residents' deaths has helped to demonstrate that a small number of
residents died in deplorable physical condition. The Arkansas law also
confirmed the systemic weaknesses in state and federal oversight of
nursing home quality of care that we identified in prior reports. On
the basis of our prior work, we believe it is likely that serious care
problems similar to those identified by the Pulaski County coroner
exist in other Arkansas counties and in other states. Despite
Arkansas's annual standard surveys and intervening complaint
investigations, the negligent care provided to some residents before
they died was never detected. In addition, complaint investigations
initiated by the state survey agency in response to coroner referrals
often failed to cite deficiencies for serious care problems that,
according to the MFCU's investigations and our expert consultant,
constituted or suggested neglect. Even when the Arkansas state survey
agency found the neglect to be egregious, it did not hold the nursing
home accountable by citing a little used deficiency known as past
noncompliance.
We believe that CMS's policy on past noncompliance is flawed for three
reasons. First, the policy involves considerable ambiguity. CMS does
not define what constitutes an egregious violation yet implies that one
exists where care problems relate to a resident's death, which is often
difficult to demonstrate without an autopsy. Moreover, the term
egregious is not clearly related to CMS's scope and severity grid,
which defines serious deficiencies as actual harm or immediate
jeopardy. Second, CMS's policy on past noncompliance does not hold
homes accountable for negligence associated with a resident's death
unless similar care problems are identified for current residents. CMS
assumes that (1) similar care problems were not found because they have
already been identified and corrected by the home and (2) the state
survey agency did not miss the deficiency for current residents.
However, our prior work demonstrated, and our work in Arkansas
confirmed, that (1) nursing home records can contain misleading
information or omit important data, making it difficult for surveyors
to identify care deficiencies during their on-site reviews and (2)
states' surveys of nursing homes do not identify all serious
deficiencies, such as preventable weight loss and pressure sores.
Third, the policy obscures the nature of the specific care problem,
such as avoidable pressure sores, because the only deficiency reported
in OSCAR and to the public on CMS's Nursing Home Compare Web site is
"past noncompliance." We believe that the goal of preventing resident
neglect by requiring nursing homes to comply with federal quality
standards is inconsistent with a policy that discourages citing
deficiencies because the harm was simply not egregious enough or was
potentially missed for current residents.
Recommendations for Executive Action:
We recommend that the Administrator of CMS revise the agency's current
policy on citing deficiencies for past noncompliance with federal
quality standards by taking the following two actions:
* hold homes accountable for all past noncompliance resulting in harm
to residents, not just care problems deemed to be egregious, and:
* develop an approach for citing such past noncompliance in a manner
that clearly identifies the specific nature of the care problem both in
the OSCAR database and on CMS's Nursing Home Compare Web site.
Agency and State Comments and Our Evaluation:
We provided a draft of this report to CMS; the Arkansas Department of
Human Services, Office of Long Term Care (the state survey agency); the
Arkansas MFCU; and the Pulaski County coroner. We received written
comments from CMS and the survey agency, and oral comments from the
coroner. The MFCU stated that it did not have comments. CMS concurred
with our recommendations to revise its policy on citing deficiencies
for past noncompliance and also identified more than a dozen additional
initiatives it plans to take to address shortcomings in the nursing
home survey process. CMS commented that the focus of its initiatives,
such as additional guidance on the scope and severity of deficiencies,
would be broad, in effect supporting our conclusion that the
shortcomings we identified were systemic and not limited to Arkansas.
CMS and the state survey agency raised concerns about (1) the
discrepancy we reported between the number of referrals the coroner
said he made (86) and the number the survey agency said it received
(36) and (2) the relevance of survey predictability to complaint
investigations based on coroner referrals. In addition, the state
survey agency commented that we had understated the number of
investigations it actually conducted. (CMS's comments are reproduced in
app. III,[Footnote 48] and the state survey agency's comments are
reproduced in app. IV.) Our evaluation of CMS, survey agency, and
coroner comments covers the following six areas: CMS's past
noncompliance policy, shortcomings in state survey agency
investigations, lessons from implementing the Arkansas law, the number
of coroner referrals and survey agency investigations, survey
predictability and methodology redesign, and the impact of the Arkansas
law.
CMS Policy on Past Noncompliance:
CMS agreed with our recommendations to revise its past noncompliance
policy. We found that some nursing homes were not held accountable for
serious deficiencies, even though some coroner referrals were
substantiated, because of flaws in CMS's policy governing past
noncompliance. Following a planned review of the policy, CMS indicated
that it would (1) clarify expectations for the manner in which state
survey agencies should address past deficiencies that have only
recently come to light, (2) further define important terms,
particularly egregious, (3) ensure that the specific nature of the care
problems was identified in OSCAR, and (4) strengthen criteria for
determining whether a nursing home had actually taken steps to address
deficiencies that contributed to past noncompliance. CMS did not
indicate whether it also planned to identify the specific nature of
deficiencies associated with past noncompliance on its Nursing Home
Compare Web site, but we continue to believe that posting such
information would provide valuable assistance to consumers.
Shortcomings in State Survey Agency Investigations Nationwide:
Because of the seriousness of the shortcomings identified in our
report, CMS sent a clinical fact-finding team to Arkansas for 3 days
after receiving a draft of our report. The CMS clinical team found that
some, but not all, of the referrals for which lower-level deficiencies
were cited should have received a higher-level severity rating. In
addition, from among six coroner referrals that were not substantiated
by the survey agency, the team believed two should have been
substantiated, a higher disparity rate than CMS said it has typically
found for Arkansas surveys in general. As a result of its team's visit,
CMS concluded that additional training and clarification of its
guidance were warranted, including (1) increased training for state
surveyors in determining the appropriate scope and severity of
deficiencies as well as the development of additional CMS guidance and
analysis of patterns in state deficiency citations and (2) the
development of an advanced course in complaint investigations to be
piloted in Arkansas and evaluated for potential expansion and
replication nationwide. CMS noted that these initiatives would be
applied broadly, a recognition that the shortcomings we identified were
systemic and not limited to Arkansas.
While we fully support CMS's new initiatives, timely and sustained
follow-up to ensure effective implementation is critical; earlier CMS
initiatives to address these same problems were not timely or were
ineffective. We reported in July 2003 that CMS began a complaint
improvement project in 1999 but did not provide more detailed guidance
to states until almost 5 years later.[Footnote 49] Similarly, we
reported that CMS began developing more structured guidance for
surveyors in October 2000 to address inconsistencies in how the scope
and severity of deficiencies are cited across states, but the first
installment on pressure sores had not yet been released as of September
2004.[Footnote 50] Our 2003 report also noted that CMS began annual
reviews of a sample of deficiency citations from each state in October
2000 to identify shortcomings and the need for additional training, but
CMS's recognition that additional guidance and training are required
raises a question about the sufficiency and effectiveness of these
reviews. Furthermore, we believe that other factors may be contributing
to survey shortcomings. Our 2003 report noted that some state officials
cited inexperienced surveyors, the result of a high turnover rate, as a
factor contributing to the understatement of serious quality of care
deficiencies.
CMS commented that the photos conveyed from the coroner's office were
graphic, serious, and require careful investigation. The CMS clinical
team found that the photos were very helpful in a number of
investigations. We agree with CMS's view that the photos alone do not
represent sufficient evidence to render a conclusion that there was
poor care, neglect, or avoidable outcomes, or that the nursing home
caused the death. On the basis of its visit to Arkansas, the CMS
clinical team concluded that not all referred cases could be
substantiated with the photos, medical records, and other information
available to it; as we noted in the report, our expert consultant
reached the same conclusion on two of the seven cases she reviewed. We
nevertheless continue to believe that the state survey agency at times
appeared to dismiss photographic evidence of potential neglect and to
rely instead on observations of and interviews with current residents.
In response to our findings, CMS said it would study the issues
involved in the use of photos and would issue additional guidance for
use by state survey agencies.
Lessons from Implementing Arkansas's Law on Nursing Home Deaths:
CMS made a number of observations about lessons from the Arkansas
experience that would improve the effectiveness of mandatory reporting
systems, such as the coroner referrals required by the Arkansas law.
These lessons related to the implementation of the Arkansas law by
local coroners and the quality and timeliness of referrals made by the
Pulaski County coroner. We agree that these factors are important to
the ability of state survey agencies to promptly and effectively
complete their own investigations based on coroner referrals of
potential neglect. However, because we lack the authority to evaluate
the implementation of state laws, we excluded such an analysis from the
scope of our work. We do have the authority to evaluate the performance
of federally funded entities--such as the state survey agency and the
MFCU--that are responsible for ensuring that Medicare and Medicaid
nursing home residents receive quality care, and we therefore focused
our work on how these entities responded to the cases referred to them.
In particular, CMS highlighted the lack of referrals from most Arkansas
coroners and the processes followed by coroners, primarily the Pulaski
County coroner, in making referrals to the state survey agency. During
our interviews, the Pulaski County coroner and MFCU officials
demonstrated their awareness of the absence of an enforcement mechanism
in the state law to ensure that nursing homes and coroners comply with
the law; the Pulaski County coroner told us that he intends to pursue
this issue with the state legislature. According to CMS, the quality of
the documentation provided by coroners did not conform to key
principles of forensic science, such as embedded photo dating and
subject identification, photo scale metrics and color charting, and
interviews with residents' physicians. While the coroner referrals may
have lacked these features, the referral packages we examined clearly
identified the decedents, the time the coroner's office was notified of
the deaths, and the time the coroner's staff arrived at the homes. It
is also clear from the documentation that the photos were taken shortly
after death. Requiring such a level of forensic evidence from the
coroner substantially exceeds the burden of proof the state survey
agency requires for other complaints filed, which is how the coroner
referrals are treated. The coroner referrals are intended to be the
starting point for the state's investigation, not a substitute for its
own thorough investigation.
