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entitled 'Nursing Home Deaths: Arkansas Coroner Referrals Confirm 
Weaknesses in State and Federal Oversight of Quality of Care' which was 
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Report to Congressional Requesters:

United States Government Accountability Office:

GAO:

November 2004:

Nursing Home Deaths:

Arkansas Coroner Referrals Confirm Weaknesses in State and Federal 
Oversight of Quality of Care:

GAO-05-78:

GAO Highlights:

Highlights of GAO-05-78, a report to congressional requesters:

Why GAO Did This Study:

GAO was asked to assess the effectiveness of nursing home oversight by 
considering the effect of a unique Arkansas law that requires county 
coroners to investigate all nursing home deaths. Coroners refer cases 
of suspected neglect to the state survey agency and law enforcement 
entities such as the state Medicaid Fraud Control Unit (MFCU). The 
Centers for Medicare & Medicaid Services (CMS) contracts with survey 
agencies in every state to periodically inspect nursing homes and 
investigate allegations of poor care or neglect. MFCUs are charged with 
investigating and prosecuting resident neglect. GAO examined (1) the 
results of Arkansas coroner investigations, (2) the state survey 
agencys experience in investigating coroner referrals, and (3) whether 
weaknesses in state and federal nursing home oversight identified in 
prior GAO reports were evident in the survey agencys investigation of 
coroner referrals. 

What GAO Found:

According to the Pulaski County coroner, he referred 86 cases of 
suspected resident neglect to the state survey agency for the period 
July 1999, when the Arkansas law took effect, through December 2003. 
Agency officials said that other state coroners referred four cases 
during this time period. Importantly, these 86 referrals constituted 
just 2.2 percent of all nursing home deaths the coroner investigated. 
However, the referrals included disturbing photos and descriptions of 
the decedents, suggesting serious, avoidable care problems; more than 
two-thirds of the 86 referrals listed pressure sores as the primary 
indicator of neglect. Some photos of decedents pressure sores depicted 
skin conditions so deteriorated that bone or ligament was visible, as 
were signs of infection and dead tissue. The referrals involved 27 
homes, over half of which had at least 3 referrals. 

Arkansas state survey agency officials told GAO that they received 36 
(fewer than half) of the Pulaski County coroners referrals. The 50 
referrals not received described decedents conditions similar to those 
the survey agency did receive. Of the 36 referrals for alleged neglect 
that it received, the survey agency complaint investigations 
substantiated 22 and eventually it closed the home with the largest 
number of referrals. However, the agencys investigations often 
understated serious care problemsboth when neglect was substantiated 
and when it was not. For 11 of the 22 substantiated referrals, the 
state survey agency either cited no deficiency for the decedent or 
cited a deficiency at a level lower than actual harm for the 
predominant care problem identified by the coroner. In contrast, MFCU 
investigations of many of the 11 referrals found the homes negligent in 
caring for decedents, and the MFCU reached settlements with the owners 
of several homes. In half of the 14 referrals not substantiated, the 
MFCU or an independent expert in long-term care either found neglect or 
questioned the not substantiated finding. Moreover, they found gaps 
and contradictions in the medical records for some decedents, raising a 
question about the survey agencys conclusions that the same records 
indicated appropriate care had been provided. 

GAOs prior work on nursing home quality of care found that weaknesses 
in federal and state oversight nationwide contributed to serious, 
undetected care problems indicative of resident neglect. GAOs review 
of the Arkansas survey agencys investigations of coroner referrals 
confirmed that serious, systemic weaknesses remain. Oversight 
weaknesses GAO previously identified nationwide and those it found in 
Arkansas included (1) complaint investigations that understated the 
seriousness of allegations and were not timely; (2) predictable timing 
of annual state surveys that could enable nursing homes so inclined to 
cover up deficiencies; (3) survey methodology weaknesses, coupled with 
surveyor reliance on misleading medical records, that resulted in 
missed care problems; and (4) a policy that did not always hold homes 
accountable for neglect associated with a residents death.

What GAO Recommends:

GAO recommends that the CMS Administrator revise CMSs policy on citing 
deficiencies to better ensure that nursing homes are held accountable 
for care problems identified after a residents death. CMS concurred 
with GAOs recommendations and listed numerous initiatives it plans in 
response to the reports findings. 

www.gao.gov/cgi-bin/getrpt?GAO-05-78.

To view the full product, including the scope and methodology, click on 
the link above. For more information, contact Kathryn G. Allen at (202) 
512-7118.

[End of section]

Contents:

Letter:

Results in Brief:

Background:

Coroner Referrals of Suspected Neglect, While Few in Number, Indicated 
Serious Care Problems:

The State Survey Agency's Investigation of Coroner Referrals Often 
Understated Neglect of Residents:

Resident Neglect May Go Undetected Because of Well-Documented Oversight 
Weaknesses:

Conclusions:

Recommendations for Executive Action:

Agency and State Comments and Our Evaluation:

Appendix I: Coroner Referrals for Pressure Sores and the Seriousness of 
Deficiencies Cited on Standard Surveys:

Appendix II: Coroner Referrals That the State Survey Agency Reported as 
Not Received, Substantiated, or Not Substantiated:

Appendix III: Comments from the Centers for Medicare & Medicaid 
Services:

Appendix IV: Comments from the Arkansas Department of Human Services:

Related GAO Products:

Tables:

Table 1: Possible Outcomes of State Survey Agency Complaint 
Investigations:

Table 2: Scope and Severity of Deficiencies Identified during Nursing 
Home Surveys:

Table 3: Description of Pressure Sore Stages:

Table 4: Pulaski County Coroner Referrals Received by State Survey 
Agency and MFCU, July 1999 through December 2003:

Table 5: Extent to which the State Survey Agency Cited Serious 
Deficiencies for Substantiated Referrals from the Pulaski County 
Coroner:

Table 6: Six Coroner Referrals Where the MFCU Found Negligence by the 
Nursing Home but the State Survey Agency either Cited No Deficiency or 
a Deficiency at Less than Actual Harm for the Decedent:

Figures:

Figure 1: Predominant Care Problems Identified in Pulaski County 
Coroner Referrals to State Survey Agency and the MFCU, July 1999 
through December 2003:

Figure 2: Number of Pulaski County Coroner Referrals of Suspected 
Neglect, by Nursing Home, July 1999 through December 2003:

Figure 3: Elapsed Working and Calendar Days between Receipt of 
Coroner's Referral and Start of Investigation by Arkansas State Survey 
Agency:

Abbreviations:

CMS: Centers For Medicare & Medicaid Services: 

MFCU: Medicaid Fraud Control Unit: 

OSCAR: On-Line Survey, Certification, and Reporting system:

United States Government Accountability Office:

Washington, DC 20548:

November 12, 2004:

The Honorable Charles E. Grassley: 
Chairman: 
Committee on Finance: 
United States Senate:

The Honorable Christopher S. Bond:
United States Senate:

An October 2002 series in the St. Louis Post Dispatch concluded that 
avoidable deaths of vulnerable nursing home residents was a widespread 
but rarely investigated problem. The series spotlighted an Arkansas law 
requiring investigations by county officials, such as coroners, of all 
nursing home deaths.[Footnote 1] Under this law, deaths associated with 
suspected resident neglect, including poor quality care, are referred 
to the state survey agency and to law enforcement entities. The Centers 
for Medicare & Medicaid Services (CMS), the federal agency responsible 
for managing Medicare and Medicaid, contracts with survey agencies in 
every state to oversee the quality of nursing home care. In 1998, we 
reviewed allegations that thousands of California nursing home 
residents died because of poor care. We found oversight weaknesses that 
were systemic and not limited to California. Despite federal and state 
oversight, over half of the decedents in our sample had received 
unacceptable care that sometimes endangered their health and 
safety.[Footnote 2] We also found that state surveyors sometimes 
classified deficiencies at homes where residents had died as less 
serious than warranted. Our subsequent reports on nursing home quality 
continued to demonstrate that (1) an unacceptably large proportion of 
nursing homes--one-fifth as of early 2002--harmed residents and (2) 
states' periodic inspections of nursing homes failed to identify all 
serious deficiencies, such as preventable weight loss and pressure 
sores.[Footnote 3]

Our preliminary work on this report found that the 1999 Arkansas law 
was the only such law nationwide.[Footnote 4] You asked us to consider 
Arkansas's experience with required coroner investigations to assess 
the effectiveness of nursing home oversight by the Arkansas state 
survey agency and by CMS. Specifically, we examined (1) the results of 
Arkansas coroner investigations of nursing home resident deaths, (2) 
the experience of the Arkansas state survey agency in investigating 
suspected cases of resident neglect referred by county coroners, and 
(3) whether systemic weaknesses in state and federal nursing home 
oversight identified in our prior reports were evident in the survey 
agency's investigations of coroner referrals.[Footnote 5]

To identify the results of nursing home death investigations by 
Arkansas's 75 coroners, we asked the Arkansas Office of Long Term Care, 
the state survey agency, to identify referrals from each county coroner 
since the law's effective date.[Footnote 6] Because the agency told us 
that all but four of the referrals were made by the Pulaski County 
coroner, where the state capital Little Rock is located, we focused on 
that county's referrals. We obtained and reviewed copies of the 
coroner's referrals, including the investigative reports, autopsy 
reports (if one was conducted), and photos of decedents that documented 
suspected care problems. We interviewed the Pulaski County coroner to 
determine how reported deaths were investigated, the basis for 
determining when referrals were warranted, and the process for 
transmitting referrals to the state survey agency and law enforcement 
entities. To evaluate state survey agency investigations of coroner 
referrals of suspected nursing home neglect, we asked the Arkansas 
survey agency to provide documentation on the results of its 
investigations. Since the agency treats such referrals as complaints, 
we reviewed the agency's guidance to surveyors on complaint 
investigations and discussed the procedures with agency officials. We 
followed up with agency staff to clarify facts regarding specific 
investigations of coroner referrals, as needed. To assess the overall 
quality of care provided at homes with coroner referrals, we obtained 
data from the survey agency on other complaints against these homes and 
analyzed data in CMS's On-line Survey, Certification, and Reporting 
system (OSCAR). CMS officials generally recognize OSCAR data to be 
reliable, and we judged it to be appropriate for our work.

