Former CMS Chief: Feds Must Reimagine Nursing Home Enforcement with Sharper Sticks — and Smarter Carrots

The discussion of how to improve nursing homes, especially in the wake of the still-unfolding COVID-19 tragedy, tends to divide observers into two broad camps: the industry partisans who call for more collaboration from the federal government and better funding, and the sharp critics who insist regulation should primarily — if not exclusively — take the form of steeper fines and other punitive actions.

Industry trade groups, for example, continue to call for more federal funding to combat the still-significant strains associated with personal protective equipment (PPE), staffing, and cratering Medicare revenue.

Resident advocates counter that nursing homes, at least on the real estate side of the equation, have plenty of money to cover those expenses, and that the Centers for Medicare & Medicaid Services (CMS) should fine the owners into better compliance.


“Nursing homes have responsibility for training their own staff, with occasional assistance from federally funded Quality Improvement Organizations,” Justice in Aging directing attorney Eric Carlson wrote in his dissenting opinion on the recent White House coronavirus task force report. “For years, nursing home lobbyists have attempted to degrade this model.”

Carlson dismissed the commission’s conclusions that CMS must do more to provide on-the-ground support to nursing homes as “fanciful.” Even CMS administrator Seema Verma has placed the onus squarely on leaders within the industry.

“Ultimately, the ownership and management of every nursing [home] must take it on themselves to ensure their staff is fully equipped to keep residents safe,” Verma said in a statement last week encouraging operators to enroll employees in an online training program.


For former acting CMS administrator Charlene Frizzera, the answer lies somewhere in between. For one, she agrees that the current fine structure can make it easy for operators to move past issues without fully addressing them.

“The fines aren’t always the answer to the problem — they can pay the fine and move on,” Frizzera told SNN. “The money isn’t really as much of an incentive as putting them out of business would be.”

But in her view, the areas that CMS targets for improvement and correction must evolve with the changing face of senior care in America.

“There should be more enforcement. I totally agree with that,” she said. “But I think we need to look at enforcement in terms of what we’re enforcing, why we’re enforcing it, and what difference that makes.”

Frizzera served as acting administrator of CMS from the start of the Obama administration in 2009 to the appointment of Don Berwick the following year, though her career at the agency stretches back 30 years — including a stint as the regional administrator for CMS’s Philadelphia office, where she directly oversaw survey and certification for nursing homes across the Mid-Atlantic. She then went on to co-found CF Health Advisors, where she today serves as president.

Frizzera spoke with SNN on November 13 to discuss her vision for reform in the space — as well as what the government should do now to support the space during the ongoing crisis.

What do you think are the biggest areas that the government must focus on now to prevent a really tough winter ahead?

Two weeks ago, my answer would have been different than now. This recent surge has really just turned everything upside down again. I would say a short-term change actually is just continuing a lot of the waivers that they’ve put in place already, even though they had planned on getting rid of some of those waivers.

I think the other thing is really improving on performance. Even under the current surge, or the prior surge, there was a big emphasis on improving quality incentives, and money was actually distributed to nursing homes to improve some of those incentives — especially around improving infection and mortality.

That, to me, is the biggest area that we’re going to continue to see changes in — improving what the government can do to ensure improved performance and quality in the nursing home, given their current set of issues.

On reimbursement, the short-term change, again, it’s really just not imposing some of the reimbursement changes that are on the table. There is an overall 2% reduction across the board in health care for providers; I think that will not be imposed. There’s a budget-neutrality factor in the current payment system that probably won’t be imposed.

I think we’re still going to see a big focus on how to help nursing homes improve their performance, and how to help them keep the money that they have now in order to get us through this surge, and hopefully help us with lessons learned once we get past the surge.

What’s your take on those incentive-based stimulus awards? The government has positioned them as a way to link financial support with quality, but some academics have argued that it’s counterintuitive — since the worst facilities, in theory, need the most financial help.

Poor-performing facilities — that’s a good place to start, because they’ve always been a problem for CMS. When we have poor-performing facilities, the government works very hard to get them back up to speed, and it’s not as easy as it sounds to close down a nursing home. I think poor-performing facilities have always been a problem, and CMS always wants them to do better.

There’s little excuse today, though. While you need those facilities, they still should be performing better. That, to me, is why they’re giving the incentives — there’s no penalty today. These are just extra bonus payments. It is an opportunity for those poor-performing facilities to do better. You’re getting extra money; you’re getting a chance to really take a look at your facility and move forward.

