GAO: CMS Must Strengthen State-Level Oversight of Skilled Nursing Facilities

For at least 15 years, the Centers for Medicare & Medicaid Services (CMS) failed to deal with gaps in the federal oversight of nursing home abuse investigations in Oregon, the U.S. Government Accountability Office (GAO) determined in a management report released on Monday — and officials want a review of state-level rules nationwide.

CMS oversees the work of state survey agencies (SSAs), which conduct annual evaluations of nursing homes to ensure they’re meeting the standards of resident care and safety. It also enters agreements with state survey agencies to monitor compliance with those standards; the GAO began reviewing the agency’s work in overseeing nursing home abuse in October 2017.

Over the course of its investigation, GAO officials became aware that Oregon’s Adult Protective Services (APS) was investigating complaints and facility-reported incidents of abuse in nursing homes — despite not being trained to investigate abuse under federal nursing home regulations.

And abuse investigated by APS, which is part of the state’s Department of Human Services (DHS) but separate from its survey agency, is not reflected in federal nursing home reporting to consumers, and it does not result in federal enforcement action, the report noted.

“From at least the early 2000s through October 29, 2018, the Oregon survey agency did not investigate all allegations of abuse in nursing homes that came from complaints or facility-reported incidents — some of those, including allegations of sexual, physical, and mental/verbal abuse, were instead investigated by Oregon’s APS, and the results of those investigations were not shared with CMS,” it said.

Oregon has 135 nursing homes that care for about 7,000 residents as of December 2018, the report said.

CMS became aware of Oregon’s use of APS in investigating complaints and facility-reported incidents of abuse — rather than the survey agency — in July 2016, current officials told the GAO. The officials said that they conducted additional analysis to understand the issue and had an on=site visit where they informed the survey agency in Oregon that it was not meeting the requirements of its agreement with CMS.

But evidence suggests that CMS was previously aware of the problem in the early 2000s, and its oversight staff either did not detect or follow up with the Beaver State regarding its noncompliance. Oregon DHS officials said CMS had been aware of their practices for many years, and the state’s methods of investigating abuse were noted in a 2003 GAO report.

CMS told the GAO that it has not seen indications of other states being out of compliance for failing to investigate all complaints and facility-reported incidents of abuse, but their current approach for overseeing survey agencies doesn’t examine that issue, the GAO report said.

Oregon officials told the GAO that as of this past October 29, the Oregon survey agency amended its policies to formally assume responsibility for all incident investigations. But the GAO stressed that the resulting gap in oversight has left a permanent mark.

“While transitioning responsibility of all nursing home investigations to the survey agency is an important first step, Oregon’s longstanding non-compliance with CMS complaint and facility-reported incident investigation requirements means that CMS does not have information on more than 15 years of complaint and facility-reported abuse incidents in Oregon,” the report said.

Because CMS has not checked that other state survey agencies are responsible for investigating nursing home complaints and facility-reported incidents, and because it has not incorporated APS information into its oversight efforts, its reporting on abuse in nursing homes in Oregon will remain incomplete, the GAO said.

It recommended that CMS take three actions:

• Evaluate state survey agency processes in all states to ensure that they are meeting federal requirements for oversight of complaints and facility-reported incidents.
• Identify options for capturing information from Oregon’s APS investigations of such incidents, and incorporate that into oversight of the state’s nursing homes.
• Clearly communicate the lack of data on nursing home abuse in Oregon to consumers on the Nursing Home Compare website.

The Department of Health and Human Services (HHS), which oversees CMS, reviewed a copy of the GAO’s report and said that it concurred with the three recommendations. HHS said it would take steps to confirm that states are using the appropriate personnel to report abuse complaints and facility-reported incidents.

The department also directed Oregon state survey agency officials to come up with a plan for identifying APS cases that need further investigation. In addition, HHS said it would post a notice on Nursing Home Compare directing consumers to Oregon’s APS website for details on previous complaints until it can complete the data for cases in need of investigation.

The report was released the same day that CMS administrator Seema Verma ordered a federal review of federal nursing home regulations. In a blog post announcing the move, she also touted her agency’s work to strengthen the SSAs and improve consistency across all 50 states, noting that enforcement of federal regulations has been uneven over the years.

“Some states frequently identify serious issues in nursing homes, while others don’t identify concerns with the same seriousness or severity — including application of penalties,” Verma wrote. “Residents deserve consistent nursing home quality, regardless of location, so CMS is revising our oversight of SSA performance.”