Since the Pulaski County coroner referrals were also sent to the 
Arkansas Medicaid Fraud Control Unit (MFCU), we obtained copies of its 
investigative files. MFCUs are charged with investigating and 
prosecuting Medicaid provider fraud and incidents of patient abuse and 
neglect. In Arkansas, the MFCU is located within the office of the 
state attorney general. We compared the results of the state survey 
agency and MFCU investigations to identify similarities and differences 
in their findings. For some coroner referrals of suspected resident 
neglect for which we questioned the state survey agency's decision to 
not substantiate the existence of serious care problems, we asked a 
professor of nursing with expertise in long-term care to assess the 
consistency between the findings from the agency's investigations and 
the decedents' conditions as documented by the coroner. The expert's 
assessment was based on a review of the various investigative reports, 
medical records we obtained, and photos of decedents taken by the 
coroner. We also discussed our evaluation of the investigations with 
officials from the Arkansas state survey agency, the MFCU, and CMS. To 
identify whether systemic weaknesses in state and federal nursing home 
oversight were evident in the survey agency's investigations of coroner 
referrals, we reviewed our findings regarding the Arkansas state survey 
agency's investigations in the context of our prior work on nursing 
home quality. We conducted our work from August 2003 through October 
2004 in accordance with generally accepted government auditing 
standards.

Results in Brief:

According to the Pulaski County coroner, he made 86 referrals to the 
state survey agency of nursing home deaths where neglect was suspected 
from July 1999, when the Arkansas law took effect, through December 
2003. The 86 referrals, constituting 2.2 percent of the approximately 
4,000 nursing home deaths the Pulaski County coroner investigated in 
the 4.5-year period, included disturbing photos and descriptions of the 
decedents that suggested the existence of serious, avoidable care 
problems. In over two-thirds of the coroner referrals, pressure sores 
were the predominant indication of suspected neglect identified during 
the physical examinations of the decedents, and for some decedents 
these were at the stage described as life-threatening. For example, the 
photos of some decedents' pressure sores depicted individuals with skin 
conditions so deteriorated that bone or ligament was visible, as were 
signs of infection and dead tissue. The coroner also cited injuries 
such as falls and broken bones in about 6 percent of the 86 cases. The 
referrals involved a total of 27 homes, over half of which had three or 
more referrals during the 4.5-year period.

The Arkansas state survey agency informed us it received 36 coroner 
referrals--fewer than half of those the coroner said he referred--and 
the MFCU reported it received 51, almost three-fifths. According to the 
coroner, the referrals were hand delivered to ensure that none were 
lost and in March 2004, the coroner began requesting signed receipts. 
Of the 36 referrals that it investigated, the survey agency 
substantiated 22 and eventually closed the home with the largest number 
of referrals. However, the survey agency's investigations often 
understated serious care problems--for both substantiated and 
unsubstantiated referrals. For 11 of the 22 substantiated referrals, 
the state survey agency found other care problems but either cited no 
deficiency or cited a deficiency at a level lower than actual harm for 
the predominant care problem identified by the coroner. The MFCU's 
investigations of 6 of these 11 referrals, however, found the nursing 
homes negligent in providing care, in effect substantiating the 
existence of serious care problems. Moreover, the MFCU reached 
settlements with owners of several of the nursing homes. Although we 
did not examine each of the 14 unsubstantiated referrals in detail, the 
state survey agency's findings for seven decedents were questioned by 
the MFCU's investigation, which identified neglect, or by our expert 
consultant, who questioned the basis for the not-substantiated finding. 
Examples of neglect they identified included the development of 
avoidable pressure sores and the lack of a treatment plan. The MFCU and 
our expert consultant also found omissions and contradictions in the 
medical records for 4 of the 14 referrals, raising a question about the 
state survey agency's conclusions that the same records indicated 
appropriate care had been provided.

We found the same serious, systemic survey and oversight weaknesses in 
the Arkansas state survey agency's investigation of coroner referrals 
that our prior work on nursing home quality of care identified 
nationwide. These weaknesses included (1) understatement of the 
seriousness of complaints and a failure to investigate serious 
complaints promptly; (2) predictable timing of state surveys, which 
could enable a home so inclined to cover up deficiencies; (3) survey 
methodology weaknesses that result in overlooked care problems; and (4) 
not holding nursing homes accountable for neglect associated with a 
resident's death. CMS discourages surveyors from citing a deficiency 
for a care problem involving a deceased resident unless the problem was 
so serious that it contributed to or caused a resident's death or 
unless the same problem can be identified for individuals still 
residing at the nursing home. If a similar problem is not identified 
during a complaint investigation that assesses care provided to current 
residents, it is assumed to have been recognized by the home and 
corrected. However, our prior work demonstrated, and our work in 
Arkansas confirmed, that (1) nursing home records can contain 
misleading information or omit important data, making it difficult for 
surveyors to identify care deficiencies during their on-site reviews; 
and (2) states' surveys of nursing homes do not identify all serious 
deficiencies, such as preventable weight loss and pressure sores. Given 
the results of our prior work, we believe that the serious, undetected 
care problems identified by the Pulaski County coroner are likely a 
national problem not limited to Arkansas.

We are recommending that the Administrator of CMS revise CMS's policy 
on citing deficiencies to better ensure that nursing homes are held 
accountable for care problems identified after a nursing home 
resident's death. CMS concurred with our recommendations to revise its 
policy on citing deficiencies for past noncompliance and also 
identified more than a dozen additional initiatives it plans to take to 
address shortcomings in the nursing home survey process. CMS commented 
that the focus of its initiatives, such as additional guidance on the 
scope and severity of deficiencies, would be broad, a recognition that 
the shortcomings we identified were systemic and not limited to 
Arkansas. Both CMS and the state survey agency raised concerns about 
the discrepancy we reported between the number of referrals the coroner 
said he made (86) and the number the survey agency said it received 
(36). In addition, the state survey agency commented that we had 
understated the number of investigations it actually conducted. We 
revised the report to address these concerns. In oral comments, the 
Pulaski County coroner indicated that he believes the law has had a 
significant, positive impact on the quality of care provided to nursing 
home residents in Pulaski County. The MFCU did not provide comments. We 
incorporated technical comments from CMS, the state survey agency, and 
the Pulaski County coroner, as appropriate.

Background:

Combined Medicare and Medicaid payments to nursing homes for care 
provided to vulnerable elderly and disabled beneficiaries totaled about 
$64 billion in 2002, with total federal payments of approximately $45.5 
billion. Oversight of nursing home quality is a shared federal-state 
responsibility. On the basis of statutory requirements, CMS defines 
standards that nursing homes must meet to participate in the Medicare 
and Medicaid programs, and contracts with states to assess, through 
annual surveys and complaint investigations, whether homes meet these 
standards. CMS is also responsible for monitoring the adequacy of state 
survey activities. Arkansas's unique 1999 law requires investigations 
by county officials, such as coroners, of nursing home residents' 
deaths and referral of any cases of suspected neglect to the state 
survey agency and the MFCU.

Standard Surveys:

Every nursing home receiving Medicare or Medicaid payments must undergo 
an unannounced standard survey not less than once every 15 months, and 
the statewide average interval for these surveys must not exceed 12 
months.[Footnote 7] A standard survey entails a team of state 
surveyors, including registered nurses, spending several days in the 
nursing home to assess compliance with federal long-term care facility 
requirements, particularly whether care and services provided meet the 
assessed needs of the residents and whether the home is providing 
adequate quality of care, such as preventing avoidable pressure sores, 
weight loss, or accidents. State surveyors assess the quality of care 
provided to a sample of residents during the standard survey, which is 
the basis for evaluating nursing homes' compliance with federal 
requirements. CMS establishes specific investigative protocols for 
state surveyors to use in conducting these comprehensive surveys. These 
procedural instructions are intended to make the on-site surveys 
thorough and consistent across states. When a deficiency is identified, 
the nursing home is required to prepare a plan of correction that must 
be approved by the state survey agency. Our earlier work indicated that 
facilities could mask certain deficiencies, such as routinely having 
too few staff to care for residents, if they could predict the survey 
timing; CMS therefore directed states, effective in 1999, to (1) avoid 
scheduling a home's survey for the same month of the year as the home's 
previous standard survey and (2) begin at least 10 percent of standard 
surveys outside the normal workday (either on weekends, early in the 
morning, or late in the evening).