I think people will say in the long run, poor-performing facilities shouldn’t exist. That’s part of the problem in the nursing home space today, the reputation that the industry gets because of the poor performing facilities. It hurts those who really are doing a good job. So I think this is an opportunity for those facilities to do better, and step up to the plate.

When all is said and done, there will be a stronger emphasis on making sure facilities do have good-quality performance, and if you don’t make the cut, I think that CMS will be more inclined to not have you participate in the program. I also think part of the new payment system will change who’s playing in the game.

CMS has been pretty clear: If you can’t take care of sicker patients, then you probably are not going to be a long-term nursing home in this business. The whole system is being re-engineered, and nursing homes are a big part — actually the core — of some of that re-engineering of the health care system today.

You need to look at nursing homes bigger than just the COVID [problems], and take a look at what they were trying to do to nursing homes prior to COVID — and see how COVID is building on what their original proposal was, which is nursing homes get paid more if they take care of higher-acuity patients, and if they do a better job in the quality performance areas, which they had started working on even before COVID.

I think this will just give them added incentive to continue along that path, and really make sure that we change the way nursing homes function in this country.

The survey process is at the center of those changes — it’s one of the rare things that pretty much everyone agrees is broken, even if they have different reasons. The industry says that it’s overly punitive and doesn’t focus on the right metrics; resident advocates say that fines aren’t high enough, and enforcement is too lax. How should we fix the nursing home survey?

The range of deficiencies is pretty big, from something minor — like there was water on the floor that wasn’t cleaned up quickly enough — to major immediate jeopardy and patient harm. There’s a lot of choice for surveyors to pick from. I think one of the things is refocusing that survey process on the things that really make a difference.

Surveyors have a lot of discretion in what they find in surveys. When I was in the Philadelphia regional office, we had a dietitian who was one of our surveyors, so the kitchen was always [at the forefront]; she had a lot of findings about the kitchen. We would say to her: “You need to look at other things.”

Part of it is just the diversity of the surveyors. I think we need to take a look at what is a standard survey process, and have more mandatory survey findings, more of a mandatory program. There’s so much discretion, within the survey process, left up to surveyors.

The second thing is really tying those surveys to … the human side. We can go in and find a lot of issues based on the current process. But there are more human [factors]: social isolation, and some of the psychological impacts on beneficiaries.

I think you need to take a look at the survey process and say: What is it that we want the survey process to do? Do we want it to go from A to Z in terms of findings? Or do we want to say: Look, you really need to hit the things that are the most important to nursing home residents from their perspective, from the staff’s perspective, and from the federal government’s perspective.

Unfortunately, the way the process works is you can fine facilities, and quite honestly, a lot of facilities are okay with the fine: Just give me the fine and I’ll move on. The fines aren’t always the answer to the problem — they can pay the fine and move on. The money isn’t really as much of an incentive as putting them out of business would be.

There needs to be more of a consequence in nursing homes when they don’t make the changes to the current process, to the major deficiencies that the surveyors have found.

Then I think the third thing that really needs to happen: [There] really does need to be more coordination between the survey results that they find and how that is shared with caregivers and the family members, and some feedback on those survey findings.

When I was in Philadelphia, we could survey a nursing home, and they would have not-great findings. They would have not immediate jeopardy, where people were harmed, but some pretty serious findings. Infection control was a good example — infection control wasn’t that good. But you know what? If the family and the patient loved being in that nursing home, they were not interested in putting them out of business.

You have to factor that into the survey process. It isn’t always just closing down a nursing home. It isn’t always just giving them money. It’s how do we, in a more cooperative way, fix those deficiencies so that they do meet the needs of the three stakeholders that I mentioned before?

We’ve always had quality improvement organizations, and the original intent of those QIOs was to do exactly that — to educate nursing homes and provide some technical assistance to them.

At times, we would even put in temporary administrators or directors of nursing, because one of the things we found is those are very key positions. So many of the issues found in nursing homes really stemmed from leadership — focusing on making sure those are good leaders and finding ways to either educate them or replace them when we see serious deficiencies. I think we should do that more often than we currently do in the process.

I feel like there are two very opposing schools of thought around this: Those sympathetic to the sector think CMS needs to do much more to help nursing homes. The biggest critics — including one of the members of the recent White House coronavirus task force — say that CMS should exclusively play an enforcement role and provide no further support to operators, who, they argue, have plenty of money to fix things. Maybe the answer is somewhere in the middle?

