‘A Model’: In New State Law, Nursing Homes Get to Influence Survey Process to Ease Punitive Aspects

Industry stakeholders in Kentucky are celebrating the passage of new legislation that will require the state government to involve skilled nursing trade organizations to weigh in on how state surveyors are trained, and participate in the training process.

Providers and advocates hail the law as a model for the nation, and welcome the ability to collaborate on the compliance process with federal and state agencies.

Specifically, the new bill requires that the commissioner of health must establish and implement a prescribed process and program for providing training and education in collaboration with industry trade associations before using any new regulatory guideline, regulation, interpretation, memorandum, or any other materials used in surveyor training to survey licensed providers.

Betsey Johnson, CEO of the Kentucky Association of Health Care Facilities, said joint training will begin in Kentucky in July.

“CMS should be just as invested as we are as the provider community, to make sure that everybody’s trained, and everybody learns the same information, especially when there is new guidance and new regulations … especially with the Biden potential staff mandate coming down,” Johnson said.

Johnson said that since she started her role at the Kentucky Association nine years ago, the feedback she has received has been that joint training is always the best of training because it’s always good to have the state surveyors and operators to hear the same thing at the same time.

Road to the bill’s passage

Although the bill eventually received bi-partisan support, Johnson said that initially Centers for Medicare & Medicaid Services (CMS) read the bill from a different perspective than the nursing home providers’ association did, and wanted to ensure that operators were going to be in compliance with the requirements of federal law.

“We went back and forth on language and came to an agreement that sitting down with our association and talking about new federal guidance … and any other kind of new regulatory requirements from the federal government was a good idea,” said Johnson. The federal agency also agreed that to the extent possible, applying Civil Money Penalty (CMP) funds to pay for their training was also a good idea. “So, that’s in the bill as well.”

The idea for the bill, Johnson said, came from pre-existing legislation in Minnesota.

“The best ideas are always stolen from others,” she said. “So, I’m very fortunate to be connected with other state executives across the country.” Local nursing home advocacy heads meet at least once a year to share ideas, she said.

The language for Kentucky’s bill on joint training, KY HB391, is adapted from similar legislation underway in Minnesota that requires the cabinet to invite representatives of long-term care provider associations to participate in the planning process for joint surveyor and provider training sessions.

“There’s still a survey agency [Involved], but we’ve had a back-and-forth type of relationship with them,” Patti Cullen, CEO of Care Providers of Minnesota, told Skilled Nursing News.

“And in recent years, [the relationship has] been very good but we passed this law back when it wasn’t so good. [CMS] would end up training surveyors, not training us, or we wouldn’t know when the federal regulations were going to be implemented, how they were going to be implemented.”

Balanced accountability

At the end of the day, the goal for providers and federal agencies is a common one, believes Kathy Gallin, VP of Legislative Affairs and Health Policy at Kentucky-based Signature HealthCARE Consulting. And it’s in everyone’s interest to improve the survey process, she said.

“We all ultimately want our skilled and long-term patients and residents to receive the best care possible,” Gallin told Skilled Nursing News. “We believe that can be achieved through a collaborative goal of quality improvement. Having a collaborative opportunity, such as that provided in Kentucky’s HB391, enables us to accomplish this goal by directly communicating, listening to concerns and challenges, and providing a much-needed opportunity for respect and cooperation between surveyors and providers,” said Gallin.

Signature HealthCARE provides rehabilitation, assisted living, home health, skilled nursing and cognitive care services at 75 facilities across 8 states and staffed by approximately 8,500 employees.

Moreover, Gallin said she thinks the Kentucky legislation could serve as a model for other states.

“Let’s face it, we are always going to be under a microscope, so to speak, because we are providing care to our nation’s most vulnerable population,” Gallin said. “Accountability is important if it is balanced and competent. Federal government and states should be willing to work with providers for better outcomes for all.”

Collaboration with federal government agencies, rather than a “punitive’ system,” will enable operators and providers to provide higher quality care, Gallin said.

Situation in other states

Efforts are also afoot in other states for reforms to the survey process.

Rick Abrams, CEO of the Wisconsin Health Care Association, has advocated for survey reform in Wisconsin, where an industry task force found that out of 345 nursing homes in the state, there have been 262 changes in administrator positions and 228 changes in director of nursing positions since January 2022. Abrams linked this to a “punitive” survey process.

“In many of these instances, the administrator has not moved on to a different facility but has left the profession entirely. Just by speaking with [skilled nursing] owners personally, I can tell you the survey process is driving good people from our sector, and that’s got to change,” he told SNN earlier.

The survey process, along with low reimbursement rates, were two of the leading reasons that Villa Healthcare, which operated a number of nursing homes across the state concentrated in the Southeast area surrounding Milwaukee, elected to leave Wisconsin at the end of 2022.

Cullen said that although conditions are more favorable in Minnesota compared to other states, sometimes surveyors don’t understand the implications of their enforcement actions.

“We continue to want more collaborative working relationships,” she said. This will be helpful, especially “at a time when we’re stressed with the workforce, and they have daily fines that are accruing because of an [Immediate Jeopardy] that we’re going to be disputing,” Cullen said. Immediate Jeopardy is a citation based on a facility’s actions that resulted in serious injury, harm, impairment, or death of a resident. “So there’s always been concern with trying to move to a more collaborative approach, but we understand that CMS federally doesn’t allow for that.”