Complaint Investigations:

Complaint investigations provide an opportunity for state surveyors to 
intervene promptly if quality-of-care problems arise between standard 
surveys. A nursing home resident, family member, friend, nursing home 
employee, or others may file complaints. CMS requires the investigation 
of complaints that represent immediate jeopardy to resident health and 
safety within 2 working days and considers such complaints to be those 
where one or more of the conditions alleged in the complaint, if true, 
may have caused or is likely to cause serious injury, harm, impairment, 
or death to a resident. Beginning in 1999, CMS required investigation 
of complaints that allege harm to a resident (but which do not rise to 
the level of immediate jeopardy) within 10 working days, but did not 
provide detailed guidance to the states about what constitutes harm 
until November 2003. In November 2003 guidance, CMS generally defined 
two categories of complaints representing harm: (1) those that, if 
true, would impair the resident's mental, physical, and/or psychosocial 
status, which must be investigated within 10 working days, and (2) 
those that would not significantly impair the resident's mental, 
physical, and/or psychosocial status, which must be investigated within 
45 calendar days. Other complaints that do not rise to the level of 
either immediate jeopardy or harm do not have to be investigated until 
the home's next survey, or in some cases, not at all if the state 
survey agency can determine with certainty that no investigation, 
analysis, or action is necessary. The requirements identified in the 
November 2003 guidance became effective on January 1, 2004.

Generally, nurse surveyors investigate complaints onsite at the nursing 
home by reviewing medical records and interviewing staff and residents. 
The investigations typically include a sample of residents in addition 
to the resident who is the subject of the complaint to help determine 
if the problems are systemic. Depending on the volume of complaints 
against a particular home, several complaints for different residents 
may be investigated concurrently. Each complaint may contain one or 
more allegations that a facility is violating federal quality-of-care 
standards. For example, a single complaint could allege problems with 
resident abuse, treatment of pressure sores, and proper feeding and 
hydration. In the course of complaint investigations, the state survey 
agency can either substantiate or not substantiate the specific 
allegations or discover other, unreported violations of federal 
standards (see table 1). A substantiated complaint, however, does not 
necessarily mean that the state survey agency found neglect of the 
resident who was the subject of the complaint but rather may indicate 
other, unrelated care problems. If the state survey agency finds a 
current violation of a federal standard during a complaint 
investigation--even if the violation does not relate to the specific 
allegations being investigated or the residents who are the subject of 
the complaint--it is required to cite a deficiency against the home. If 
a complaint investigation reveals no current violation of federal 
standards but determines that an egregious violation of federal 
standards occurred in the past that was not identified during earlier 
surveys, a deficiency known as past noncompliance should be cited and a 
civil monetary penalty imposed. CMS does not define egregious but 
indicates that it includes noncompliance related to a resident's death.

Table 1: Possible Outcomes of State Survey Agency Complaint 
Investigations:

Complaint outcome: Substantiated: Deficiency; 
Basis of outcome: The investigation revealed a current violation of 
federal standards and resulted in the citation of one or more 
deficiencies.[A] The deficient practice had not been identified and 
corrected by the home prior to the investigation.

Complaint outcome: Substantiated: Past noncompliance; 
Basis of outcome: If the investigation revealed a past egregious 
violation of federal standards, such as causing the death of a 
resident, but identified no current violation, the home should be 
cited for past noncompliance and assessed a civil monetary penalty.[B].

Complaint outcome: Substantiated: No deficiency; 
Basis of outcome: The investigation revealed a nonegregious past 
violation of federal standards but the home had a quality assurance 
program in place that identified the deficient practice, took 
appropriate corrective action prior to the investigation, and 
implemented measures that prevented a recurrence.

Complaint outcome: Not substantiated: No deficiency; 
Basis of outcome: The investigation identified no violation of federal 
standards. 

Source: CMS.

[A] When a home does not participate in Medicare or Medicaid, the state 
may cite deficiencies under its state licensing regulations.

[B] CMS does not define egregious but notes that it includes situations 
that caused the death of a resident.

[End of table]

Deficiency Reporting:

Quality-of-care deficiencies identified during either standard surveys 
or complaint investigations are classified in 1 of 12 categories 
according to their scope (i.e., the number of residents potentially or 
actually affected) and their severity. An A-level deficiency is the 
least serious and is isolated in scope, while an L-level deficiency is 
the most serious and is considered to be widespread in the nursing home 
(see table 2). States are required to enter information about surveys 
and complaint investigations, including the scope and severity of 
deficiencies identified, in CMS's OSCAR database. Since 1998, such 
information has been available to the public through CMS's Nursing Home 
Compare Web site.

Table 2: Scope and Severity of Deficiencies Identified during Nursing 
Home Surveys:

Severity: Immediate jeopardy[B]; 
Scope[A]: Isolated: J; 
Scope[A]: Pattern: K; 
Scope[A]: Widespread: L.

Severity: Actual harm; 
Scope[A]: Isolated: G; 
Scope[A]: Pattern: H; 
Scope[A]: Widespread: I.

Severity: Potential for more than minimal harm; 
Scope[A]: Isolated: D; 
Scope[A]: Pattern: E; 
Scope[A]: Widespread: F.

Severity: Potential for minimal harm[C]; 
Scope[A]: Isolated: A; 
Scope[A]: Pattern: B; 
Scope[A]: Widespread: C. 

Source: CMS.

[A] CMS defines the scope levels as follows: isolated--affecting a 
single or a very limited number of residents; pattern--affecting more 
than a very limited number of residents; and widespread--affecting a 
large portion of or all residents.

[B] Actual or potential for death/serious injury.

[C] Nursing home is considered to be in "substantial compliance."

[End of table]

CMS Oversight:

CMS is responsible for overseeing each state survey agency's 
performance in ensuring nursing homes' compliance with federal 
standards for quality of care. Its primary oversight tools are 
statutorily required federal monitoring surveys conducted annually in 
at least 5 percent of Medicare and Medicaid nursing homes surveyed by 
each state, on-site annual state performance reviews instituted during 
fiscal year 2001, and analysis of periodic oversight reports that have 
been produced since 2000. Federal monitoring surveys can be either 
comparative or observational. A comparative survey involves a federal 
survey team conducting a complete, independent survey of a home within 
2 months of the completion of a state's survey in order to compare and 
contrast the findings. In an observational survey, one or more federal 
surveyors accompany a state survey team to a nursing home to observe 
the team's performance. Roughly 81 percent of federal surveys conducted 
in fiscal year 2003 were observational. State performance reviews, 
implemented in October 2000, measure state performance against seven 
standards, including statutory requirements on survey frequency, 
requirements for documenting deficiencies, timeliness of complaint 
investigations, and timely and accurate entry of deficiencies into 
OSCAR. These reviews replaced state self-reporting of their compliance 
with federal requirements. In October 2000, CMS also began to produce 
19 periodic reports to monitor both state and regional office 
performance. The reports are based on OSCAR and other CMS databases. 
Examples of reports that track state activities include pending nursing 
home terminations (weekly); data entry timeliness (quarterly); tallies 
of state surveys that find homes deficiency-free (semiannually); and 
analyses, by state, of the most frequently cited deficiencies 
(annually). These reports, in a standard format, enable comparisons 
within and across states and regions and are intended to help identify 
problems and the need for intervention. Certain reports--such as the 
timeliness of state survey activities--are used to monitor compliance 
with state performance standards.

The Arkansas Law:

In July 1999, Arkansas enacted a law requiring nursing homes to 
immediately report the deaths of residents to the local coroner, 
regardless of the cause of death.[Footnote 8] The law included a 
similar reporting requirement for a hospital when a resident died 
within 5 days after transferring from a nursing home. Coroners who find 
reasonable cause to suspect that the death is due to maltreatment are 
directed to report their findings to the state Department of Human 
Services and to law enforcement and the appropriate prosecuting 
attorney.[Footnote 9] The statute leaves the scope of the investigation 
up to each coroner.

Like most states, Arkansas already required unnatural deaths to be 
reported to the coroner for investigation before enactment of the 1999 
law.[Footnote 10] According to a coroner who was instrumental in 
demonstrating the need for the legislation, nursing home administrators 
chose to release decedents to funeral homes despite the existing 
requirement for a coroner investigation of deaths that occurred under 
suspicious circumstances. From 1994 to 1998, this coroner's office 
conducted six exhumations of nursing home residents and, after full 
postmortem examinations, all six were determined to have died unnatural 
deaths. Two cases were ruled medication errors and four were deaths 
caused by suffocation. For example, one resident was found to have 
suffocated while tied to his nursing home bed, but the home never 
reported the death to the coroner.

Coroner Referrals of Suspected Resident Neglect:

The Arkansas state survey agency, an entity within the Department of 
Human Services, and the MFCU, an organization within Arkansas's Office 
of the Attorney General, receive and investigate coroner referrals. 
Referrals also may be sent to a local city or county prosecutor.

The Arkansas state survey agency treats referrals of suspected neglect 
of nursing home residents as complaints. As with other complaints, they 
are prioritized for investigation on the basis of the seriousness of 
the allegations. Arkansas, like other states, has additional categories 
with longer investigation time frames (45 days and next survey) for 
complaints judged to be less serious than immediate jeopardy (2 working 
days) and actual harm (10 working days). Complaint allegations are 
entered on an intake form that also includes the source of the 
complaint and eventually the outcome of the investigation. To document 
their actions, Arkansas surveyors generally prepare a one-to two-page 
summary specifically describing how the complaint was investigated and 
which specific allegations were or were not substantiated. Typically, 
the individual who filed the complaint is informed about the results of 
the complaint investigation. The Arkansas state survey agency uses a 
computerized system to track the status of complaint investigations.

In Arkansas, the MFCU's authority to investigate resident abuse and 
neglect is limited to nursing homes that receive Medicaid 
reimbursement; therefore, it cannot investigate such allegations in a 
nursing home that only participates in Medicare or that only accepts 
private pay patients. Generally, MFCUs have concurrent jurisdiction 
with local investigative and prosecutorial authorities and can both 
investigate and prosecute such cases statewide.[Footnote 11] On the 
basis of an investigation, a MFCU can initiate criminal actions in 
state court but must first obtain permission from the local prosecutor. 
In such cases, the focus is not on whether a home is providing 
appropriate care but rather on whether the MFCU can substantiate in 
court that an act of neglect occurred. These cases may be settled out 
of court by a payment to the state's Medicaid program without an 
admission of guilt.