Both CMS and the state survey agency expressed concern about the
elapsed time between the dates of death and the receipt of coroner
referrals by the survey agency. In particular, they noted that our
analysis excluded five referrals the coroner made in 2004 that related
to deaths in 2003, with the elapsed times from the deaths to receipt of
the referrals ranging from 222 to 400 days.[Footnote 51] We excluded
these five referrals because they had not yet been referred when we
completed our data collection for this report, which covered referrals
for the period July 1999 through December 2003.[Footnote 52] In
principle, we agree with CMS's view that the value of a timely
investigation by the state survey agency can be influenced by the
length of time associated with referrals, even though we found that the
coroner's referral of several cases up to 4 months after the residents'
deaths did not appear to have handicapped the investigations. For
example, the state survey agency substantiated three coroner referrals
with deficiencies at the actual harm and immediate jeopardy level even
though the referrals were not received for between 65 and 106 calendar
days after residents' deaths. Although the survey agency did not
substantiate one coroner referral that was not received until 102 days
after the resident's death, the MFCU found neglect. For the 36
referrals the survey agency said it received from the coroner for the
period we analyzed, the average elapsed time from the date of death
until the coroner made his referral was 38 days (ranging from zero to
180 days), whereas the average elapsed time from the date the survey
agency received the referral until it initiated its investigation was
46 days (ranging from zero to 425 days).[Footnote 53] Notwithstanding
these elapsed times for coroner referrals and state investigations, CMS
commented that it would study its priority criteria for complaint
triage and refine its policy with regard to the treatment of and
response to complaints.
Number of Coroner Referrals and State Survey Agency Investigations:
Both CMS and the state survey agency questioned the validity of the
number of Pulaski County coroner referrals, commenting that we lacked
independent verification of the number actually referred; they also
believed that the report's language suggested referrals had been
received but not investigated. We revised the report to make it clear
that the coroner told us he had referred 86 cases of suspected neglect
of deceased nursing home residents to the state survey agency and the
MFCU for investigation (and, as noted below, we reviewed the related
case documentation for each of the 86 referrals). We also revised the
report to clarify that the state survey agency investigated the 36
coroner referrals that it told us it had received.[Footnote 54] CMS
asserted that the coroner was unable to provide its clinical team with
a list of his referrals; however, CMS's comments do not reflect that
the coroner's case files were not automated. We compiled a list of the
86 referrals ourselves. Our list was based on documentation provided by
the coroner for each of the cases he told us he referred, including a
narrative summary describing the suspected neglect, copies of
decedents' medical records, autopsy reports, and photos documenting the
decedents' conditions. Although the state survey agency and the MFCU
told us that they did not receive all 86 coroner referrals, we believe
that the MFCU's receipt of almost three fifths of the coroner's
referrals (compared with the state survey agency's receipt of fewer
than half) provides independent corroboration that the Pulaski County
coroner made more than 36 referrals during the 4.5-year period we
examined. As noted in the report, the coroner was instrumental in
securing passage of the law, a fact that is inconsistent with the
suggestion that the coroner withheld referrals. To address the
disparity in the number of referrals the coroner told us he made and
the number the state survey agency and the MFCU told us they received,
the coroner began requiring signed receipts in March 2004, a practice
reflected in our draft report.
The state survey agency commented that we had understated the number of
investigations of nursing home deaths it had conducted. The agency
identified 22 investigations that, in most cases, were based on the
receipt of a complaint from individuals other than the coroner.
* We excluded 9 of these 22 investigations because they were conducted
prior to the residents' deaths. For example, one complaint of alleged
rape of a 91-year-old resident was filed by a hospital that found the
resident had a sexually transmitted disease. The complaint was not
substantiated. The coroner's investigation of the resident's death 5
months later resulted in a referral based on seven serious pressure
sores on the decedent's feet, lower back, and hips, a problem that was
not noted during the hospitalization.
* We revised our analysis to include 1 of the 22 cases because the
coroner confirmed that he had indeed made the referral. Thus, we
adjusted the number of coroner referrals from 85 in the draft report to
86 in the final report. We also revised the number of referrals the
state survey agency said it received from 35 to 36. We confirmed that
this additional referral was not received or investigated by the MFCU.
* For 7 cases, we determined that the allegations in the non-coroner
complaints were similar to the concerns raised by the coroner's
investigations and have added footnotes in the appropriate sections of
the report, depending on whether the investigations substantiated (2
complaints) or did not substantiate (5 complaints) the complainants'
allegations.
* For the remaining 5 cases, we made no changes in the report.[Footnote
55] In one case, the survey agency's complaint investigation focused on
an issue different from the suspected neglect identified by the
coroner. In four other cases, the agency included the decedents'
records in its resident samples during standard surveys. The decedents
were not included in any deficiencies cited during these surveys and,
importantly, the surveyors lacked the coroner's photos of pressure
sores, which would have been particularly useful in raising questions
about the care provided as documented in the decedents' medical
records.
Survey Predictability and Methodology:
Both CMS and the state survey agency questioned the relevance of survey
predictability to complaint investigations resulting from coroner
referrals and suggested we delete this analysis from the final report.
Neither organization commented on our assessment of the impact of
survey methodology weaknesses and misleading medical records on
detecting quality-of-care problems. We retained this analysis in the
final report because we believe the issues of survey predictability and
methodology are relevant to state survey complaint investigations of
coroner referrals. Our 1998 and subsequent work found that predictable
surveys allowed homes so inclined to (1) significantly change the level
of care, food, and cleanliness by temporarily augmenting staff just
prior to or during a survey, and (2) adjust resident records to improve
the overall impression of the home's care.[Footnote 56] We also
reported in 1998 that surveyors may overlook significant care problems
during annual surveys because of survey methodology weaknesses and
omissions or misleading information in resident medical records.
Although the predominant care problem identified in 67 percent of the
coroner's referrals involved serious pressure sores, most of the
nursing homes referred had not been cited for a pressure sore
deficiency at the actual harm level or higher on any of their previous
four standard surveys. We believe that the striking disparity between
annual survey findings and the predominant care problems identified by
the coroner relates to the predictability of annual surveys, weaknesses
in survey methodology, and misleading medical records--all of which
contribute to the phenomenon of undetected care problems. Our work in
Arkansas suggested the existence of sampling problems in a home whose
annual survey failed to detect any quality-of-care problems, even
though three residents, all with serious pressure sores, died within 1
month. The fact that none of these residents was included in the
nursing home's annual standard survey underscores the importance of
implementing a revised survey methodology that CMS has had under
development for 7 years. Our report also provides several examples
where misleading medical records contributed to the failure of the
Arkansas state survey agency to detect care problems that the MFCU or
our expert consultant identified and were obvious in some of the
coroner's photos of decedents.
CMS further commented that our analysis of survey predictability
resurrected prior reports and recommendations to which CMS has
previously responded and that we failed to acknowledge CMS and state
survey agency progress in reducing survey predictability. We believe
that CMS's comments are inaccurate. In our 1998 report, we recommended
segmenting the survey into more than one review throughout the year to
reduce survey predictability. CMS responded to this recommendation by
requiring that 10 percent of state annual surveys be conducted on
weekends, at night, or early in the morning. Despite CMS's introduction
of "off hour" surveys, we reported in 2003 that about one-third of
state surveys remained predictable (36 percent in Arkansas). Contrary
to CMS's comments, the draft report did acknowledge that Arkansas
appeared to be making progress in reducing survey predictability
through the use of computer programs to vary the timing of homes'
surveys.
Impact of the Arkansas Law:
In oral comments, the Pulaski County coroner indicated that our report
was fair and accurate. He also told us that he believes the law has had
a significant, positive impact on the quality of care provided to
nursing home residents in Pulaski County. In particular, he rarely
finds decedents with serious pressure sores and the pressure sores he
does find are not as serious as those in earlier referrals. He also
cited the declining number of referrals--only six 2003 resident deaths
were referred compared to 18 in 2002. He also provided technical
comments that we incorporated as appropriate.
As arranged with your offices, unless you publicly announce its
contents earlier, we plan no further distribution of this report until
30 days after its issue date. At that time, we will send copies of this
report to the Administrator of the Centers for Medicare & Medicaid
Services and appropriate congressional committees. We also will make
copies available to others upon request. In addition, the report will
be available at no charge on the GAO Web site at http://www.gao.gov.
Please contact me at (202) 512-7118 or Walter Ochinko, Assistant
Director, at (202) 512-7157 if you or your staffs have any questions.
GAO staff who made key contributions to this report include Jack
Brennan, Lisanne Bradley, Patricia A. Jones, and Elizabeth T. Morrison.
Signed by:
Kathryn G. Allen:
Director, Health Care--Medicaid and Private Health Insurance Issues:
[End of section]
Appendix I: Coroner Referrals for Pressure Sores and the Seriousness of
Deficiencies Cited on Standard Surveys:
Nursing home: A;
Number of coroner referrals for pressure sores: 11;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 1.
Nursing home: B;
Number of coroner referrals for pressure sores: 5;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Actual harm or higher: 1;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 2.
Nursing home: C;
Number of coroner referrals for pressure sores: 5;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 1.
Nursing home: D;
Number of coroner referrals for pressure sores: 4;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Actual harm or higher: 1;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 1.
Nursing home: E;
Number of coroner referrals for pressure sores: 3.
Nursing home: F;
Number of coroner referrals for pressure sores: 3;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 2.
Nursing home: G;
Number of coroner referrals for pressure sores: 3.
Nursing home: H;
Number of coroner referrals for pressure sores: 3;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 2.
Nursing home: I;
Number of coroner referrals for pressure sores: 3.
Nursing home: J;
Number of coroner referrals for pressure sores: 3.
Nursing home: K;
Number of coroner referrals for pressure sores: 4.
Nursing home: L;
Number of coroner referrals for pressure sores: 2;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Actual harm or higher: 1.
Nursing home: M;
Number of coroner referrals for pressure sores: 2.
