Resident Advocate: Nursing Home Fines Must Increase to Improve Care, Prevent Harm

Between a new Medicare payment model and increased scrutiny on nursing home safety from the federal government, 2019 may go down as a watershed year for skilled nursing regulations.

But at least one patient advocate says the government — particularly under the Trump administration — hasn’t gone far enough.

Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, has worked on behalf of seniors’ rights since 1977, when she first joined the National Senior Citizens Law Center, now known as Justice in Aging.

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She continued her work at the CMA in 2000, and most recently wrote a pair of pieces critical of nursing home regulators. In July, Edelman suggested that the Centers for Medicare & Medicaid Services (CMS) should consider eliminating quality measures from its five-star nursing home rating system, arguing that they can mask problems in the other domains. The previous month, she released an analysis questioning whether CMS improperly promoted underperforming SNFs off of the Special Focus Facilities list, its classification for the 88 most troubled nursing homes in the country — and itself the subject of national attention in recent weeks.

SNN spoke with Edelman to learn more about her perspective on the industry as a resident advocate, and to discuss what measures she thinks both operators and the federal government should take to improve care and prevent

From your point of view, what are some of the biggest issues around quality and transparency? What should the industry focus on?

The biggest problem is always staffing, and now we’re seeing more and more evidence that the problems that residents and their families have been talking about for years are true — from the new report in Health Affairs about staffing — that the staffing has been over-reported when facilities self-reported. During the survey, it was higher than actually true. Staffing on weekends goes down, and staffing goes up when there’s going to be a survey. That’s what people have been saying for years, and that’s what the new data documented. So we’re troubled.

The most important predictor of quality of care is the staffing, and we’ve got serious staffing problems: not enough professional nurses in nursing homes, and not enough paraprofessional people, either — the nurses aides who do most of the hands-on work.

It seems like an intractable problem. Operators always say: Employment is high, wages are rising, and we can’t compete against retail and service industry jobs.

It’s a very hard job to be a nurse aide. We’ve seen studies over the years that when the unemployment rate is low, staffing goes down, and death rates in nursing homes go up. There’s a direct correlation. It’s really frightening.

That’s the paraprofessional staff. The professional nursing staff is a different question, though. The professional nurses — there are a lot of people who have registered nurse degrees. They are registered nurses, but they don’t want to work in nursing. And that’s a problem. We need to get some of those people to come back into the field.

There’s this perception that the nursing home is the minor leagues, where you pay your dues and then move up to a more “exciting” environment.

But they’re also responsible, on their license, for what the nurse aides do, and that’s a challenge for a lot of professional nurses. But there are people who really like this. They like the continuity of working with residents and their families. They really get to know people. It can be a very wonderful place to work if you like older people and want to talk to their families and get to know them. But maybe it’s not the status job that major surgery would be.

But I think a lot of people would like it and should like it, because it’s important work — meaningful work.

Your analysis of the five-star ratings was an interesting counterpoint: People in the industry like pointing to their quality ratings, especially amid the release of the “secret” candidates list — but you disagreed with the efficacy of that information. What information should be available to consumers?

The problem is, of course, is that people are not planning in advance, usually, to go to a nursing home. It’s usually done in a crisis situation, when somebody’s in the hospital, and the physicians and the nurses and the hospital are are saying: “Your mother can’t go home. She needs to get some rehab for a while, needs to go to a nursing home — and you’ve got to go immediately.” So people are not actually looking at Nursing Home Compare to make decisions. Mostly, they can’t do it, because it’s just done too quickly, too much in a time of crisis.

But we want the information to be accurate. The surveys, from our perspective, totally under-cite, under-code deficiencies — things are called “no harm” that we would call “very serious harm.” Over 95% of the deficiencies are called no harm, so that’s a problem there.

We think the survey is a useful thing to look at, and the staffing now is much more accurate than it ever was before, when it was self-reported, but the quality measures are still primarily self-reported, and they’re not audited or edited. I think it’s troubling to have them used in the rating system because facilities can bump themselves up for their total score if they have a five in quality measures. There’s no correlation between quality measures and poor facilities.

I’ve been looking at this for a long time, and I’ve always looked at the Special Focus Facilities, because we don’t do a good job with them. Everybody — the state and the federal government — have collectively decided that these are among the most poorly performing facilities. If we don’t do a decent job with them, we’re certainly not doing a decent job anywhere in the whole regulatory system.

The ’87 reform law, the enforcement part of the law was intended to say: We don’t want to have just termination as the sole tool that a state or CMS has when there’s a facility with non-compliance. We want a range of enforcement actions that the government can take. There are smaller problems that you want to deal with quickly, get the facility’s attention, and then hope it doesn’t get to be big problem.

When the law was passed, the fines went from $50 to $10,000 a day. That’s a big range. That’s what we wanted to see, but the enforcement system, in fact, looks like what the Institute of Medicine said in 1986 [when] it was trying to change. It’s not the initial noncompliance, it’s for failure to correct. And now with the changes in the current administration, it’s pretty much come to a standstill. There’s hardly any enforcement going on, really. The average fine is $9,000. That is very minor for an industry that has multi-billion dollars, $9,000 is not much of anything.

When the Institute of Medicine wrote its report in 1986, it was quite an extraordinary report. One of the things they did was ask state survey agencies: What’s the way to get changes? What works?

Well, the answers are things like: You want to have whatever the penalty is, whatever the consequences, happen quickly, not years and years after the fact, but a quick response — and it should be public, and it should be appropriate to the level of noncompliance. But the amount of the penalty should be more than the cost of compliance, otherwise noncompliance is the cost of doing business.

So Illinois’s new law, part of the budget bill, put in sanctions for not meeting the state staffing requirements, and they finally say 125% the cost of the nurse the first time. The second offense is 150% — trying to say that it’s got to be more than actually hiring the staff that you need. That’s what we think enforcement should be.

It’s interesting that you bring up care transitions — people on all sides of the equation seem dissatisfied with it. How do you think it should be streamlined?

That’s an interesting question. I know hospitals feel they’re not supposed to be steering people, so that’s a problem. But even in ACOs, they don’t even work with the nursing homes necessarily that are in their network. It’s a weird situation. Beneficiaries do have the right to choose. They have the free choice of provider, except they don’t know where to go.

I don’t think there’s an easy answer to that question, but you’re right — it’s a critical question, and the facility that the family chooses can be tremendously important in terms of what happens to the resident. Does the person actually get the rehab and go home, or does that person become a long-stay resident and stay until the end of life? Not everybody is going to be able to go home, but that’s obviously the goal for many people.

But I don’t know if there’s a simple answer to transitions, as important as that question really is. People can try to call the local ombudsman, but they’re also circumspect about what’s going on — they don’t want to be steering people. So it’s difficult.

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