Coroner Referrals of Suspected Neglect, While Few in Number, Indicated 
Serious Care Problems:

Of the approximately 4,000 nursing home deaths investigated by the 
Pulaski County coroner from July 1999 through December 2003, the 
coroner informed us that he identified and referred 86 cases (2.2 
percent) of suspected resident neglect to the state survey agency and 
the MFCU.[Footnote 12] Even when measured against the number of 
complaints filed against nursing homes and abuse and neglect case 
referrals to the MFCU, the number of coroner referrals was very small. 
However, the coroner's referrals, many accompanied by photos, often 
depicted signs of serious, avoidable care problems.

According to the Pulaski County coroner, his staff generally arrives at 
the nursing home or hospital within 15 to 20 minutes after the 
notification, which is expected to be immediate, of a resident's 
death.[Footnote 13] Facilities have been instructed not to disturb the 
resident's body. The initial on-site investigation consists of (1) a 
physical examination of the body, which is photographed; (2) interviews 
with the treating physician, staff, and perhaps family members; and (3) 
a review of the decedent's medical records, including a comparison of 
doctors' prescriptions and nurses' notes to ensure that medications 
were properly administered. During the investigation, the coroner's 
staff looks for several key indicators of whether a decedent may have 
received poor care, including significant weight loss; dehydration; 
pressure sores; undocumented injuries, such as bruises or skin tears; 
and interviews with family members. Many of these care indicators are 
similar to those examined during the state survey agency's annual 
inspection of every nursing home. Before releasing the body to a 
funeral home, the coroner may order a toxicology report or ask the 
state medical examiner to conduct an autopsy to determine whether care 
problems, such as a medication error or blood poisoning (sepsis) from 
infected pressure sores, contributed to the resident's death. Of the 86 
residents referred by the coroner to the state survey agency and the 
MFCU, 14 had autopsies completed.

Pressure sores, typically serious and often numerous, were the 
predominant indication of care problems identified in 67 percent of the 
coroner's referrals (see fig. 1).[Footnote 14] Pressure sores are 
caused by unrelieved pressure on the skin that squeezes the tiny blood 
vessels supplying the skin with nutrients and oxygen, causing the skin 
and ultimately, underlying tissue to die. Most pressure sores can be 
prevented with adequate nutrition, sanitation and frequent 
repositioning of the resident.[Footnote 15] In some of the coroner's 
photos, bone or ligament was visible, as were signs of infection or 
dead tissue, indicating a serious stage IV pressure sore (see table 3).

Figure 1: Predominant Care Problems Identified in Pulaski County 
Coroner Referrals to State Survey Agency and the MFCU, July 1999 
through December 2003:

[See PDF for image]

Note: Although the referrals sometimes identified multiple care 
problems, we attempted to identify the primary cause for each of the 
coroner's 86 referrals.

[A] Skin tears and multiple bruises are serious and painful injuries 
for older individuals and should not be considered in the same context 
as cuts and bruises sustained by healthy and younger adults. A skin 
tear is a traumatic wound occurring principally on the extremities of 
older adults as a result of friction alone or shearing and friction 
forces that separate the top layer of skin from the underlying layer or 
both layers from the underlying structure. A skin tear is a painful but 
preventable injury. See Sharon Baronski, "Skin Tears: Staying on Guard 
Against the Enemy of Frail Skin," Nursing 2000, vol. 30, no. 9 (2000).

[B] Care problems categorized as "other" included possible medication 
errors (3 decedents), a catheter problem (1 decedent), a resident with 
poor oral hygiene (1 decedent), a resident setting himself on fire (1 
decedent), a home's failure to resuscitate a resident (1 decedent), a 
resident choking on food (1 decedent), a home's staff taking actions 
not approved by a physician (1 decedent), malnourishment (1 decedent), 
a family telling the coroner of poor care (1 decedent), a resident 
having difficulty breathing (1 decedent), and a resident suffering from 
a gangrenous colon (1 decedent).

[End of figure]

Table 3: Description of Pressure Sore Stages:

Stage I; 
Description: Skin is not broken but is red or discolored and does not 
return to normal within 30 minutes after pressure is removed.

Stage II; 
Description: The topmost layer of the skin is broken, creating a 
shallow open sore; there may be drainage.

Stage III; 
Description: The break in the skin extends through the second skin 
layer into the tissue below the skin. The wound is deeper than in stage 
II.

Stage IV; 
Description: The tissue breakdown extends into the muscle and 
can extend as far as the bone. Typically, there is considerable dead 
tissue and drainage. Stage IV may be life-threatening.

Source: University of Washington, Spinal Cord Injury Pamphlet, "Taking 
Care of Pressure Sores."

[End of table]

Other indications of care problems identified by the coroner included 
bruises, abrasions, and skin tears (12 percent) and falls or broken 
bones (6 percent). For one referral, the bruise covered the decedent's 
entire upper chest and for another the arm from the elbow to the 
shoulder. In about 15 percent of referrals, the indications of care 
problems identified by the coroner were difficult to categorize, such 
as a decedent with a catheter whose penis was bloody and irritated, a 
resident who died when he attempted to burn off his restraints with a 
cigarette lighter, and a resident who was taken to the hospital with 
breathing problems. An autopsy of the last resident revealed the 
presence of toxic or excessive levels of drugs that likely caused the 
respiratory problems and contributed to the development of pneumonia 
and to death.

For some referrals, the coroner found evidence of multiple care 
problems. For example, a 1999 referral involved a decedent with a 9-
square inch pressure sore on her lower back, a gangrenous foot, and 
ants on her feeding tube and wounds. According to the resident's 
daughter, the odor in her mother's room at the nursing home was so 
great that she had to leave. The autopsy attributed the gangrene to 
arteriosclerosis that restricted the blood supply to her legs but also 
found that the resident suffocated when dried mucus that had 
accumulated in her mouth broke off and blocked her breathing passage. 
According to the MFCU, her wounds and oral care appeared to have been 
neglected for some time.

The 86 cases of suspected resident neglect occurred in 27 nursing 
homes.[Footnote 16] Although it is difficult to precisely identify the 
proportion of Pulaski County nursing homes that had referrals because 
facilities closed and opened during the time period we examined, over 
half of the 27 homes had three or more referrals (see fig. 2). Fourteen 
homes accounted for almost 80 percent of the referrals. Some homes had 
a pattern of referrals spanning several years. For example, one home 
had seven referrals--one in 1999, two in 2000, two in 2001, and another 
two in 2002. Three of these seven referrals involved stage IV pressure 
sores, some of which were blackened with dead tissue, and one referral 
involved a resident who died because of an overdose of drugs 
administered by the nursing home. Nineteen of the 27 nursing homes were 
referred by the Pulaski County coroner, many of them more than once, 
because the deceased residents had pressure sores (see app. I). Eleven 
of the 12 referrals for one home involved pressure sores.[Footnote 17] 
The standard surveys of these homes, however, infrequently raised 
concerns about the care provided to prevent and treat pressure sores. 
As of November 2003, 15 of the 19 homes had not been cited on any of 
the previous four standard surveys for a pressure sore deficiency at 
the actual harm level or higher, while 3 homes each had one such 
deficiency.[Footnote 18]

Figure 2: Number of Pulaski County Coroner Referrals of Suspected 
Neglect, by Nursing Home, July 1999 through December 2003:

[See PDF for image]

[End of figure]

The State Survey Agency's Investigation of Coroner Referrals Often 
Understated Neglect of Residents:

According to Arkansas state survey agency officials, the agency 
received 36 coroner referrals of suspected resident neglect, less than 
half of the 86 referrals the coroner said he made. The agency's 
investigations of these coroner referrals often understated serious 
care problems--both when neglect was substantiated and not 
substantiated (see app. II). Even in the majority of substantiated 
referrals, the state survey agency failed to cite serious deficiencies 
involving care problems for the decedents who were the subject of the 
referrals, in effect not confirming the predominant care problems 
identified by the coroner. The MFCU's investigations of many of these 
same referrals, however, frequently found that facilities had been 
negligent in caring for the decedents by identifying serious lapses in 
care. In half of the referrals not substantiated by the state survey 
agency, either the MFCU investigation found neglect or we questioned 
the basis for the "not substantiated" findings, and our concerns were 
confirmed by a professor of nursing with expertise in long-term care. 
Moreover, the MFCU found inconsistencies in the medical records for 
some decedents, raising a question about the state survey agency's 
conclusion that the same records indicated care had been provided.

Fewer than Half of the Coroner Referrals Were Received by the State 
Survey Agency:

Although the Pulaski County coroner told us that he had referred 86 
cases of suspected resident neglect from July 1999 through December 
2003, Arkansas state survey agency officials said that they received 
fewer than half (see table 4) and investigated all but one of the 
referrals they received.[Footnote 19] MFCU officials, however, 
indicated that they received almost three-fifths of the 86 
referrals.[Footnote 20] The MFCU received all but three of the 
referrals received by the state survey agency. Overall, 32 coroner 
referrals were not investigated by either agency.[Footnote 21]

Table 4: Pulaski County Coroner Referrals Received by State Survey 
Agency and MFCU, July 1999 through December 2003:

Year of resident's death: 1999[A]; 
Number of referrals: 20; 
Received by state survey agency: 4; 
Received by MFCU: 2.

Year of resident's death: 2000; 
Number of referrals: 24; 
Received by state survey agency: 17[B]; 
Received by MFCU: 22.