Nursing home: N;
Number of coroner referrals for pressure sores: 1.
Nursing home: O;
Number of coroner referrals for pressure sores: 2.
Nursing home: P;
Number of coroner referrals for pressure sores: 1;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 2.
Nursing home: Q;
Number of coroner referrals for pressure sores: 1;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 1.
Nursing home: R;
Number of coroner referrals for pressure sores: 0;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 2.
Nursing home: S[B];
Number of coroner referrals for pressure sores: 1.
Nursing home: T;
Number of coroner referrals for pressure sores: 0.
Nursing home: U;
Number of coroner referrals for pressure sores: 0;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Actual harm or higher: 2;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 1.
Nursing home: V;
Number of coroner referrals for pressure sores: 0;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 1.
Nursing home: W;
Number of coroner referrals for pressure sores: 0;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 1.
Nursing home: X;
Number of coroner referrals for pressure sores: 0.
Nursing home: Y[B];
Number of coroner referrals for pressure sores: 0.
Nursing home: Z;
Number of coroner referrals for pressure sores: 1.
Nursing home: AA[B];
Number of coroner referrals for pressure sores: 0.
Nursing home: Total;
Number of coroner referrals for pressure sores: 58;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Actual harm or higher: 5;
Number of deficiencies cited for pressure sores on homes’ standard
surveys[A]: Below actual harm: 17.
Source: GAO analysis of coroner referrals and OSCAR data.
[A] Includes last four state surveys for each home as of October 24,
2003,with the exception of homes Q and Z, which include the last four
surveys as of July 30, 2004.
[B] The state survey agency is not required to survey these facilities
under federal law.
[End of table]
[End of section]
Appendix II: Coroner Referrals That the State Survey Agency Reported as
Not Received, Substantiated, or Not Substantiated:
Nursing home: A;
Number of referrals: 12;
Number not received: 5;
Number substantiated: 7.
Nursing home: B;
Number of referrals: 7;
Number not received: 3;
Number substantiated: 1;
Number not substantiated: 3.
Nursing home: K;
Number of referrals: 7;
Number not received: 5;
Number not substantiated: 2.
Nursing home: C;
Number of referrals: 6;
Number not received: 4;
Number substantiated: 2.
Nursing home: F;
Number of referrals: 5;
Number not received: 3;
Number not substantiated: 2.
Nursing home: H;
Number of referrals: 5;
Number not received: 5.
Nursing home: D;
Number of referrals: 4;
Number not received: 2;
Number substantiated: 1[A];
Number not substantiated: 1.
Nursing home: G;
Number of referrals: 4;
Number not received: 1;
Number not substantiated: 3.
Nursing home: M;
Number of referrals: 4;
Number not received: 2;
Number not substantiated: 2.
Nursing home: E;
Number of referrals: 3;
Number not received: 1;
Number substantiated: 2[A].
Nursing home: I;
Number of referrals: 3;
Number not received: 1;
Number substantiated: 2[A].
Nursing home: J;
Number of referrals: 3;
Number not received: 2;
Number not substantiated: 1.
Nursing home: L;
Number of referrals: 3;
Number not received: 1;
Number substantiated: 2.
Nursing home: R;
Number of referrals: 3;
Number not received: 3.
Nursing home: O;
Number of referrals: 2;
Number not received: 2.
Nursing home: P;
Number of referrals: 2;
Number not received: 2.
Nursing home: S;
Number of referrals: 2;
Number not received: 2.
Nursing home: T;
Number of referrals: 2;
Number not received: 1;
Number substantiated: 1.
Nursing home: N;
Number of referrals: 1;
Number not received: 0;
Number substantiated: 1.
Nursing home: Q;
Number of referrals: 1;
Number not received: 0;
Number substantiated: 1.
Nursing home: U;
Number of referrals: 1;
Number not received: 1.
Nursing home: V;
Number of referrals: 1;
Number not received: 1.
Nursing home: W;
Number of referrals: 1;
Number not received: 1.
Nursing home: X;
Number of referrals: 1;
Number not received: 0;
Number substantiated: 1.
Nursing home: Y;
Number of referrals: 1;
Number not received: 1.
Nursing home: Z;
Number of referrals: 1;
Number not received: 1.
Nursing home: AA;
Number of referrals: 1;
Number substantiated: 1.
Nursing home: Total;
Number of referrals: 86;
Number not received: 50;
Number substantiated: 22;
Number not substantiated: 14.
Source: Arkansas state survey agency.
Note: Data on referrals made from July 1999 through December 2003 are
based on information provided by the Pulaski County coroner.
[A] One referral was substantiated without any deficiencies.
[End of table]
[End of section]
Appendix III: Comments from the Centers for Medicare & Medicaid
Services:
A portion of CMS's response was based on tables presented in attachment
1 to its comments. Because the tables did not accurately reflect the
coroner cases discussed in our report, CMS submitted an amended
attachment 1, which we have substituted for the original attachment 1.
CMS, however, did not make corresponding changes on pages 6 and 7 of
its letter. We have marked the text on those pages in the letter where
the information in the amended attachment 1 supercedes data presented
in the letter.
DEPARTMENT OF HEALTH & HUMAN SERVICES:
Centers for Medicare & Medicaid Services:
Administrator:
Washington, DC 20201:
DATE: SEP 15 2004:
TO: Kathryn G. Allen:
Director, Health Care-Medicaid and Private Health Insurance Issues:
Government Accountability Office:
Signed by:
FROM: Mark E. McClellan, M.D., Ph.D.:
Administrator:
SUBJECT: Government Accountability Office (GAO) Proposed Report:
Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses in
State & Federal Oversight of Quality of Care (GAO-04-980):
Thank you for the opportunity to comment on the above-referenced, draft
report.
The issues raised in the report are important ones. For that reason,
and because of significant gaps in the information available, we sent a
clinical team to Arkansas for three days.
The Centers for Medicare & Medicaid Services (CMS) fact-finding team
reviewed a number of the cases referred to the state Survey Agency (SA)
over the course of the 4.5 years covered by the GAO study. The team
reviewed evidence associated with the coroner case referrals, including
photos. The team reviewed complaint investigation files and complaint
systems related to these referrals in the state SA. The team conducted
numerous interviews among officials of the Pulaski county coroner's
office, the state SA, and the Medicaid Fraud Control Unit (MFCU)
located in the state's Attorney General's office. In the absence of a
common descriptive label in the law itself, we will simply refer to it
as the "Coroner Referral Law" for ease of reference.
The Arkansas "Coroner Referral Law," unique in the nation, represents
an important case study. There are valuable lessons that can be gained
from the Arkansas experience and from your report. 1n the comments
below we highlight some of those lessons, affirm in principle the GAO
recommendation to CMS, and itemize more than a dozen additional action
steps that CMS is undertaking in order to make the most effective use
of insights obtained from the Arkansas experience.
The Pulaski county coroner reports that he referred 85 cases over 4.5
years to both the SA and MFCU, about 2.1 % of the total number of
nursing home deaths during that period. The SA reports, however, that
it received fewer cases than reported by the coroner, and then
investigated 100% of those that it did receive. The MFCU also reported
that it actually received fewer cases than the number stated by the
coroner.
Although the number of allegations of abuse or neglect referred by the
coroners and substantiated by the survey agency represented only about
0.5% of all nursing home deaths (21 of more than 4000 reported to the
coroners), the conditions of the affected individuals were extremely
serious and merit close review.
Lessons for Mandatory Reporting Systems: CMS, and any state that
contemplates a mandatory reporting and investigation law similar to the
law in Arkansas, can benefit greatly from examining the experience
under the Arkansas Coroner Referral Law since 1999.
Only 1 of 75 coroners seems to have had substantial participation in
the referral and investigation system (about 95% of reported referrals
came from just one coroner). This experience points to the need for
enforcement provisions in any such mandatory referral system.
The two agencies receiving referrals from the Pulaski county coroner
state Medicaid Fraud Control Unit (MFCU) and SA report that they did
not receive 40-59% of the referrals (respectively) that the Pulaski
county coroner states he made. This phenomenon points to the importance
of having crystal clear referral and documentation systems in place
from the referring agencies (in this case, the coroners'offices).
The fact that referrals from coroners' offices to the state survey
agency ranged from 2 days to 415 days (after receipt of the notice from
the nursing home) suggests the need for clear timelines for all
participating agencies.
The CMS clinical team also found that a considerable amount of the
documentary evidence conveyed from coroners' offices did not conform to
key principles of forensic science. Examples include a lack of embedded
photo dating, lack of embedded subject identification, lack of scale
metrics and color charting in the photos, lack of adequate records for
interview sources, lack of interviews with residents' physicians. These
experiences suggest the need for clear investigatory protocols and a
method to ensure that the protocols are scrupulously followed by
coroners' offices.
The fact that the qualifications of the coroners varies so widely, that
the coroners are rarely physicians (about 80% are reported to be
funeral home directors) suggests the need for either additional
training to handle the more sophisticated responsibilities dictated by
the Arkansas law, or qualification standards.
The point of these observations is not to criticize the Arkansas
coroners, for they work within a larger system structured by the law
itself. The point is that an effective referral and investigation
system depends on the action of many participants whose individual
contributions must integrate.
Adequacy, timeliness, and quality of the referrals are important
because they:
* Aid or impede the survey agency's subsequent investigation.
* Affect the SA's judgement about how urgently the investigation ought
to be done compared to other newly-arriving complaints.
* Affect the freshness of evidence or witness testimony if referrals
are delayed. Affect CMS' ability to hold survey agencies accountable
since no agency can fully prove a negative (e.g. "prove that you did
not receive the number of referrals that the coroner thinks was sent").
CMS Policy on Past Non-Compliance: The CMS policy on "past non-
compliance," incorporated into regulation and operational manuals, is
intended to avoid penalizing nursing homes for problems for which they
have taken clear remedial action and that occurred prior to more recent
surveys of the nursing homes but only recently came to the attention of
the SA.
