OIG Calls on CMS to Crack Down on Abuse in Nursing Homes, Other Settings

The federal government’s top health care watchdog on Wednesday released a new report accusing the Centers for Medicare & Medicaid Services (CMS) of not doing enough to monitor and punish elder abuse in nursing homes and other settings.

The Department of Health and Human Services (HHS) determined that CMS could perform detailed analyses of diagnosis codes correlated with elder abuse or neglect, with the goal of protecting seniors and punishing bad actors — but simply does not.

“The lack of a data extract impeded the ability of CMS or of public and patient safety organizations to pursue legal, administrative, and other appropriate remedies to ensure the safety, health, and rights of Medicare beneficiaries,” the HHS Office of the Inspector General (OIG) wrote in its report.

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The OIG embarked on the study after issuing an August 2017 Early Alert to Medicare providers, alleging that CMS did not have sufficient protocols in place to identify and report potential cases of abuse and neglect in nursing homes; the watchdog arm also looked to build on a February 2014 report about adverse events in nursing homes.

“We performed this review because of our preliminary findings regarding Medicare beneficiaries residing at skilled nursing facilities,” the OIG noted. “Those findings were troubling enough that we expanded our review to include all Medicare beneficiaries rather than just those Medicare beneficiaries residing in SNFs.”

In this most recent analysis, OIG officials looked at nearly 35,000 claims — both inpatient and outpatient — that included at least one of 17 diagnosis codes associated with mistreatment, such as sexual and physical abuse and general neglect. Based on a representative sample of that data, which consisted of 100 claims filed between January 2015 and June 2017, the OIG determined that 3,330 of the incidents occurred in some type of medical facility, and more than 9,000 were associated with an incident that was not reported to law enforcement.

In discussions with officials about the results, the OIG determined that CMS does not specifically track data related to these diagnosis codes on its own — a key area in which the agency must improve, according to the OIG report.

“CMS and law enforcement cannot adequately protect victims of abuse and neglect from harm if they do not know the harm is occurring,” the OIG concluded. “Accordingly, CMS’s failure to use all Medicare claims data represents a missed opportunity to identify potential cases of abuse or neglect.”

In its final recommendations, the OIG indicated that CMS should periodically sample claims data in order to identify potential instances of neglect and abuse, then make that data available to state survey agencies and other local authorities; the OIG also called on officials to strengthen existing federal requirements around adverse event reporting and tracking.

In response, CMS disagreed with most of the OIG’s assessment.

“Of note, over 80% of the sample cases OIG identified in their audit occurred in a home or public place, which do not fall under CMS’s jurisdiction for federal oversight,” CMS administrator Seema Verma wrote in a memo to the OIG.

Source: HHS OIG

Performing occasional samples of Medicare claims data would also not allow for timely interventions, Verma alleged, noting that providers have up to a year to submit claims.

“While CMS shares the OIG’s goal of improving the reporting of cases of potential abuse and neglect, CMS continues to prioritize its oversight of surveys and complaint work done by the state survey agencies to address the time-sensitive nature of instances of potential abuse and neglect,” Verma wrote.

That said, Verma reported that CMS is working to determine how claims data regarding specific diagnosis codes could potentially help curb abuse and neglect in nursing homes. Officials are also reviewing current regulations for areas where reporting requirements for Medicare-certified health care providers can be strengthened, though Verma noted that significant changes to federal law would require an act of Congress.

The American Health Care Association, while acknowledging that nursing home residents only accounted for a tiny fraction of the abuse cases identified in the OIG’s report, welcomed the call for greater oversight.

David Gifford, the trade group’s senior vice president of quality and regulatory affairs, said that “even one case is too many” in a statement provided to SNN.

“More work is needed to reduce those reports to zero,” Gifford said, adding that many of the facilities included in the OIG analysis weren’t even aware that the specific situations merited a report to CMS under current rules. “The current CMS definition is of neglect is vague and creates confusion about what should be reported.”

LeadingAge, which represents non-profit senior housing and care operators, expressed a similar sentiment Wednesday, pointing to its members’ efforts to bolster compliance and agreeing with the OIG’s recommendation for CMS to continue training local state survey agencies.

“Our goal is for every nursing home in the country to be a place where any of us would be willing to live if we needed the level of care nursing homes provide, and that elder abuse and neglect in the broader community be identified, addressed, prevented and taken as seriously as are concerns about congregate settings,” LeadingAge president and CEO Katie Smith Sloan said in a statement.

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