I think there’s a distinction, though, between big-chain nursing homes and not big-chain nursing homes. They’re totally different businesses. For the big chains, I think people are probably more in line with: You guys know what you’re doing. You have the funds. You need to do better, and there should be more enforcement.

But I’ll just give you a quick example of a nursing home that I visited when I was the administrator. I think it was in Missouri. It was a small facility that was started by a husband and wife, and the idea of this nursing home was to meet all of the patients’ needs. Each patient who entered that nursing home, their schedule was based on how they lived their life prior to coming into the nursing home.

In general, nursing homes have a routine. They start in the morning, and they get everybody ready for breakfast, and then by the time everybody’s done getting ready for breakfast, they have breakfast. This nursing home said: We’re not doing that. If you were a farmer, and you got up at five o’clock in the morning, and you had breakfast at 5:30, we’re going to give you breakfast at 5:30. If you slept in until 10, we’re going to give you breakfast at 10.

They really did create this truly person-centered facility that really met the needs of the patients. The problem is they went out of business because they couldn’t get paid enough to do that.

That’s why I think it’s not really any one of these issues; it’s really looking at the nursing home space and rebuilding that from a place that really does provide the services they need, in a way that really does improve patient care — by making them happier, and keeping them healthy as long as we can.

It’s really not either-or. It’s not just enforcement, because quite honestly, enforcement killed this poor little facility. One, they weren’t reimbursed enough. Two, the surveyors would come in, and there were so many things that didn’t meet the current rules. For example, they let people bring in one piece of furniture, like a rocking chair or a dresser. Well, it violated a whole bunch of rules and regs.

I think it’s hard. It’s really hard. Nursing homes are villains to so many people, but it’s a hard business. I think we have seen there are many abuses that need to be taken care of. But I think when you talk in terms of enforcement and money to fix [things], I think we have to be careful we don’t run the risk of putting any type of institutions — other than big chain nursing homes — as the driver [of enforcement] of this industry. I think people will say they may not be the best places to put our loved ones.

You have to balance that. There should be more enforcement. I totally agree with that. But I think we need to look at enforcement in terms of what we’re enforcing, why we’re enforcing it, and what difference that makes.

That reminds me of a story I heard about a Green House development that ran into significant trouble installing fireplaces in their small-home cottages, even though they had a detailed safety plan. It almost seems like the current regulations, at least around design, incentivize developers to only build the same old, big, institutional nursing facilities that we saw fail during this crisis.

I think we need to go back to basics. What are the incentives built into the system today, and are they the right incentives? And if not — which, you know, obviously they’re not — how do we change them to make them better?

Everybody says nobody wants to go to a nursing home. Well, I think that’s true, because probably you’re really sick. But even more than that, they’re just not good places to be in. They aren’t personal. They’re very cold. There are varying differences in quality and bedside manner.

CMS has Nursing Home Compare, and the whole reason we did Nursing Home Compare was to give consumers a place to go so that they could actually find good information about potential nursing homes. Well, we’re finding that they don’t really use it. They may look at it [for] some information, not a deciding factor.

One idea is to go back and make that real — really look at what we did in Nursing Home Compare, and make sure that those are the things consumers and patients really want to know about when they’re choosing a nursing home.

Nursing Home Compare is another good way to incentivize nursing homes to do the right thing. The government has very limited resources to make people do things they want them to do. But two of them are reimbursement: How do we pay facilities? And then secondly, the survey findings — those are obviously another incentive in the nursing home space to have facilities do what we think is the right thing for them to do. But the rules have to change to allow those incentives to happen.

My hope is that’s what we’re seeing in the nursing home industry. CMS has been trying to change that industry, like I said, even pre-COVID, with changing the way they make payments. I think the positive side of COVID, once we get through maybe — hopefully — the last surge, is that we really do have an opportunity to take a look at that: I call it the middle space.

You have institutions — hospital care that people have to have for acute care services. You have home health that people need, but that middle bucket of institution that’s non-hospitalization, that’s a whole new area that health care has a huge opportunity to create — and recreate based on what exists today.

When we get through the horrible surge, and the situation we’re in now, I do think — and I hope — good, smart nursing facilities are thinking about that moving forward. What do we want to be? And what do we want to look like when this is over? Because we can completely change the dynamic of health care, by reinventing and changing the way we do business.

This interview has been condensed and edited for clarity.

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