We fully agree in principle with the GAO recommendation that the CMS
policy for past non-compliance merits additional work in light of the
Arkansas experience. Following our review we will:
* Clarify Expectations for Past Deficiency Findings for Nursing Homes:
CMS will clarify expectations for the manner in which state survey
agencies should address past deficiencies that have only recently come
to light.
* Further Define Terms for Past Non-Compliance: Further define
important terms, particularly the term "egregious."
* Enhance CMS Information System: Add the capacity to record the fact
and the nature of past noncompliance in the CMS information system
("OSCAR").
* Strengthen Criteria for NH Correction of Deficiencies: Strengthen the
criteria for determining whether past noncompliance has actually been
corrected by nursing homes (NHs). This action moves beyond the GAO
recommendation because we believe that the degree of systemic remedy
actually put in place by the nursing home ought to be the most
important determinant for present-day enforcement of past noncompliance
that only more recently came to the attention of the survey agency.
Referrals from the Coroner's Offices. With regard to referrals from the
Pulaski county coroner, the GAO report states that the SA investigated
"fewer than half of those the coroner referred..." (p.4). This
statement is unconfirmed and ought to be removed. The only confirmed
facts are:
* The full number of referrals that the Pulaski coroner states that he
made were not confirmed as having been delivered to either the SA or
the Medicaid Fraud Control Unit of the Arkansas Attorney General's
Office.
* The SA investigated all referrals that they confirm as having been
received.
The draft GAO report also criticized both the SA and MFCU for record-
keeping practices, making no mention of the coroners' offices. In
contrast, we found that the state SA had a competent system for
managing complaints. A second state agency (the MFCU) similarly
reported receiving far fewer than the 85 referrals that the coroner's
office suggested (51 rather than 85, according to the draft GAO
report). The Pulaski county coroner's office was not able to provide
CMS with a listing of the 85 referrals it reportedly made to both the
SA and MFCU.
The CMS on-site review of the SA's system, the inability of the
coroner's office to provide CMS with either a list of the 85 referrals
or confirmation that they were delivered, and the fact that two
different state agencies both report that they did not receive the full
number of referrals claimed by the coroner, are facts that lead us to
conclude that the state survey agency received fewer referrals than 85.
Of these, the SA investigated 100%.
We suggest that those sections of the GAO report that baldly accept the
coroner's number of 85 referrals (e.g. top of p. 4) be adjusted to
reflect the fact that evidence is lacking to confirm that 85 referrals
were actually delivered. And to state on page 19 that "Overall, 32
coroner referrals were not investigated by either agency" is simply
inaccurate in light of the fact that receipt of the referrals is not
confirmed by either of the two agencies (SA or MFCU).
Insofar as CMS jurisdiction applies only to the SA and MFCU, we will
undertake the following action to augment the national automated
complaint tracking system that CMS and states implemented in 2004:
* Design Feedback Systems for Agency Referrals: We will design, with
Arkansas and other states, a model feedback report for coroners, law
enforcement and other agencies that have a mandatory reporting
obligation. The feedback report will contain pertinent information on
all referrals received by the SA from the relevant source. The report
will provide a structured means by which the referral source may check
its own records and identify any problems it perceives.
Timeliness of Investigations: The Arkansas "Coroner Referral Law"
presents special challenges for public policy. We will:
* Study the Priority Criteria for Complaint Triage: Study the Arkansas
experience in terms of its implications for CMS requirements for the
speed and triage priorities for responding to complaint referrals made
on behalf of individuals who are deceased.
* Refine CMS Policy on Responding to Complaints: Refine CMS policy with
regard to the treatment of complaints.
Among the many questions worth considering are the following:
What priority should be accorded to referrals that involve persons who
have been deceased for a considerable period of time prior to receipt
by the SA, compared to complaints involving current residents?
How can patterns of potential abuse or neglect best be identified to
establish context for any referral, particularly patterns that ought to
move a referral to top priority regardless of how long a person has
been deceased prior to receipt by the SA?
In the Arkansas experience, the CMS clinical team found that many
referrals from the coroner's office were significantly delayed.
Attachment 1 to this letter contains a listing of the referral times
and SA investigation times. The Pulaski county coroner stated that the
coroner's referral process, from the date of the nursing home's call of
a resident's death to case development and referral by the coroner to
the SA, takes a maximum of 2 weeks. Yet, both the SSA and the MFCU
received coroner cases that took significantly longer (see Attachment
1).
The GAO report apparently omitted 5 of the following 6 cases that were
reported by nursing homes to the coroner in 2003 but not referred from
the coroner to the state survey agency until 2004. The CMS team
reviewed the timeliness of referral to the SA of the 6 Pulaski County
nursing home resident deaths in 2003 and found the following.
Case #: 8966;
Date of Coroner Report: 3/10/2003;
Date of SA Receipt: 4/28/2004;
Days: 415.
Case #: 8965;
Date of Coroner Report: 5/17/2003;
Date of SA Receipt: 4/28/2004;
Days: 347.
Case #: 8974;
Date of Coroner Report: 6/10/2003;
Date of SA Receipt: 4/29/2004;
Days: 324.
Case #: 8970;
Date of Coroner Report: 6/15/2003;
Date of SA Receipt: 4/13/2004;
Days: 303.
Case #: 8973;
Date of Coroner Report: 9/4/2003;
Date of SA Receipt: 4/29/2004;
Days: 238.
Case #: 8779;
Date of Coroner Report: 3/1/2004;
Date of SA Receipt: 3/05/2004;
Days: 4.
[End of table]
Overall, the CMS team found the following approximate average and
median intervals of time for all cases (including those above that were
omitted by GAO).
Referral Interval: Median Time;
Coroner – Receipt to Referral Time: 29 days;
State Survey Agency Receipt to Investigation Time: 21 days.
Referral Interval: Average Time;
Coroner – Receipt to Referral Time: 75 days;
State Survey Agency Receipt to Investigation Time: 37 days.
Referral Interval: % Completed within 10 Days;
Coroner – Receipt to Referral Time: 17%;
State Survey Agency Receipt to Investigation Time: 33%.
Referral Interval: Range;
Coroner – Receipt to Referral Time: 2 - 415 days;
State Survey Agency Receipt to Investigation Time: 0 - 164 days.
[End of table]
These data are included here not as criticism of the Arkansas coroner,
but to establish context for evaluating actions of the state SA. The
value of a timely investigation by the SA will be reduced by any
significant interval of time required by referring entities before
cases are referred to the SA. The CMS clinical team did find that the
SA should have investigated a number of the cases in a more timely
manner when evaluated strictly against CMS policy. In reviewing the
"triage" decisions of the SA, the CMS team concurred with 81% and did
not concur with 19%. It remains for us to evaluate that policy in light
of the Arkansas experience, make needed adjustments or clarifications,
communicate and train state agency staff on those policies, and then
ensure that the timelines are met. We will do so.
Cases Not Substantiated: The GAO report concluded that "In half of the
referrals not substantiated by the state survey agency, either the MFCU
investigation found neglect or we questioned the basis for the `not
substantiated' finding and our concerns were confirmed by a professor
of nursing with experience in long-term care." (p.18):
The SA confirmed receiving 35 cases, investigated the 35, and
substantiated 21 of the cases. Additional cases were investigated that
GAO put on its list, but the SA's investigations were precipitated by
complaints other than those reportedly made by the coroner and are not
included here in our comments.
While it is appropriate to question the 14 cases not substantiated,
investigations by survey agencies are governed by rules of evidence and
must be fact-based. This is appropriate, since allegations and
convictions for abuse or neglect are serious, legal matters in which
all parties have certain legal rights and responsibilities.
The CMS clinical team reviewed a sample of 8 of the 14 cases that were
not substantiated by the SA. For 2 of the 8 a final conclusion could
not be reached without additional records from the nursing home that
had been available to the SA investigators at the time the state
officials conducted their investigation. Of the remaining 6 cases the
CMS team concurred with 4 and disagreed with 2. The degree of
disagreement (2 of 8) is higher than the typical disparity rate CMS has
found for Arkansas surveys in general. The difference here could be an
artifact of the small sample size (8 cases) or special challenges
experienced by the state SA in investigating referrals of individuals
who have been deceased for some time.
We have reviewed these findings with the Arkansas SA and concluded that
additional training is needed. To that end, CMS will:
* Increase Complaint Investigation Training: Develop a curriculum for
an advanced course in complaint investigations.
* Pilot Advanced Programs for Complaint Investigation Training Work
with state officials to sponsor such training and include other states
in the region.
* Evaluate and Expand Advanced Training for Complaint
Investigations: Evaluate the training for potential expansion and
replication in all regions.
Understating the Seriousness of Deficiencies: The GAO report states
that (a) some of the substantiated complaints did not result in
citations for deficiency, and (b) some of those that were cited were
done at lower levels of severity than warranted.
Cases that were substantiated but did not result in a citation of
deficiency primarily result from the policy governing past
noncompliance. This policy is provided both in CMS operations manuals
and in regulation at 42 CFR 488.430(b). As stated earlier, we will
review this policy and take appropriate action pursuant to our review.
The CMS clinical team agreed that some - but not all-of the other cases
should have received a higher level of severity rating. We are
discussing these findings with the state SA and have agreed with them
to provide additional training and guidance for the future.
The CMS monitoring and other available evidence indicates that Arkansas
has not had a pattern of citing deficiencies at levels lower than
expected during the 4.5 year period covered by the GAO study (they have
generally been higher than national averages). We therefore take work
of our clinical team and of GAO to mean that additional training and
additional clarifications relative to scope and severity are warranted
even more for other states than for Arkansas. We will do the following:
* Increase Training in Classifying Deficiencies: We will arrange for
state-specific or multi-state training to address issues related to the
proper citation of deficiencies in terms of their scope and severity.