Year of resident's death: 2001; 
Number of referrals: 23; 
Received by state survey agency: 11; 
Received by MFCU: 17.

Year of resident's death: 2002; 
Number of referrals: 18; 
Received by state survey agency: 3; 
Received by MFCU: 9.

Year of resident's death: 2003[C]; 
Number of referrals: 1; 
Received by state survey agency: 1; 
Received by MFCU: 1.

Year of resident's death: Total; 
Number of referrals: 86; 
Received by state survey agency: 36[B]; 
Received by MFCU: 51[D]. 

Source: Coroner's office, Pulaski County; Arkansas state survey agency; 
and the MFCU.

[A] The Arkansas law became effective in July 1999 and the state survey 
agency received its first referral on September 27, 1999.

[B] Although the state survey agency lacked routine documentation 
describing its investigation of two coroner referrals, we included 
these referrals in our analysis because agency officials were able to 
tell us the outcome of the investigations. However, we excluded three 
other coroner referrals that survey agency officials told us they had 
received but for which they could neither document their investigations 
nor tell us the outcomes.

[C] The coroner eventually referred six 2003 resident deaths to the 
state survey agency and the MFCU. We excluded five of the six because 
they were not actually referred until early 2004.

[D] The MFCU received all but 3 of the 36 referrals received by the 
state survey agency.

[End of table]

According to the coroner, all the referrals were hand delivered rather 
than mailed to ensure that none were lost, but officials at the state 
survey agency and the MFCU told us that they did not know how referrals 
were delivered.[Footnote 22] We found inconsistencies in agency and 
MFCU recordkeeping. For example, the state survey agency told us that 
it had received five referrals on the coroner's list but could not 
provide a copy of any complaint intake forms for them or the results of 
its investigations for three of the five referrals. While a MFCU 
official told us that three other referrals were forwarded to it by the 
state survey agency, not the coroner, the state survey agency had no 
record of these referrals.

The 50 coroner referrals not received by the state survey agency were 
similar to those received. For example, one decedent had large, 
unexplained bruises on her chest, upper right arm, and back, including 
a mass of more than nine square inches that likely consisted of clotted 
blood from a broken blood vessel. A second decedent had five pressure 
sores--lower leg, heel, lower back, and both hips; according to the 
coroner's report, one of the pressure sores was "draining a dark-
colored, pus-filled, and foul-smelling fluid." The decedent's medical 
records indicated admission to the nursing home 6 months before death 
without any pressure sores. A third decedent had 10 pressure sores with 
dead tissue on one heel. A fourth decedent had a large tear on the 
upper arm, a pressure sore on one foot with dead tissue extending to 
mid-calf, and a stage IV pressure sore on one buttock. Three coroner 
referrals not received by the state survey agency but investigated by 
the MFCU found negligent care that resulted in settlements and payments 
by the facilities.

Serious Deficiencies Seldom Cited for Care Problems Involving 
Decedents, Even Though Referrals Were Often Substantiated:

With the exception of one home, we found that state survey agency 
complaint investigations of coroner referrals often failed to cite 
serious deficiencies for the decedents being investigated, even though 
over half of the referrals investigated were substantiated. Overall, 
the state survey agency substantiated 22 of the 36 coroner referrals it 
investigated at 12 nursing homes.[Footnote 23] However, the state 
survey agency cited actual harm or higher-level deficiencies in quality 
of care, abuse/neglect, or both for only 11 of these 22 substantiated 
referrals (see table 5).

Table 5: Extent to which the State Survey Agency Cited Serious 
Deficiencies for Substantiated Referrals from the Pulaski County 
Coroner:

Nursing home: A; 
Number of referrals substantiated: 7; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
Deficiency cited: 6 decedents; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 1 decedent.

Nursing home: C; 
Number of referrals substantiated: 2; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 2 decedents.

Nursing home: E; 
Number of referrals substantiated: 2[A]; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
Deficiency cited: 1 decedent; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 1 decedent.

Nursing home: I; 
Number of referrals substantiated: 2[A]; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
Deficiency cited: 1 decedent; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 1 decedent.

Nursing home: L; 
Number of referrals substantiated: 2; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 2 decedents.

Nursing home: B; 
Number of referrals substantiated: 1; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 1 decedent.

Nursing home: D; 
Number of referrals substantiated: 1[A]; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 1 decedent.

Nursing home: N; 
Number of referrals substantiated: 1; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
Deficiency cited: 1 decedent. 

Nursing home: Q; 
Number of referrals substantiated: 1; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
Deficiency cited: 1 decedent[B]. 

Nursing home: T; 
Number of referrals substantiated: 1; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 1 decedent.

Nursing home: X; 
Number of referrals substantiated: 1; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 1 decedent.

Nursing home: AA; 
Number of referrals substantiated: 1; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
Deficiency cited: 1 decedent. 

Nursing home: Total; 
Number of referrals substantiated: 22; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
Deficiency cited: 11; 
Deficiencies cited for coroner referred decedents at actual harm or 
higher level in quality of care and/or abuse/neglect: 
No deficiency cited: 11. 

Source: Arkansas state survey agency complaint investigation reports.

Note: Of the 22 substantiated referrals for residents who died at these 
homes, 18 were referred for pressure sores, two for bruising, one for a 
fall, and one for catheter problems.

[A] One referral was substantiated without any deficiencies. Even 
though the investigation revealed a past violation of federal 
standards, no deficiencies were cited because the home had a quality 
assurance program in place that identified the deficient practice, took 
appropriate corrective action prior to the investigation, and 
implemented measures that prevented a recurrence.

[B] Past noncompliance was cited for pressure sores at the immediate 
jeopardy level. Past noncompliance may be cited when no current 
violation of federal standards is found but the past violation was so 
egregious that the home should be cited for a deficiency and a civil 
monetary penalty imposed.

[End of table]

Nursing home A accounted for 6 of 11 citations for neglect of decedents 
at the actual harm or higher level (see table 5). The neglect involved 
inadequate care to prevent and treat pressure sores. The home was 
terminated from participation in Medicare and Medicaid in November 
2000, about 5 months after the first of a series of state survey agency 
complaint investigations initiated as a result of coroner 
referrals.[Footnote 24] Although the agency found that six of the 
coroner-referred decedents had been neglected by home A, the results of 
this home's March 2000 standard survey and the timing and results of 
some complaint investigations prior to its closure were inconsistent 
with those findings. We identified the following inconsistencies in 
surveys of this home:

* The home's March 3, 2000, standard survey found no deficiencies other 
than a C-level deficiency (potential for minimal harm) for inadequate 
housekeeping and maintenance, including a water-damaged ceiling tile, 
soiled carpeting, and worn upholstery on a sofa. The survey's resident 
sample, however, included a resident who died in mid-April, less than 6 
weeks after the standard survey, with five stage IV pressure sores.

* Even though the photos accompanying coroner referrals for four 
decedents suggested serious, systemic care problems, the state survey 
agency did not initiate a complaint investigation until May 16, 2000, 
about 3 weeks after receiving the referrals, which were all sent at the 
same time.[Footnote 25] CMS guidance requires that such complaints be 
investigated within 2 to 10 days, but state survey agency officials 
told us that they often gave a higher priority to investigating serious 
complaints for living residents. The state survey agency cited actual 
harm deficiencies for quality of care for three of the four decedents 
because similar care problems were found for current residents at the 
facility.

* The May 16 investigation, however, included March 27 and April 3 
complaints from family members of one resident alleging that he (1) had 
deteriorating, unbandaged pressure sores and (2) was left wet and 
soiled for long periods, a situation that could have contributed to 
worsening pressure sores.[Footnote 26] These allegations went 
uninvestigated for almost 2 months until they were confirmed in May. 
Investigation of a subsequent July complaint for this resident 
documented further deterioration of the pressure sores that began on 
his buttocks and extended all the way up his back.

* Although this same resident was included in the sample of a 
subsequent September 2000 complaint investigation, his continuing 
pressure sores were not cited during that investigation. A final 
complaint investigation at the home about 6 weeks later--following the 
resident's death--found that he had 28 pressure sores when he died; 7 
of the pressures sores, 2 of which were stage IV, did not have a 
physician's order for treatment.

Only five of the referrals for decedents at other homes resulted in the 
citation of a deficiency at the actual harm or higher level for the 
decedent in question (see table 5). The deficiencies cited involved 
quality of care or abuse/neglect for four of the five decedents. For 
one of the five decedents, who had numerous, serious pressure sores, no 
current violations of federal standards were identified during the 
investigation of the coroner's referral. Under CMS guidance, surveyors 
would need to identify a current resident with inadequate treatment to 
prevent and heal pressure sores in order to cite a pressure sore 
deficiency at the actual harm level. However, the surveyor determined 
that an egregious past violation of federal standards involving this 
decedent warranted citing a deficiency known as past noncompliance and 
imposition of a civil monetary penalty.[Footnote 27] Because the 
deficiency occurred in the past and was assumed to have been corrected 
by the facility, a plan of correction was not required and no 
deficiency could be cited for the underlying care issue--inadequate 
treatment to prevent and heal pressure sores.[Footnote 28] Although 
Arkansas state survey agency officials told us that they frequently 
cite past noncompliance, we found that it was cited for only one 
coroner referral.[Footnote 29]

For the remaining 11 substantiated coroner referrals, the state survey 
agency cited either no deficiency for the decedent or cited a 
deficiency at a level lower than actual harm for the predominant care 
problem identified by the coroner, even though the MFCU's 
investigations found neglect for six of the decedents, in effect 
substantiating the existence of serious care problems in these cases 
(see table 6). The MFCU's findings raise a question about the 
thoroughness of state survey agency complaint surveys. Because the 
nature of the problems identified by the coroner in these 11 referrals 
did not appear to differ significantly from referrals for home A that 
were substantiated at the actual harm or higher level (see table 5), we 
asked the state survey agency to review the 11 referrals to determine 
why no serious deficiencies were cited and if past noncompliance should 
have been cited. Noting their current heavy workload, state survey 
agency officials agreed to review 2 of the 11 cases. They told us that 
they could not cite an actual harm pressure sore deficiency for either 
decedent because the decedents were not in the facility at the time of 
the complaint investigations and under CMS guidance, surveyors would 
need to identify a current resident with inadequate treatment to 
prevent and heal pressure sores in order to cite a pressure sore 
deficiency at the actual harm level. In one of these cases, however, 
agency officials told us that they should have cited past noncompliance 
because of the serious nature of the decedent's condition.

