Abuse Reporting and Owner Background Checks Loom Large in Elder Justice Hearing

Background checks for staff and better reporting for nursing home abuse loomed large in a U.S. Senate Committee on Finance hearing held Tuesday, with consumer advocates and industry representatives confirming the findings of a new report that revealed oversight gaps by the Centers for Medicare & Medicaid Services (CMS) around nursing home abuse.

The report, released from the U.S. Government Accountability Office (GAO) on Tuesday, showed a 103% increase in deficiencies related to abuse between 2013 and 2017.

“The four million people that live in nursing homes need and deserve exceptional care,” Mark Parkinson, the president and CEO of the American Health Care Association, which represents more than 10,000 of the approximately 15,000 nursing homes in the U.S., said at the panel. “And no level of abuse and neglect is acceptable. None.”

Though abuse in nursing homes is “relatively rare,” abuse deficiencies cited in nursing homes rose from 430 in 2013 to 875 in 2017, with the largest increase in severe cases, a GAO analysis of data from the Centers for Medicare & Medicaid Services (CMS) found. In addition, there are gaps in CMS oversight of abuse, including processes that can lead to delayed or missed referrals and not enough information collected on facility-reported incidents, the GAO report said.

This report came three months after the GAO found several issues with nursing home abuse investigations in the state of Oregon, where the state’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.

One of the most significant challenges in ending elder abuse is background checks; there are currently 13 states that have not implemented a national background check for Medicaid providers, Megan Tinker, a senior advisor for legal review at the office of counsel to the Inspector General at HHS, said during the hearing. She cited an Office of Inspector General (OIG) report that found issues with the Medicaid program in this respect.

Some of those states are in the process of implementing these checks, Tinker noted. But some loopholes remain.

“The first loophole is that right now state Medicaid programs when enrolling a provider that’s high-risk can, in fact, if the provider is already enrolled in Medicare, forgo a background check,” she said at the hearing. “However that’s even if Medicare themselves did not perform a background check.”

That means someone could become a Medicaid provider without any background check in place, she said, and CMS did not concur with the recommendation to close the loophole.

The other issue is that when background checks are being performed, providers have to self-attest ownership, due to the need to look at ownership structures and who is responsible for providing care, Tinker testified.

“Many states do not verify who the owners are, which means that there could be criminals who are part of the ownership structure that we would have no awareness of and who would not have background checks performed,” she said.

Parkinson touched on the issue of opaque ownership structures in a recent podcast interview with Skilled Nursing News, noting the challenge of balancing ownership disclosure with liability issues.

“There’s an enormous variance in what states require to approve a change of ownership,” he said in the interview. “Some states have a very thorough vetting process, where they make sure that you’ve got experience in running nursing homes, you have a capital structure so that if things go wrong, you can keep the doors open and continue to provide quality care.”

But there are other states running a nursing home requires very little approval, he noted.

That question of ownership oversight was raised in testimony by Lori Smetanka, the executive director of The National Consumer Voice for Quality Long-Term Care. She called on the government to establish standards and oversight for facility ownership and operation, as well as for more corporate-level accountability.

“Currently no meaningful federal criteria exist for determining who is eligible to receive Medicare and Medicaid certification, with CMS largely relying on state licensure processes,” she said in her testimony. In many states there is no evaluation of an entity’s financial or management capacity to successfully operate these facilities and provide quality care.”

Regarding background checks, Parkinson called for AHCA members to receive access to the National Employee Data Bank to learn when potential employees with criminal backgrounds crossed state lines. In addition, SNFs need help finding employees, he said, and there are ways – such as immigration reform and loan forgiveness programs – that the government can help in this regard.

He also recommended that CMS include resident satisfaction in the Five Star Rating System for nursing homes and provide clear definitions of what constitutes abuse and neglect.

“Nursing homes have made substantial progress, and we can do more,” he said at the hearing. “Working together, we can improve the lives of millions of people.”