* Issue Additional CMS Guidance on Deficiency Classification: We will
issue additional guidance to states of the proper classification of
identified deficiencies and the relationship of those citations to
enforcement actions.
* Increase Regional Office Follow-Up.
* Increase CMS Analysis of Patterns in State Deficiency Citations:
Following Through on Enforcement: Proper classification and citation of
a deficiency is necessary, but not wholly sufficient. The ultimate goal
must be (a) remedy of the problem, and (b) system changes that might be
needed to prevent identical or similar problems in the future. To this
end, CMS will:
* Automate Enforcement Tracking: On October 1, 2004 CMS will implement,
nationwide, a new electronic tracking and management system ("Aspen
Enforcement Manager," or "AEM") for all types of actions that state
survey agencies might take, in response to identified nursing home
deficiencies, to promote the prompt and effective remedy of the
problems.
Predictability of Nursing Home Surveys: The GAO report summarizes
previous GAO work related to the extent to which nursing homes might be
able to predict the states' unannounced surveys. The frequency of the
surveys is statutorily required every 15 months, with an average of 12
months. CMS requires both staggering of surveys (e.g. nursing homes
should not have surveys around the same time of year each year) and
off-hour surveys (e.g. weekends, evenings). The Arkansas SA has a track
record of often exceeding the percentage of off-hour surveys required
by CMS (10 percent).
Substantial increases in the off-hour or staggered schedule
requirements would have a fiscal impact on state budgets, or require
that other important functions not be done. The GAO report would be
more useful if it came to terms with these facts instead of
resurrecting old GAO reports (to which CMS has responded) without
acknowledging CMS and state improvements made since the original GAO
reports, or the implications of even further advances. Since the issue
of survey predictability is not especially germane to the analysis of
the Arkansas Coroner Referral Law, we recommend that this portion of
the GAO report be removed, or that the above issues be addressed.
Use of Photographs: The photos conveyed from the coroner's office are
graphic, serious, and fully require careful investigation. Photographs
in any investigation can be (a) tremendously useful when accomplished
with care, or (b) not useful, and sometimes misleading, when not
accomplished according to generally-accepted rules of forensic science.
The use of photographs in the survey process therefore poses important
public policy challenges. To the extent that advances in technology,
and laws such as the Arkansas Coroner Referral Law, become more common
then we are well advised to study this area further.
The CMS clinical team reviewed the photos and found that they were very
helpful in a number of the investigations. The CMS team also reviewed
the majority of cases that the SA did not substantiate. In a number of
cases the team found that the surveyors' investigation did not result
in a substantiated finding of abuse or neglect because:
* The resident arrived to the NH with the pressure ulcers from other
facilities, (the specific NH in which the resident resided could not
have avoided the outcome).
* Interventions by the primary care physician with resident families
sought to address the challenges in meeting a resident's nutritional/
hydration needs without invasive lines/tubes (end of life choice
decisions by individuals under hospice care, and a patient rights by
regulation),
* Some of the photos capture the presentation of peripheral vascular
diseases, and skin conditions likely weakened by the use of certain
medications (e.g. steroids) commonly used to treat arthritic,
pulmonary, or cardiovascular diseases. In such cases, the meaning of
the photographic information is not dispositive and can only be
discerned through other investigation, including interviews with
physicians.
* In most cases the coroner's office did not interview
physicians. In one case of graphic photos, interviews by surveyors
determined that the physician had determined that the only option was
bilateral amputation, a course that neither the family nor the hospice
patient desired.
Any one of the above scenarios can be further complicated by an
individual resident's aged, demented, and/or debilitated body ravaged
by several co-morbidities.
The coroner's photos of significant pressure ulcers, or disease
processes, are particularly useful for the coroner's purposes -
determining whether there is sufficient evidence to warrant further
investigation by the SA. The photos by themselves do not, however,
represent sufficient evidence to render a conclusion of poor care,
neglect, avoidable outcomes or that the NH caused the death. We
therefore recommend that the GAO report acknowledge these facts (e.g.
by inserting the phrase "potential neglect" on p. 4 when stating that
photos of "...pressure sores were the predominant indication of
neglect..."
The investigation of complaints by the SA to substantiate (or not), and
the work of the MFCU to build a case for civil or criminal prosecution,
requires a variety of tools and information sources (e.g., interviews,
medical record documentation) to best understand the circumstances of
care or service. If, as the CMS team learned, those photos lack common
requisites of forensic science then they are much less useful than
could be the case. Examples of key problems include a lack of embedded
photo dating, lack of embedded subject identification, lack of scale
metrics and color charting in the photos lack of adequate records for
interview sources, lack of interviews with residents' physicians. Some
of the coroner's pictures were so close to the body part that we could
not identify with certainty the body part captured. It is also unclear
from the GAO draft report whether the professor of nursing had the
benefit of the actual NH medical record, or the benefit of interviews
conducted by the SA investigators who followed up on the referrals.
In light of these issues CMS will:
* Issue Guidance on Use of Photographic Evidence: CMS will undertake a
study of the issues involved in the use of photographs and issue
additional guidance for use by state survey agencies. We expect the
guidance to the state SAs will also be useful to their partnering
agencies (e.g. coroners).
Pressure Ulcers: The GAO draft observes that, in about 2/3 of the
coroner's referrals, pressure sores were the predominant indication of
potential neglect. This points to the increasing importance of
management, training and practice that can promote the effective
prevention and treatment of pressure ulcers. CMS has already identified
this area as an important focus for additional investment, and is
undertaking the following actions:
* Reducing Pressure Ulcers through Clear Goals: CMS has made the
reduction in pressure ulcers in nursing homes as an important goal
under the Government Performance and Results Act (GPRA):
* Increasing Quality Improvement Collaborations: CMS, state Survey
Agencies, and the Quality Improvement Organizations (QIOs) have
embarked on collaborative efforts to increase and coordinate their
respective efforts to work with nursing homes in the prevention and
reduction of pressure ulcers.
We appreciate the investment of time and energy that GAO devoted to
reviewing the Arkansas experience. We hope in the future that GAO will
be able to share its case information with us so that we may continue
to investigate the many issues that this valuable case study raises. In
the meantime, we are hope our comments are helpful in refining your
report.
Amended Attachment 1:
Federal Review of AR OLTC Triage of 36 Pulaski Count Coroner's
Referrals:
[See PDF for image]
[End of table]
NOTE:
Amending table #1 may slightly alter some final percentages in the text
response. Any revisions do not change any of the CMS conclusions. CMS
agrees with 24 of 35 (68.57%) priorities assigned by OLTC, and
disagrees with 11 of 35 (31.43%).
Column C - Complaint receipt dates obtained from the OLTC tracking
system. Line 34 referral receipt date obtained from a note written by
an OLTC employee. Line 36 referral receipt date handwritten on the
coroner's report.
CMS triaged all residents in participating facilities, including line
13 referral (complaint #4430) who was not in a certified bed.
CMS did not triage the referral on line 36. The resident was living in
a non-participating, licensed-only State Veterans Facility. Any care or
service failure could not impact Medicare beneficiaries or Medicaid
recipients. CMS has no jurisdiction over this facility nor State
licensure actions regarding this facility.
Federal Review of Five Pulaski Count Coroner's Referrals Received in
2004:
[See PDF for image]
[End of table]
[End of section]
Appendix IV: Comments from the Arkansas Department of Human Services:
Arkansas Department of Human Services:
Division of Medical Services:
Office of Long Term Care:
Mail Slot 5409:
P.O. Box 8059:
Little Rock, Arkansas 72203-8059:
Telephone (501) 682-8487:
TDD (501) 682-6789:
Fax (501) 682-8551:
Web Site: http://www.medicaid.state.ar.us/general/units/oltc:
September 13, 2004:
Walter Ochinko, Assistant Director:
Medicaid and Private Health Insurance Issues:
Health Care, Room 5A14:
United States General Accounting Office:
441 G. Street N.W.
Washington, DC 20548:
RE: Arkansas Office of Long Term Care Comments to Draft GAO Report -
NURSING HOME DEATHS: Arkansas Coroner Referrals Confirm Weaknesses in
State and Federal Oversight of Quality of Care (GAO-04-980):
Dear Mr. Ochinko:
The Arkansas Department of Human Services believes that the Arkansas
Coroner's Law reviewed in the report has the potential to help enhance
quality of care to residents through appropriate oversight of nursing
facilities. As the Arkansas Department of Human Services assisted the
Pulaski County coroner in bringing the law into existence, the
Department has a vested interest in its efficacy. We certainly
recognize that the Pulaski County coroner has utilized the law to
uncover deaths that required further examination on the part of the
Office of Long Term Care.
We therefore appreciate the opportunity to review the above referenced
draft report and to offer comments. Such a cooperative review will no
doubt ensure the accuracy of the report and help focus all parties on
the issues. In that light, we tender the following observations and
comments.
Validity of Referral Numbers - Throughout the report the number of
referrals from the Pulaski County Coroner is stated to be eighty-five
(85). Further, this number is stated to be the number of referrals to
both the State Survey Agency (SSA - the Office of Long Term Care) and
to the State Medicaid Fraud Control Unit (MFCU) located in the Arkansas
Attorney General's Office.
The phrasing of the referral numbers is troublesome, and is discussed
later in this letter. We offer the following examples, with page
notations and suggested language that would accurately reflect the
facts. The suggested language is italicized:
Page: Highlight Page:
Current Language: "From July 1999, when the Arkansas law took effect,
through December 2003, the Pulaski County coroner referred 85 cases of
suspected resident neglect to the state survey agency."
Page: Highlight Page:
Suggested Language: "From July 1999, when the Arkansas law took effect,
though December 2003, the Pulaski County coroner claims to have
referred 85 cases of suspected resident neglect to the state survey
agency. The state survey agency claims that during that same time only
35 cases were referred by the Pulaski County coroner."