Table 6: Six Coroner Referrals Where the MFCU Found Negligence by the 
Nursing Home but the State Survey Agency either Cited No Deficiency or 
a Deficiency at Less than Actual Harm for the Decedent:

Home: B; 
Resident: Resident 59; 
Problems identified by coroner: Numerous pressure sores; 
ulcers on the roof of decedent's mouth; 
leaking feeding tube; 
Results of investigation: State survey agency: No deficiency was cited 
for this decedent, but a deficiency for pressure sores was cited at the 
D level for another resident; 
Results of investigation: MFCU: Negligence found and fraud case is 
pending.

Home: E; 
Resident: Resident 5; 
Problems identified by coroner: Numerous pressure sores; 
dirty unchanged bandages; 
ulcer on the roof of decedent's mouth; 
resident and medical equipment covered with live ants; 
foot and ankle in advanced stages of decomposition; 
Results of investigation: State survey agency: No deficiency was cited 
for this decedent; 
Results of investigation: MFCU: Inadequate care found, leading to a 
$30,000 settlement agreement with the home.[A].

Home: I; 
Resident: Resident 40; 
Problems identified by coroner: Numerous pressure sores; 
ulcers on the roof of decedent's mouth; 
Results of investigation: State survey agency: No deficiencies cited 
for this decedent; 
Results of investigation: MFCU: "Absence of care" found and fraud case 
is pending.

Home: L; 
Resident: Resident 25; 
Problems identified by coroner: Pressure sores and skin discoloration; 
Results of investigation: State survey agency: Cited the home for a B-
level deficiency for this resident due to incomplete records. (It also 
cited pressure sores at the immediate jeopardy level but not for this 
decedent); 
Results of investigation: MFCU: Included among 42 residents of a chain 
of nursing homes whose care the MFCU found negligent, leading to a $1.5 
million settlement with the owners.[A].

Home: L; 
Resident: Resident 52; 
Problems identified by coroner: Numerous pressure sores and skin tears; 
Results of investigation: State survey agency: Cited the home for two 
B-level deficiencies for this decedent, both related to the home's 
recordkeeping.[B]; 
Results of investigation: MFCU: Included among 42 residents of a chain 
of nursing homes whose care the MFCU found negligent, leading to a $1.5 
million settlement with the owners.[A].

Home: T; 
Resident: Resident 48; 
Problems identified by coroner: Bruises on face and head, possibly due 
to falls; 
family told coroner that the home did not monitor resident properly to 
avoid falls; 
Results of investigation: State survey agency: Cited the home for two 
E-level violations for this decedent--one for improper use of 
restraints and one for accident prevention; 
Results of investigation: MFCU: Found evidence of neglect, but MFCU 
cited insufficient resources as the reason for not pursuing the case. 

Source: GAO analysis of Pulaski County coroner referrals and Arkansas 
state survey agency and MFCU investigative reports.

[A] As of January 2004, 12 coroner referrals were included in MFCU 
settlements totaling $1,767,000 with five nursing homes. Some of the 
settlements, however, involved residents who were not referred by the 
Pulaski County coroner. For example, the largest settlement for $1.5 
million involved 42 residents, 2 of whom were referred by the coroner.

[B] The state survey agency noted that this home had been cited for 
immediate jeopardy for pressure sores during a survey conducted about 5 
weeks before this decedent's death. Although the decedent was a 
resident of the home during the earlier survey, she was not included in 
the sample of residents reviewed at that time.

[End of table]

State Survey Agency Decision Not to Substantiate Some Coroner Referrals 
Was Questionable:

On the basis of the MFCU's investigations and our own review, we 
question the state survey agency's decision not to substantiate more of 
the coroner's referrals or forward them to another agency for further 
investigation. Overall, the state survey agency did not substantiate 14 
of the 36 coroner referrals that it investigated.[Footnote 30] Although 
we did not assess each of the 14 unsubstantiated referrals in detail, 
the state survey agency's findings for 7 decedents were challenged 
either by the results of the MFCU's investigations or by an expert 
review conducted at our request. Both the MFCU and our expert noted 
omissions and contradictions in the medical records of some of the 14 
decedents, raising a question about the state survey agency's 
conclusions that the same records indicated care had been provided.

The MFCU's investigations identified neglect of two decedents that the 
state survey agency failed to substantiate.[Footnote 31] In one of the 
cases, the MFCU found that the nursing home failed to (1) accurately 
assess changes in the resident's status, allowing the resident to 
develop stage II pressure sores before the staff was even aware that he 
had a skin problem; (2) track the resident's ability to perform certain 
basic activities of daily living; (3) routinely monitor his weight 
despite continued weight loss; and (4) follow physician orders, 
sometimes delaying prescribed treatment. In the other case, the MFCU 
found that the nursing home failed to provide necessary treatment, 
rehabilitation, care, food, and medical services. In particular, the 
resident had no skin breakdown upon admission to the facility. But 7.5 
months later, she had six pressure sores, including one on her right 
hip that was almost 4 inches across and had progressed to stage IV and 
two others that had progressed to stage III. There was no comprehensive 
care plan to address the resident's pressure sores. Other care was also 
found negligent. For example, during a hospital stay about 2 months 
before the resident's death, the hospital found a large area on the 
back of her tongue with a thick buildup of saliva that had not been 
properly cleaned at the nursing home for up to 7 days.

For five other coroner referrals not substantiated by the state survey 
agency, the expert agreed that we had a basis to question the state 
survey agency's findings.[Footnote 32] For example, the expert found 
that (1) some facilities were not removing the dead tissue around 
pressure sores; (2) the color of one decedent's skin suggested it was 
urine stained, a situation that contributes to skin breakdown and 
infection; and (3) two decedents were not receiving oral care, the lack 
of which the expert characterized as "profound" for one decedent. For 
three of the five cases, the expert found evidence that neglect 
contributed to the residents' physical condition as documented in the 
coroner's referrals. In general, the expert found the degree of skin 
damage and pressures sores in the reviewed cases to be "very 
suspicious" and concluded that preventive measures, such as special 
mattresses, would have precluded the development of such severe 
pressure sores, despite the decedents' health status. The expert also 
found the scarce and inconsistent mention of pain assessment and 
management to be suspicious enough to warrant concern about 
abuse.[Footnote 33] Although three of the five deceased residents were 
receiving hospice care at the nursing home, our expert questioned the 
apparent lack of care for these residents. Ideally, hospice care 
provides consistent pain assessment and intervention, measures to 
prevent further skin breakdown and the associated discomfort, and local 
treatment to minimize odor. These standards are inconsistent with not 
changing pressure sore dressings, even if a family member asks not to 
have them changed. Finally, our expert questioned if some of the 
facilities had a quality assurance process in place to identify 
systemic problems, such as the incidence of pressure sores. We found 
that the state survey agency had cited the facility where two of the 
five decedents had resided for immediate jeopardy regarding the federal 
requirements to maintain a quality assurance committee that meets 
regularly. This deficiency was cited about 9 months before and 9 months 
after the residents' deaths.

In two of the five cases, the state survey agency had concluded that 
serious pressure sores were acquired during hospitalizations but did 
not identify other care problems noted by our expert consultant. For 
example, one of the nursing homes failed to remove dead tissue around 
the pressure sores, an indication of poor care. In addition, the expert 
noted the lack of oral care for one of these decedents, again raising 
questions about the quality of care provided by the home. Even if the 
state survey agency had justifiably concluded that the decedents' 
serious pressure sores were acquired during hospitalizations rather 
than in the nursing homes where the residents died, neither case was 
referred to Arkansas's Division of Health Facility Services, the entity 
responsible for oversight of hospitals that serve Medicare and Medicaid 
beneficiaries. State survey agency officials agreed that it might have 
been appropriate to refer such cases to this division. CMS's 1999 
guidelines for complaint investigations instruct state survey agencies 
to refer cases to another agency when it lacks jurisdiction.

Omissions and contradictions in the medical records for four other 
decedents whose referrals were not substantiated raise a question about 
the state survey agency's conclusions that these same records indicated 
care had been provided. For example, in two cases, the MFCU found 
numerous omissions in the facility's care and treatment records, such 
as missing entries on the medication records and nurse assistant flow 
sheets, as well as a discrepancy as to when a pressure sore was first 
noted. In another case, the MFCU concluded that there were so many 
documentation problems that it was difficult to follow the course of 
one decedent's care, including late entries that were "questionable and 
too many." In addition, in another case, our expert consultant found 
that the seriousness of a pressure sore was understated by the home.

