Federal Study Finds Nursing Home Enforcement Inadequate
January
31,
2006
A recent study by the Federal Government has confirmed that enforcement of nursing home regulatory standards is inadequate. The Officer of the Inspector General recently published a long-term care study entitled, "State Referrals of Nursing Home Enforcement Cases," which evaluated state surveying facilities effectiveness in enforcing nursing home regulatory
standards.[1]
The study found that cases involving significant regulatory violations are not being referred to CMS (Center for Medicare) under applicable law. As such, these facilities are avoiding the sanctions that are normally associated with regulatory violations.
Under CMS’s policy, states must pass on to federal regulators for enforcement those cases which involve either actual or potential death or serious injury, cases involving a pattern of serious deficiencies, or previous failures to correct deficiencies within a certain time period (See State Operation Manual, section 7305). The study found that many of these cases are not being referred to CMS, as required by law. It noted that 40% of cases not being referred to authorities for enforcement purposes were the result of state problems reviewing facilities non-compliance histories. The report also attributed a significant portion of the apparent non-referrals to a break-down in the system that cause CMS to not recognize certain nursing facilities enforcement cases referred by states. States have documented, in some situations that they provided the referral to CMS, but the agency staff reported that such referral was never received.
"This trend of lack of enforcement represents a serious problem for nursing home residents in the United States," notes attorney Jeffrey Downey, partner at Robins Kaplan Miller & Ciresi L.L.P. The federal government through OBRA (Omnibus Reconciliation Act of 1987, 42 C.F.R. § 483.10, et seq.) enforces standards for good care in nursing homes as a condition to the receipt of federal funding. The teeth in the federal government’s enforcement claim is the ability to enforce these regulations through monetary sanctions and other disincentives that potentially could cut off federal funding to nursing homes. "This study shows that the federal government is not doing its job of enforcing these regulations against some of the worst violators," Downey explained. If the Federal Government is successful in its tort reform initiatives, there could be virtually no effective checks on the quality of care delivered to the most vulnerable segment of our society. Moreover, the annual surveys of the nursing homes are just a snapshot of the care that the facility is providing at the time of the survey. The fact that a nursing home is not sanctioned even after an adverse Department of Health Survey does not mean the nursing home is providing good care. The Federal Government is not effectively enforcing sanctions against those nursing homes that have been already been identified by the state as a serious violator of federal regulatory standards. This means consumers who place their loved ones in nursing homes cannot rely on their regulatory violations (or lack thereof) as an accurate indicator of quality care.
[1] A copy of the Officer of the Inspector General report can be downloaded from: http://oig.hhs.gov/oei/reports/oei-06-03-00400.pdf.
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