Page: Highlight Page:
Highlight Page Current Language: "Arkansas state survey agency officials
told GAO that they received and investigated fewer than half of the
Pulaski County coroner's referrals."
Page: Highlight Page:
Suggested Language: "Arkansas state survey agency officials told GAO
that they received fewer than half of the referrals claimed to have
been made by the Pulaski County coroner. The State survey agency
investigated all of the cases that the state survey agency claimed were
received from the Pulaski County coroner."
Page: 18:
Current Language: "According to Arkansas state survey agency officials,
the agency did not receive or investigate more than half of the coroner
referrals of suspected resident neglect."
Page: 18:
Suggested Language: "According to Arkansas state survey agency
officials, the agency did not receive more than half the number of
referrals that the Pulaski County coroner claimed to have made to the
state survey agency. The state survey agency did investigate all
referrals that the state survey agency claimed were referred by the
Pulaski County coroner."
Page: 19:
Current Language: "Although the Pulaski County coroner told us that
he had referred 85 cases of suspected resident neglect from July 1999
through December 2003, Arkansas state survey agency officials said that
they had received and investigated fewer than half."
Page: 19:
Suggested Language: "Although the Pulaski County coroner told us that
he had referred 85 cases of suspected resident neglect from July 1999
through December 2003, Arkansas state survey agency officials told us
that they had received only 35 referrals from the Pulaski County
coroner IN that time period, and investigated all of the 35 referred."
The above statements, it should be noted, do not reflect all of the
similar statements in the report.
Our concern is two fold:
1. These statements can be interpreted to mean that the State Survey
Agency (SSA) received all of the claimed 85 referrals, but investigated
less than half. This is incorrect. The SSA investigated all referrals
received from the Pulaski County Coroner.
2. Related to number 1, above, is the issue of the supposed weight given
to the number of referrals that the Pulaski County coroner claims to
have made. First, the language of the above examples, and throughout
the report, is such that it appears that the GAO is validating the
statement of the Pulaski County coroner-and thereby claiming that the
numbers of referrals received by the SSA and the MFCU are false.
Second, there is no evidence presented in the report to validate such a
position. Quite simply, what makes the coroner's claims more credible
than either the SSA or MFCU? Why is the Pulaski County coroner's number
of referrals accepted at face value?
Two separate agencies of the State of Arkansas claim that neither
received the eighty-five (85) referrals claimed to have been made by
the Pulaski County coroner. Absent some independent verification of the
number, the report should be amended to reflect that the GAO was unable
to obtain independent verification of the number of referrals claimed
by the Pulaski County coroner.
It is possible that the GAO considers the following quote from page
twenty (20) of the report to be independent evidence to support the
claimed number of referrals by the coroner:
We found inconsistencies in agency and MFCU recordkeeping. For example,
the state survey agency told us that it had received four referrals on
the coroner's list but could not provide a copy of any complaint intake
forms or the results of its investigations for three of the four
referrals. While a MFCU official told us that three other referrals
were forwarded to it by the state survey agency, not the coroner, the
state survey agency had no record of these referrals.
If so, and in the interest of accuracy and fairness, the recordkeeping
of the coroner should be examined and any and all flaws documented.
Absent such contrast, the quoted text appears to have been inserted for
no other reason than to support the GAO's reliance - without
independent evidence - of the claimed number of referrals of the
coroner. This is particularly the case as the GAO investigator stated
to the state survey agency director and staff that the coroner's
recordkeeping made retrieval difficult - the impression being that it
was both deficient and exceedingly worse than that of the state survey
agency.
In addition, the report should be amended so that any possible
misinterpretation that the SSA did not investigate all referrals it
received is removed. What can be established is that the Pulaski County
coroner claims to have referred eighty-five cases. The SSA claims to
have received thirty-five (35). The MFCU claims to have received fifty
(50). There is no evidence that the SSA failed to investigate any case
it claims to have received - and no independent evidence that it
received more than the thirty-five (35) cases it claims.
Finally, the GAO draft report fails to accurately reflect the actual
circumstances of the referrals. The GAO provided the Office of Long
Term Care with a list of eighty-five (85) names of cases that the
Pulaski County coroner claimed to have referred to the state survey
agency. As our records reflected that only thirty-five (35) of the
names on the list were referrals from the Pulaski County coroner, the
Office of Long Term Care at the request of the GAO performed a record
review to see whether any of the remaining fifty (50) names appeared.
Of the remaining fifty (50) names, twenty-two appeared in the records
of the Office of Long Term Care and the Office of Long Term Care had
documentation that all of the cases were investigated.
While the Office of Long Term Care did not receive the eighty-five
referrals claimed by the Pulaski County coroner, the Office of Long
Term Care investigated fifty-seven (57) of the 85 names that appeared
on the Pulaski County coroner's list. Thirty-five (35) of those cases
originated from a referral by the Pulaski County coroner. The remaining
twenty-two (22) originated from referrals by another source. However,
of the twenty-two (22), nine (9) of the referrals were received prior
to the residents' deaths and investigations were completed prior to the
deaths. For the language of the GAO draft report to imply that the
Office of Long Term Care investigated less than half the referrals is
both inaccurate and misleading.
It is noteworthy that in 2004 the Office of Long Term Care received six
(6) referrals from county coroners; five of these referrals were made
by the Pulaski County coroner. Of those five referrals, one (1) was
referred to the Office of Long Term Care by the Pulaski County coroner
thirteen (13) months after the resident's death; the remaining four
were referred to the Office of Long Term Care by the Pulaski County
coroner from nine to eleven months after the deaths. Several months
before the GAO draft report was completed the Office of Long Term Care
informed the GAO that the untimely referrals had been received from the
Pulaski County coroner. The GAO investigators advised the Office of
Long Term Care director and staff that they were aware that the coroner
had not referred these five deaths occurring in 2003. The GAO made the
determination not to include these cases in their study or to include
any explanation regarding the cases untimely referrals. The Office of
Long Term Care never received an explanation regarding any reason for
the untimely referrals.
It should be noted that the Office of Long Term Care receives thousands
of complaints and Incident Reports (reports of specific long-term care
facility employee maltreatment of residents) each year. The Office
investigates each. To believe that the Office of Long Term Care simply
disregarded some of the alleged referrals from one source - absent some
independent verification - is not only illogical, it cast doubts on the
ultimate conclusions stated in the report. Certainly, the fifty (50)
disputed referrals did not constitute a significant increase in
workload as a percentage of overall complaints; in addition, thirteen
(13) of those disputed death referrals were investigated by the Office
of Long Term Care through referral from another source. We would,
therefore, appreciate the report being amended to correct this.
Compliance with CMS Processes - The Office of Long Term Care will not
address issues of whether CMS processes or regulations require change
or modification, and will let CMS address those issues. This Office
would like to stress, however, that for the time period of this study
the Office of Long Term Care has been among the national leaders in
citations for Immediate Jeopardy, Substandard Quality of Care, and
Actual Harm. We certainly do not claim perfection; we don't honestly
believe that can be claimed by any SSA. However, we strive at all times
to comply with CMS guidelines and requirements. When we find that we
are not meeting those guidelines and requirements, we take steps to do
so. A review of the SAEP/SPE performed by CMS annually on SSAs will
reveal that the Office of Long Term Care has either fully met CMS'
expectations concerning the processes discussed in the report, or took
the necessary steps to meet them.
While the Office of Long Term Care cannot claim perfection, it is our
opinion that the draft report - by addressing issues outside the
apparent scope of the study, such as survey predictability - unfairly
paints a picture of the state survey agency and its efforts. It should
be noted that the State of Arkansas, in addition to its adherence to
CMS requirements and guidelines, has taken independent affirmative
action to both improve the survey process and to improve quality of
care of residents. These include:
l. Increase in survey staff positions. In 2001, The Arkansas Department
of Human Services made a commitment to increase survey staff numbers
for the Office of Long Term Care, and carried through with that
commitment. This influx of additional surveyor positions meant that the
Office of Long Term Care oversight and compliance determinations of
facilities would not only be maintained, but would be strengthened.
2. Increases in the reimbursement to nursing homes. The State of
Arkansas has approximately doubled the amount of money paid for the
care of residents in nursing homes. A significant percentage of that
money - in excess of half - has gone to payment of direct care staff.
Facilities are now able to pay direct care staff more, and to provide
benefits that they were unable to provide in the past. This effort was
made to assist facilities in their retention of staff and to fight the
problems that come from both a lack of staff and high turnover.
3. Related to the increased reimbursement, the State of Arkansas
mandated minimum staffing requirements through legislation passed in
the 2001 legislative session. That law - found in Ark. Code Ann. § 20-
10-1401 et seq. - has resulted in increases in direct care staffing no
less than three times. Arkansas nursing home residents are now being
served by more direct care staff, and facilities can now provide pay
and benefits that will help retain that staff.
4. The Office of Long Term Care, through the Arkansas Department of
Human Services, is finalizing a contract with the Arkansas Foundation
for Medical Care (AFMC) for an innovative program to provide evaluation
and training to both facilities and the Office of Long Term Care. The
AFMC is the Quality Improvement Organization (QIO) for the State of
Arkansas. Under this contract, the AFMC will be provided data -
including survey documentation - to evaluate and locate areas in which
it can offer assistance to facilities. Likewise, the AFMC will evaluate
the Office of Long Term Care, and provide training to the Office in an
effort to further improve the Office's ability to perform its duties in
surveying facilities.
5. It is unclear how survey predictability is related to a state law
that can result in referrals for complaints. Complaint investigations
are conducted based upon strict guidelines that in turn are based on
the alleged seriousness and immediacy of harm - these timelines are
unrelated to surveys. Nevertheless, it should be noted that the state
survey agency has made successful efforts to reduce predictability of
surveys. However, the strict guidelines for investigation of complaints
means that there is very little that can be done to reduce
predictability of complaint investigations. If the allegation is
serious, the Office of Long Term Care must investigate within a few
days - if a facility is aware that the complaint has been made, it
follows that it will be able to estimate when the state survey agency
will appear with a high degree of accuracy. Again, however, we do not
understand how survey predictability concerns arise from a state law
that results in complaint investigations.