Federal surveyors also found evidence that state surveyors missed or 
failed to cite deficiencies, including some that harmed residents. A 
March 2000 federal comparative survey of an Arkansas nursing home, some 
of whose residents were the subject of coroner referrals, found care 
issues that had not been identified by the state survey 
agency.[Footnote 34] A comparative survey is conducted within 2 months 
of a state survey to independently verify its accuracy. Overall, 
federal surveyors cited 19 health-related deficiencies that state 
surveyors did not, including failure of the nursing home to develop and 
implement effective procedures to prevent neglect and abuse of 
residents. Three of the 19 deficiencies that state surveyors did not 
identify were cited by federal surveyors at the actual harm level: 
failure to provide (1) necessary care and services to maintain a 
resident's highest well being; (2) good nutrition, grooming, and 
personal and oral hygiene; and (3) treatment and services to increase 
and prevent further degradation in a resident's range of motion. 
Federal surveyors also cited a widespread failure in infection control 
procedures at the potential for more than minimum harm level. One of 
the coroner-referred deaths at this facility occurred within 6 weeks of 
both the state and federal surveys that were about 1 month apart. The 
decedent arrived in the hospital emergency room with a fever of 104, 
an indication of infection, as well as ragged tears on his right knee 
and shin and serious pressure sores on both buttocks. Though 
documentation was not available, a state survey agency official told us 
that this complaint was unsubstantiated.

Resident Neglect May Go Undetected Because of Well-Documented Oversight 
Weaknesses:

Because of oversight weaknesses that are well-documented nationwide, 
neglect of nursing home residents may often go undetected. We found the 
same systemic oversight weaknesses in the Arkansas state survey 
agency's investigation of coroner referrals that our prior work on 
nursing home quality of care identified nationwide. These oversight 
weaknesses include (1) complaint investigations that understated the 
seriousness of the allegations and were not conducted promptly; (2) 
annual standard survey schedules that allowed nursing homes to predict 
when the next survey would occur; (3) survey methodology weaknesses, 
coupled with surveyor reliance on misleading medical records, that 
resulted in overlooked care problems; and (4) a policy that did not 
always hold nursing homes accountable for care problems identified 
after a resident's death.

Serious Complaints Were Inappropriately Prioritized and Not Promptly 
Investigated:

In 1999, we reported that many survey agencies in the 14 states we 
examined often assigned inappropriately low investigation priorities to 
complaints and failed to investigate serious complaints 
promptly.[Footnote 35] Such practices may delay the identification and 
correction of care problems that may involve other residents of a 
nursing home in addition to the resident who is the subject of the 
complaint. Based on our draft report, CMS reviewed the Arkansas state 
survey agency's prioritization of the 36 coroner referrals the agency 
said it received. CMS concluded that about 31 percent of the referrals 
should have been prioritized for more prompt investigation.[Footnote 
36] Furthermore, CMS found that 5 referrals prioritized by the state as 
requiring an investigation within 10 working days suggested the 
potential for immediate jeopardy and should have been prioritized for 
investigation within 2 working days.[Footnote 37] The state survey 
agency prioritized 6 other referrals as not requiring investigation for 
up to 45 days, but CMS indicated that 1 of these referrals should have 
been prioritized for investigation within 2 days, and the remaining 
referrals within 10 working days (actual harm).[Footnote 38]

Although the state survey agency classified most of the 36 referrals as 
requiring investigation within 10 working days, we found a significant 
disparity between the prioritization it assigned and the time it 
actually took to conduct the investigations. As shown in figure 3, 16 
referrals were investigated in 10 working days or less and 19 referrals 
took between 11 and 290 working days to investigate.[Footnote 39] 
Identifying time frames in terms of working days, as CMS's guidance 
requires, however, understates the actual elapsed time between receipt 
and investigation of referrals. The average elapsed time from the date 
the survey agency received a referral until it initiated its 
investigation was 46 calendar days. Seven referrals were not 
investigated for between 91 and 425 calendar days and the investigation 
of an additional 11 referrals took between 21 and 90 calendar days (see 
fig. 3). State survey agency officials told us that because of surveyor 
turnover and the number of complaints received from all sources, the 
agency could not investigate all coroner complaints quickly; CMS has 
identified untimely complaint investigations in many other states. 
Moreover, Arkansas state survey agency officials told us that they gave 
priority to allegations involving residents who were still living in a 
facility over comparable allegations involving deceased residents, even 
though the coroner's referrals were accompanied by photos that 
suggested the possibility of systemic care problems.

Figure 3: Elapsed Working and Calendar Days between Receipt of 
Coroner's Referral and Start of Investigation by Arkansas State Survey 
Agency:

[See PDF for image]

Note: One of the 36 referrals is excluded from this figure because the 
state survey agency was unable to identify the date the referral was 
received from the coroner.

[End of figure]

Predictable Surveys Allow Nursing Homes to Conceal Care Problems:

In 1998 and subsequent work, we found that nursing homes could conceal 
care problems if they chose to do so because annual state surveys were 
often predictable.[Footnote 40] For example, a home could (1) 
significantly change its level of care, food, and cleanliness by 
temporarily augmenting its staff just prior to or during the period of 
the survey and (2) adjust resident records to improve the overall 
impression of the home's care. We believe that the striking disparity 
between annual survey findings that failed to identify serious problems 
in preventing and treating pressure sores and the numerous instances of 
serious pressure sores identified by the coroner is partly the result 
of the predictability of annual surveys. In July 2003, we reported that 
standard surveys in Arkansas, as well as those nationwide, continued to 
be highly predictable.

In 2003, we reported that the timing of 36 percent of Arkansas's most 
recent surveys (34 percent nationwide) could have been predicted by 
nursing homes.[Footnote 41] We considered nursing home surveys 
predictable if homes were surveyed within (1) 15 days of the 1-year 
anniversary of their prior survey (28 percent for Arkansas) or (2) 1 
month of the maximum 15-month interval between standard surveys (8 
percent for Arkansas).[Footnote 42] The director of the Arkansas state 
survey agency acknowledged that the predictability of the state's 
standard surveys allowed homes to mask problems by having more staff on 
hand during surveys. On the basis of the finding in our 2003 report, 
she told us she has tried to reduce survey predictability, in part by 
using computer programs to vary the timing of homes' surveys. For 168 
of Arkansas's approximately 236 nursing homes surveyed since our last 
report (August 1, 2003, through June 22, 2004), 22.6 percent of the 
surveys were predictable.

In 1998, we recommended that CMS segment the standard survey into more 
than one review throughout the year, simultaneously increasing state 
surveyor presence in nursing homes and decreasing survey 
predictability.[Footnote 43] Although CMS disagreed with segmenting the 
survey, it did recognize the need to reduce predictability. CMS 
directed states in 1999 to (1) begin at least 10 percent of standard 
surveys outside the normal workday (either on weekends, early in the 
morning, or late in the evening) and (2) avoid scheduling, if possible, 
a home's survey for the same month of the year as the home's previous 
standard survey. We reported previously that CMS's focus on so-called 
staggered surveys, though beneficial, was too limited to reduce survey 
predictability.[Footnote 44]

Survey Methodology Weaknesses and Misleading Medical Records Contribute 
to Undetected Care Problems:

Our 1998 work on California nursing homes revealed that surveyors may 
overlook significant care problems because (1) the federal survey 
protocol they follow does not rely on an adequate sample for detecting 
potential problems and their prevalence and (2) some resident medical 
records omit or contain misleading information.[Footnote 45] Because 
CMS has not yet completed the redesign of the survey methodology, 
nearly 7 years later Arkansas surveyors, as well as those in other 
states, still rely on a flawed survey methodology to detect resident 
care problems. As noted earlier, omissions and contradictions in the 
decedents' medical records, as well as the coroner's photos, sometimes 
raised questions about whether appropriate care had been provided in 
cases the state survey agency did not substantiate.

Our 1998 report recommended that CMS revise federal survey procedures 
by using a stratified random sample of resident cases and reviewing 
sufficient numbers and types of resident cases. Under development since 
1998, CMS's redesigned survey methodology is intended to more 
systematically target potential problems at a home and give surveyors 
new tools to better document care outcomes and conduct on-site 
investigations. Use of the new methodology could result in survey 
findings that more accurately portray the quality of care provided by a 
nursing home to all residents. CMS officials told us that the new 
methodology would be piloted in 2005 in conjunction with an evaluation 
that compares its effectiveness with that of the current survey 
methodology. Our work in Arkansas suggested the existence of sampling 
problems, underscoring the importance of implementing the revised 
survey methodology. For example, three residents with serious pressure 
sores who died on March 7, March 29, and April 3, 2000, and were the 
subject of coroner referrals were not included in the resident sample 
for one home's March 3, 2000, annual standard survey. The survey failed 
to identify any pressure sore or other quality of care deficiencies. It 
is difficult to understand how residents with such serious care 
problems could have been omitted from the survey. In addition, the 
extent of the physical deterioration of some decedents where the MFCU 
identified neglect but the state survey agency did not find similar 
problems for current residents also raises a question about state 
survey agency sampling methodology because the seriousness of 
decedents' conditions suggested that care problems were systemic.

In some coroner referrals that the state survey agency did not 
substantiate, surveyors noted that the medical records indicated that 
care had been provided. However, the MFCU found omissions and 
contradictions in decedents' medical records, including missing entries 
and late entries that were "too many and questionable." The medical 
record for one decedent showed the resident's height as 10 inches 
different from the height in her nutritional assessment (height is an 
important factor in determining a resident's appropriate weight). Since 
surveyors screen residents' medical records for indicators of improper 
care, misleading or inaccurate data may result in care deficiencies 
being overlooked. We also found evidence that Arkansas surveyors took 
medical records at face value even when these records were contradicted 
by color photos that documented decedents' physical conditions. For 
example, our expert consultant found that the coroner's photos of one 
decedent clearly showed that dead tissue around pressure sores had not 
been removed even though the state surveyor cited medical records 
indicating such care was provided just 11 days before the resident's 
death. The coloration of the same decedent's skin also suggested that 
she was left in her own waste for extended periods. However, the 
surveyor noted that the family's concern about staff's unresponsiveness 
to resident call lights was not substantiated because residents who 
were interviewed said that staff response was prompt.

