Nursing home enforcement remains "an enormous issue," Centers for Medicare & Medicaid Services (CMS) Administrator Tom Scully warned health care providers earlier this month. He added that quality of nursing homes is now one of the agency’s highest priorities. The U.S. Department of Health and Human Services’ Office of Inspector General (OIG) listed nursing homes as one its top priorities in its Work Plan for FY 2003.
As a result of collaboration among federal agencies, Scully says several major cases are "close to resolution." However, several veteran health care attorneys say CMS is mixing apples and oranges by tying its quality and enforcement efforts too closely.
In the past few years, Scully says CMS has imposed more than 13,000 remedies on non-compliant nursing homes, including more than 6,000 civil monetary penalties, he told the joint American Health Lawyers Association/Health Care Compliance Association conference in Washington, DC.
He added that setting standards and measuring those standards against what is needed to improve quality of care in nursing homes is one of the agency’s major initiatives.
Health care attorney Joe Bianculli in Arlington, VA, says there is no question CMS and the OIG have a legitimate role to play in enforcing nursing home compliance and quality, but he questions their approach.
"It would be useful for CMS and the OIG to get on the same page," argues Bianculli. In the last several years, he says they have taken different approaches to both compliance and quality. "CMS is tied down with an incredibly bureaucratic, incredibly coercive, incredibly penalty-oriented enforcement process," he asserts. "In my view, if it has any connection with quality at all, that connection is purely coincidental."
Bianculli contends the OIG has taken a much more useful approach by defining what it considers to be the most significant indicators of quality and correlating those indicators directly with resident outcomes at specific facilities. He credits that approach with the size of the OIG’s settlements in this area, because in most instances he says the cases brought by the OIG are beyond dispute.
CMS is another story, according to Bianculli. "There is really no philosophical or theoretical underpinning for CMS’ enforcement activity, other than simple punishment," he asserts. "The agency persists in the notion that retrospective punishment is likely to promote quality."
According to Bianculli, CMS often takes a statement of deficiencies from a variety of surveyors of "wildly different" skills and training and imposes penalties based only on that paper record. "CMS does very few surveys itself," he says. "There is very little firsthand information about what is actually going on in facilities." As a result, he says the hearing process frequently is jammed with appeals of surveys that facilities believe are not well founded.
Marie Infante of the Washington, DC, office of Mintz Levin, takes a similar view. She says CMS is mistakenly looking at the problems of enforcement and quality as "parallel tracks." While CMS’ publication of quality information is a positive step, she says the agency’s own enforcement efforts are driving things exactly in the other direction.
"The adversarial and arbitrary survey process is a contributor to driving good staff away and having good facilities drop their participation in the Medicare and Medicaid programs," she argues.
Infante contends that a more logical approach to addressing significantly deficient practices would be to take the money and reinvest it back in the facility in areas that directly benefit residents and staff and can be directly monitored.