Thank you for this opportunity to provide our comments and suggestions
for this study. If you should have any questions about the statements
contained in this letter, please contact me.
Sincerely,
Signed by:
Carol Shockley, Director:
[End of section]
Related GAO Products:
Nursing Home Fire Safety: Recent Fires Highlight Weaknesses in Federal
Standards and Oversight. GAO-04-660. Washington, D.C.: July 16, 2004.
Nursing Home Quality: Prevalence of Serious Problems, While Declining,
Reinforces Importance of Enhanced Oversight. GAO-03-561. Washington,
D.C.: July 15, 2003.
Nursing Homes: Public Reporting of Quality Indicators Has Merit, but
National Implementation Is Premature. GAO-03-187. Washington, D.C.:
October 31, 2002.
Nursing Homes: Quality of Care More Related to Staffing than Spending.
GAO-02-431R. Washington, D.C.: June 13, 2002.
Nursing Homes: More Can Be Done to Protect Residents from Abuse. GAO-
02-312. Washington, D.C.: March 1, 2002.
Nursing Homes: Federal Efforts to Monitor Resident Assessment Data
Should Complement State Activities. GAO-02-279. Washington, D.C.:
February 15, 2002.
Nursing Homes: Success of Quality Initiatives Requires Sustained
Federal and State Commitment. GAO/T-HEHS-00-209. Washington, D.C.:
September 28, 2000.
Nursing Homes: Sustained Efforts Are Essential to Realize Potential of
the Quality Initiatives. GAO/HEHS-00-197. Washington, D.C.: September
28, 2000.
Nursing Home Care: Enhanced HCFA Oversight of State Programs Would
Better Ensure Quality. GAO/HEHS-00-6. Washington, D.C.: November 4,
1999.
Nursing Homes: HCFA Should Strengthen Its Oversight of State Agencies
to Better Ensure Quality of Care. GAO/T-HEHS-00-27. Washington, D.C.:
November 4, 1999.
Nursing Home Oversight: Industry Examples Do Not Demonstrate That
Regulatory Actions Were Unreasonable. GAO/HEHS-99-154R. Washington,
D.C.: August 13, 1999.
Nursing Homes: HCFA Initiatives to Improve Care Are Under Way but Will
Require Continued Commitment. GAO/T-HEHS-99-155. Washington, D.C.:
June 30, 1999.
Nursing Homes: Proposal to Enhance Oversight of Poorly Performing Homes
Has Merit. GAO/HEHS-99-157. Washington, D.C.: June 30, 1999.
Nursing Homes: Complaint Investigation Processes in Maryland. GAO/T-
HEHS-99-146. Washington, D.C.: June 15, 1999.
Nursing Homes: Complaint Investigation Processes Often Inadequate to
Protect Residents. GAO/HEHS-99-80. Washington, D.C.: March 22, 1999.
Nursing Homes: Stronger Complaint and Enforcement Practices Needed to
Better Ensure Adequate Care. GAO/T-HEHS-99-89. Washington, D.C.: March
22, 1999.
Nursing Homes: Additional Steps Needed to Strengthen Enforcement of
Federal Quality Standards. GAO/HEHS-99-46. Washington, D.C.: March 18,
1999.
California Nursing Homes: Federal and State Oversight Inadequate to
Protect Residents in Homes With Serious Care Problems. GAO/T-HEHS-98-
219. Washington, D.C.: July 28, 1998.
California Nursing Homes: Care Problems Persist Despite Federal and
State Oversight. GAO/HEHS-98-202. Washington, D.C.: July 27, 1998.
FOOTNOTES
[1] Ark. Code Ann. § 5-28-204 (Michie 2003).
[2] In the absence of autopsy information that establishes the cause of
death, we were unable to determine the extent to which unacceptable
care may have contributed directly to individual deaths. See GAO,
California Nursing Homes: Care Problems Persist Despite Federal and
State Oversight, GAO/HEHS-98-202 (Washington, D.C.: July 27, 1998).
[3] See GAO, Nursing Homes: Sustained Efforts Are Essential to Realize
Potential of the Quality Initiatives, GAO/HEHS-00-197 (Washington,
D.C.: Sept. 28, 2000) and Nursing Home Quality: Prevalence of Serious
Problems, While Declining, Reinforces Importance of Enhanced Oversight,
GAO-03-561 (Washington, D.C.: July 15, 2003).
[4] Starting in August 2003, Missouri nursing homes were required to
report resident deaths to county officials, such as coroners. The
Missouri law, however, does not require coroner investigations of the
deaths. See Mo. Ann. Stat. § 198-071 (West 2004).
[5] A list of related GAO products is at the end of this report.
[6] Arkansas has two state survey agencies--the Office of Long Term
Care in the Department of Human Services and the Division of Health
Facility Services in the Department of Health. The former is
responsible for surveying nursing homes and the latter surveys other
providers who participate in Medicare and Medicaid, such as hospitals
and home health agencies. In this report, we use the term state survey
agency to refer to the Office of Long Term Care.
[7] CMS generally interprets these requirements to permit a statewide
average interval of 12.9 months and a maximum interval of 15.9 months
for each home.
[8] Death investigations often vary considerably by jurisdiction
(whether state, county, district, or city). Some states use a medical
examiner (21 states and the District of Columbia), some use a coroner
(11 states), and some use a mixed system of medical examiners and
coroners (18 states). Medical examiners and coroners are responsible
for investigating sudden or violent deaths and for providing accurate,
legally defensible determinations of the causes of these deaths.
Generally, medical examiners are licensed physicians and are appointed,
while coroners need not be physicians and are elected.
[9] When enacted, the Arkansas law required a referral if there was
reasonable cause to suspect that the resident died of abuse, sexual
abuse, or neglect. In 2003, the law was amended to substitute
maltreatment for these terms. Coroner referrals did not actually
characterize the specific nature of each finding in relation to one of
the statutory categories for referral. In the absence of such
characterization, we characterize each referral under the law as based
on a finding of neglect.
[10] Most states have laws that require suspicious or unusual deaths
(or those for which the cause is unknown or unnatural) to be reported
to a state or local authority, and some specifically require the
reporting of deaths resulting from abuse or neglect. Prior to 1999,
Arkansas law required the reporting of cases in which there was
reasonable cause to suspect that any adult had died of abuse, sexual
abuse, or negligence.
[11] MFCUs were authorized by the Medicare-Medicaid Anti-Fraud and
Abuse Amendments, Pub. L. No. 95-142 §17, 91 Stat. 1175, 1201-1202
(1977). Currently, 47 states and the District of Columbia participate
in the Medicaid fraud control grant program.
[12] According to the state survey agency, only four referrals were
received from coroners outside of Pulaski County, and we excluded these
from our analysis. We did not contact Arkansas's 74 other coroners to
determine whether any additional referrals were sent. Although
assessing the effectiveness of the state's law was beyond the scope of
our review, MFCU officials told us that few other coroners investigate
nursing home resident deaths and that nursing homes may not be
reporting all deaths to their local coroners as the state law requires.
For example, MFCU officials told us that there were eight deaths in one
home in the course of 1 month that were not reported to the coroner or
investigated and at least one decedent was sent to a funeral home owned
by the coroner. The Arkansas statute does not provide sanctions for
failure to report nursing home deaths to coroners or for coroners'
failure to investigate reported deaths. They also told us that all but
two of the state's 75 county coroners are elected; therefore, most
state coroners are not accountable to other county or state officials.
The Pulaski County coroner is appointed by the county's chief executive
officer.
[13] Two of the coroner's three staff members are licensed paramedics.
[14] Although the referrals sometimes identified multiple care
problems, we attempted to identify the primary cause for each of the
coroner's 86 referrals. Overall, 88 percent of decedents with pressure
sores had stage III/IV pressure sores or necrotic or gangrenous tissue
(see table 3). Fifty-seven percent of decedents with pressure sores had
three or more pressure sores.
[15] The risk factors for pressure sores include confinement to a bed
or chair, inability to move, loss of bowel or bladder control, poor
nutrition, and lowered mental awareness. Actions to prevent pressure
sores include repositioning the patient every 1 to 2 hours; using a
special pressure-relieving mattress or chair pad; placing pillows or
wedges between the knees and ankles and under legs to keep the
patient's heels off of the bed; cleaning skin as soon as possible after
incontinence; and providing appropriate nutritional support.
[16] All but 5 of the 27 homes referred by the coroner were located in
Pulaski County. The residents from these 5 homes died in a Pulaski
County medical facility and, as a result, were referred by the Pulaski
County coroner. Three of the 27 homes with coroner referrals have since
closed.
[17] The body of a resident who died in this same home prior to
enactment of the 1999 Arkansas law was exhumed and the decedent was
found to have suffocated while tied to his nursing home bed.
[18] One of the 19 homes is a federal facility operated by the
Department of Veterans Affairs and is not subject to surveys by the
state survey agency.
[19] We excluded from our analysis cases for which a coroner's referral
was not received but the state survey agency indicated it had conducted
an investigation, primarily complaints filed by family members or
others. We excluded such cases because the focus of our analysis was
the state's disposition of coroner referrals, not a broader review of
the state's disposition of all complaints, regardless of source. Nine
of the survey agency's non-coroner complaint investigations were
conducted prior to the residents' deaths and may not have raised
concerns similar to those identified in the coroner's referrals.
Elsewhere in the report, we acknowledge seven of the survey agency's
non-coroner complaint investigations that involved allegations similar
to the coroner's.
[20] To help both the state survey agency and the MFCU identify all
coroner referrals made since July 1999, we provided a list that we
developed using the Pulaski County coroner's files. Both agencies used
this list to identify coroner referrals they received but were unable
to locate all 86 referrals.
[21] Five of the 27 homes, where the coroner identified 10 cases of
potential neglect, had no state survey agency or MFCU investigations.
[22] In March 2004, the coroner began requesting signed receipts.
[23] In addition, the state survey agency substantiated two non-coroner
complaints for decedents the coroner said he referred but which agency
officials indicated were not received. In one case, a family member
filed a complaint 6 days after a resident's death with allegations
similar to those in the coroner's referral. The resident broke both
hips when she fell out of bed. The state survey agency investigated the
family member's complaint twice. According to state survey agency
officials, a review of the initial investigation, which cited misuse of
restraints at the less than actual harm level, indicated the need for
another investigation. The second investigation cited two actual harm
deficiencies for shortcomings in resident assessment and failure to
prevent accidents. In the other case, state surveyors were at the
nursing home when a resident, attempting to burn off his restraints,
set himself on fire. Surveyors cited the home with several deficiencies
at the immediate jeopardy level.
[24] Although the state survey agency recommended termination of this
home in October 2000, CMS's Dallas regional office imposed a directed
plan of correction that included requirements that the home reduce the
number of Medicare and Medicaid residents by 50 percent within about 2
weeks and hire independent third-party consultants in the areas of
nursing services, pharmacy services, medical records and documentation,
behavioral intervention, and quality assurance, as well as correct all
conditions of immediate jeopardy. This approach gave the home
significant leeway in returning to compliance. For example, the state
survey agency was given the discretion to keep the home open if it
showed good faith in removing immediate jeopardy. However, the home did
not meet the terms of the directed plan of correction and thus was
terminated in early November 2000. The home reopened under new
ownership, new management, and a new name in July 2001 but did not
begin receiving Medicaid payments until June 2002.
[25] The decedents' deaths occurred from March 25, 2000, through April
13, 2000, and the state survey agency received the coroner's referral
for all four cases on April 25, 2000.
[26] A similar October 1999 complaint by family members was not
substantiated. Overall, at least 25 percent of the decedents referred
by the coroner were also the subject of complaints by family members or
others.
[27] The state survey agency recommended a $10,000 civil monetary
penalty. CMS reduced the penalty to $2,000, which the facility paid.
[28] Although federal guidance sets a high threshold of immediate
jeopardy for citing past noncompliance, the Arkansas state survey
agency's complaint investigation guidance indicates that past
noncompliance may be cited whenever the violation resulted in actual
harm or immediate jeopardy to a resident.
[29] Nationwide, past noncompliance appears to be rarely used, cited in
less than 1 percent of standard surveys and less than 1 percent of
complaint investigations. During the last 4 standard surveys for each
nursing home nationwide, 204 instances of past noncompliance were cited
on about 63,000 surveys. Overall, about half of the state survey
agencies cited past noncompliance. The Arkansas state survey agency
accounted for about 10 percent of such citations.
[30] The state survey agency investigated but did not substantiate non-
coroner complaints for five decedents the coroner said he referred and
agency officials indicated they did not receive. The allegations in the
non-coroner complaints were similar to those contained in the Pulaski
County coroner's referrals. In one case, the survey agency referred the
complaint to the MFCU that requested an exhumation of the decedent's
body for an autopsy. Before the autopsy results were obtained, the
survey agency determined that the complaint was unsubstantiated. In a
second case, the survey agency received the complaint alleging a fall 3
weeks before the resident's death; the complaint was investigated 6
months after the resident's death but without the benefit of the
coroner's photos of the decedent's bruises. For a third case, nursing
home staff filed two complaints before the resident's death alleging
poor pressure sore care. When he died, the resident had 12 pressure
sores, but again, surveyors lacked the coroner's photos of the
decedent.
[31] Although neither the MFCU nor the state survey agency
substantiated the alleged neglect for 8 of the same 14 referrals, we
believe that several factors raise questions about the thoroughness of
some MFCU investigations. In 2000, MFCU investigators were authorized
to declare cases inactive and some cases were closed on the basis that
medical records documented the receipt of necessary care, without a
thorough review of the records by a registered nurse. (The MFCU now
employs two nurse investigators who typically perform a review of
medical records intended, in part, to identify inconsistencies and gaps
in documentation of resident care.) In addition, the MFCU did not
pursue every case it received, citing the difficulty of proving that
neglect by a facility was the direct, natural, or probable cause of a
resident's condition and because the agency's resources were limited.
[32] To support its "not substantiated" finding, the state survey
agency cited several factors, including documentation that the facility
was following the plan of care, the fact that the pressure sores were
reported to have developed in the hospital, or that the family wanted
to be conservative in the care provided. Because of concern about the
basis for some "not substantiated" findings, we asked our expert to
review seven cases in which the seriousness of the decedents'
conditions as documented in the coroner's photos raised a question
about the validity of the conclusions reached during the state survey
agency's investigations. This assessment was based on a review of the
various investigative reports, medical records we obtained, and photos
of decedents taken by the coroner. All of the decedents had serious
pressure sores, and four referrals involved two nursing homes. In two
of the seven cases reviewed, our expert found that there was not enough
documentation to draw a definitive conclusion.
[33] Pressure sores can be painful. For example, a physician more than
quadrupled the amount of pain medication for one decedent over about a
two and one-half month period because of pressure sores at the base of
her spine. We found that pain management was a problem in other coroner
referrals. For example, the medical records associated with one coroner
referral noted that the resident had complained to her daughter of foot
pain. When the daughter removed her mother's shoe and sock she found
bloody toes from pressure sores that the home had failed to document.
Two other decedents did not receive pain medication as prescribed.
[34] The state's February 2000 survey was conducted to allow this
nursing home to again serve Medicaid beneficiaries. The home had been
terminated from participation in the Medicaid program in January 2000
for poor performance after an October 1999 survey that found actual
harm and immediate jeopardy deficiencies in quality of care.
[35] GAO, Nursing Homes: Complaint Investigation Processes Often
Inadequate to Protect Residents, GAO/HEHS-99-80 (Washington, D.C.: Mar.
22, 1999).
[36] See Appendix III, amended attachment I to CMS comments.
[37] CMS guidance instructs state survey agencies to establish
complaint prioritization time frames for serious complaints in terms of
working days, not calendar days. If a complaint judged to be immediate
jeopardy was received on a Saturday, the survey agency would not be
expected to initiate its investigation until Tuesday, 4 days after
receipt of the complaint.
[38] State survey agency officials were unable to identify the
investigation priority for 2 of the 36 coroner referrals. However, over
3 months elapsed between the time the state survey agency received and
investigated one of these referrals. For the second referral, the
survey agency could not identify the date of receipt, but nevertheless
completed its investigation within 12 working days of the resident's
death.
[39] Our analysis includes 35 of the 36 coroner referrals because the
survey agency was unable to provide the date of receipt for 1 referral.
[40] GAO/HEHS-98-202, GAO/HEHS-00-197, and GAO-03-561.
[41] See GAO-03-561. This analysis was based on states' most recent
surveys in OSCAR as of April 9, 2002 and represents a reduction from
prior surveys when about 45 percent of Arkansas's standard surveys were
predictable (38 percent nationwide).
[42] In contrast, fewer surveys nationally were predictable for the
former (13 percent) than the latter (21 percent) reason.
[43] GAO/HEHS-98-202.
[44] GAO/HEHS-00-197.
[45] GAO/HEHS-98-202.
[46] In 1999, we reported that CMS guidance on past noncompliance did
not require the imposition of a sanction, even for a deficiency that
contributed to the death of a resident. CMS concurred with our
recommendation to revise its guidance and on May 28, 2004, instructed
state survey agencies to impose a civil monetary penalty when citing
past noncompliance. See GAO, Nursing Homes: Additional Steps Needed to
Strengthen Enforcement of Federal Quality Standards, GAO/HEHS-99-46
(Washington, D.C.: Mar. 18, 1999).
[47] No plan of correction is required because the deficiency is
assumed to have been corrected and no longer exists. However, CMS could
require the facility to document how it discovered the deficient
practice and the corrective action it took.
[48] A portion of CMS's comments was based on tables presented in
attachment 1 to its comments. Because the tables did not accurately
reflect the coroner's cases discussed in our report, CMS submitted an
amended attachment 1 which we have substituted for the original. CMS,
however, did not make corresponding changes on pages 6 and 7 of its
comments.
[49] GAO-03-561.
[50] CMS officials told us that the pressure sore guidance is expected
to be released before the end of 2004.
[51] Our elapsed time calculation differs from that of CMS because we
relied on copies of signed receipts provided by the coroner. These
receipts indicated that the state survey agency received all of these
referrals either on April 13, 2004, or on April 14, 2004, rather than
on the dates indicated by CMS in amended attachment 1 to their
comments. We believe that the approximately 2-week disparity between
the dates shown on the signed receipts and the dates that the survey
agency said it received four of these referrals raises a question about
how promptly the survey agency registers complaints in its tracking
system. Because the coroner did not begin requiring signed receipts for
referrals of suspected neglect until March 2004, we were unable to
determine if there were similar delays in registering the 36 coroner
referrals received prior to 2004.
[52] The coroner informed us that these five referrals were delayed
while awaiting final autopsy reports, which can take 8 to 9 months to
complete.
[53] These averages and ranges differ from those CMS provided in its
comments because CMS included the five 2004 coroner referrals that were
outside the scope of our review.
[54] Arkansas state survey agency officials told us that they did not
investigate one coroner referral they had received. We excluded this
referral from those received by the survey agency.
[55] Although the state survey agency said it received coroner
referrals for 2 of the 5 cases, we excluded the two from our analysis
of referrals investigated by the state survey agency because it could
provide no documentation of its investigation, including the outcome.
[56] See GAO/HEHS-98-202, GAO/HEHS-00-197, and GAO-03-561.
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