Under CMS Policy, Nursing Homes Not Always Held Accountable for Past 
Noncompliance:

In our current work, we found that many Arkansas nursing homes with 
coroner referrals escaped accountability for providing poor care when 
the state survey agency investigated the neglect of nursing home 
residents after their deaths. We believe that CMS's vague policy on 
past noncompliance is partly responsible for this situation. First, the 
Arkansas state survey agency did not always cite past noncompliance 
when warranted. For example, the MFCU found that nursing homes had 
neglected eight decedents referred by the coroner but the state survey 
agency either cited no deficiency for the decedents, cited a deficiency 
at a level lower than actual harm for the predominant care problems 
identified by the coroner, or found the referrals to be 
unsubstantiated. According to state survey agency officials, care 
problems similar to those of the decedents were not identified in a 
sample of current residents and, under CMS policy, the decedents' care 
problems were assumed to have been identified and corrected by the 
home. Second, for the one coroner referral that the Arkansas state 
survey agency did cite for past noncompliance, the home was not 
required to prepare a plan of correction because no current deficiency 
was identified. When past noncompliance is identified, it is recorded 
in OSCAR and on CMS's Nursing Home Compare Web site simply as past 
noncompliance without additional information on the specific deficient 
practice(s), such as failure to prevent and treat pressure sores.

Moreover, CMS policy discourages citing past noncompliance unless the 
violation is egregious. Although CMS officials indicate that 
"egregious" includes noncompliance related to a resident's death, the 
term is undefined and is not used in CMS's scope and severity grid, 
which defines serious deficiencies as actual harm or immediate 
jeopardy.[Footnote 46] According to CMS officials, the objective of its 
survey policy is to focus surveys on current residents and care 
problems rather than on poor care provided in the past. We question 
CMS's assumption that if a decedent's care problem is not found to 
affect other residents at the time of a complaint investigation, it was 
identified earlier by the home and corrected.[Footnote 47] On the basis 
of our past work, it is also possible that the state survey agency's 
complaint investigation missed serious care issues. CMS and Arkansas 
state survey agency officials agreed that the poor physical condition 
of the decedents referred by the coroner suggested the existence of 
systemic care problems.

Conclusions:

The Arkansas law requiring coroner investigations of nursing home 
residents' deaths has helped to demonstrate that a small number of 
residents died in deplorable physical condition. The Arkansas law also 
confirmed the systemic weaknesses in state and federal oversight of 
nursing home quality of care that we identified in prior reports. On 
the basis of our prior work, we believe it is likely that serious care 
problems similar to those identified by the Pulaski County coroner 
exist in other Arkansas counties and in other states. Despite 
Arkansas's annual standard surveys and intervening complaint 
investigations, the negligent care provided to some residents before 
they died was never detected. In addition, complaint investigations 
initiated by the state survey agency in response to coroner referrals 
often failed to cite deficiencies for serious care problems that, 
according to the MFCU's investigations and our expert consultant, 
constituted or suggested neglect. Even when the Arkansas state survey 
agency found the neglect to be egregious, it did not hold the nursing 
home accountable by citing a little used deficiency known as past 
noncompliance.

We believe that CMS's policy on past noncompliance is flawed for three 
reasons. First, the policy involves considerable ambiguity. CMS does 
not define what constitutes an egregious violation yet implies that one 
exists where care problems relate to a resident's death, which is often 
difficult to demonstrate without an autopsy. Moreover, the term 
egregious is not clearly related to CMS's scope and severity grid, 
which defines serious deficiencies as actual harm or immediate 
jeopardy. Second, CMS's policy on past noncompliance does not hold 
homes accountable for negligence associated with a resident's death 
unless similar care problems are identified for current residents. CMS 
assumes that (1) similar care problems were not found because they have 
already been identified and corrected by the home and (2) the state 
survey agency did not miss the deficiency for current residents. 
However, our prior work demonstrated, and our work in Arkansas 
confirmed, that (1) nursing home records can contain misleading 
information or omit important data, making it difficult for surveyors 
to identify care deficiencies during their on-site reviews and (2) 
states' surveys of nursing homes do not identify all serious 
deficiencies, such as preventable weight loss and pressure sores. 
Third, the policy obscures the nature of the specific care problem, 
such as avoidable pressure sores, because the only deficiency reported 
in OSCAR and to the public on CMS's Nursing Home Compare Web site is 
"past noncompliance." We believe that the goal of preventing resident 
neglect by requiring nursing homes to comply with federal quality 
standards is inconsistent with a policy that discourages citing 
deficiencies because the harm was simply not egregious enough or was 
potentially missed for current residents.

Recommendations for Executive Action:

We recommend that the Administrator of CMS revise the agency's current 
policy on citing deficiencies for past noncompliance with federal 
quality standards by taking the following two actions:

* hold homes accountable for all past noncompliance resulting in harm 
to residents, not just care problems deemed to be egregious, and:

* develop an approach for citing such past noncompliance in a manner 
that clearly identifies the specific nature of the care problem both in 
the OSCAR database and on CMS's Nursing Home Compare Web site.

Agency and State Comments and Our Evaluation:

We provided a draft of this report to CMS; the Arkansas Department of 
Human Services, Office of Long Term Care (the state survey agency); the 
Arkansas MFCU; and the Pulaski County coroner. We received written 
comments from CMS and the survey agency, and oral comments from the 
coroner. The MFCU stated that it did not have comments. CMS concurred 
with our recommendations to revise its policy on citing deficiencies 
for past noncompliance and also identified more than a dozen additional 
initiatives it plans to take to address shortcomings in the nursing 
home survey process. CMS commented that the focus of its initiatives, 
such as additional guidance on the scope and severity of deficiencies, 
would be broad, in effect supporting our conclusion that the 
shortcomings we identified were systemic and not limited to Arkansas. 
CMS and the state survey agency raised concerns about (1) the 
discrepancy we reported between the number of referrals the coroner 
said he made (86) and the number the survey agency said it received 
(36) and (2) the relevance of survey predictability to complaint 
investigations based on coroner referrals. In addition, the state 
survey agency commented that we had understated the number of 
investigations it actually conducted. (CMS's comments are reproduced in 
app. III,[Footnote 48] and the state survey agency's comments are 
reproduced in app. IV.) Our evaluation of CMS, survey agency, and 
coroner comments covers the following six areas: CMS's past 
noncompliance policy, shortcomings in state survey agency 
investigations, lessons from implementing the Arkansas law, the number 
of coroner referrals and survey agency investigations, survey 
predictability and methodology redesign, and the impact of the Arkansas 
law.

CMS Policy on Past Noncompliance:

CMS agreed with our recommendations to revise its past noncompliance 
policy. We found that some nursing homes were not held accountable for 
serious deficiencies, even though some coroner referrals were 
substantiated, because of flaws in CMS's policy governing past 
noncompliance. Following a planned review of the policy, CMS indicated 
that it would (1) clarify expectations for the manner in which state 
survey agencies should address past deficiencies that have only 
recently come to light, (2) further define important terms, 
particularly egregious, (3) ensure that the specific nature of the care 
problems was identified in OSCAR, and (4) strengthen criteria for 
determining whether a nursing home had actually taken steps to address 
deficiencies that contributed to past noncompliance. CMS did not 
indicate whether it also planned to identify the specific nature of 
deficiencies associated with past noncompliance on its Nursing Home 
Compare Web site, but we continue to believe that posting such 
information would provide valuable assistance to consumers.

Shortcomings in State Survey Agency Investigations Nationwide:

Because of the seriousness of the shortcomings identified in our 
report, CMS sent a clinical fact-finding team to Arkansas for 3 days 
after receiving a draft of our report. The CMS clinical team found that 
some, but not all, of the referrals for which lower-level deficiencies 
were cited should have received a higher-level severity rating. In 
addition, from among six coroner referrals that were not substantiated 
by the survey agency, the team believed two should have been 
substantiated, a higher disparity rate than CMS said it has typically 
found for Arkansas surveys in general. As a result of its team's visit, 
CMS concluded that additional training and clarification of its 
guidance were warranted, including (1) increased training for state 
surveyors in determining the appropriate scope and severity of 
deficiencies as well as the development of additional CMS guidance and 
analysis of patterns in state deficiency citations and (2) the 
development of an advanced course in complaint investigations to be 
piloted in Arkansas and evaluated for potential expansion and 
replication nationwide. CMS noted that these initiatives would be 
applied broadly, a recognition that the shortcomings we identified were 
systemic and not limited to Arkansas.

While we fully support CMS's new initiatives, timely and sustained 
follow-up to ensure effective implementation is critical; earlier CMS 
initiatives to address these same problems were not timely or were 
ineffective. We reported in July 2003 that CMS began a complaint 
improvement project in 1999 but did not provide more detailed guidance 
to states until almost 5 years later.[Footnote 49] Similarly, we 
reported that CMS began developing more structured guidance for 
surveyors in October 2000 to address inconsistencies in how the scope 
and severity of deficiencies are cited across states, but the first 
installment on pressure sores had not yet been released as of September 
2004.[Footnote 50] Our 2003 report also noted that CMS began annual 
reviews of a sample of deficiency citations from each state in October 
2000 to identify shortcomings and the need for additional training, but 
CMS's recognition that additional guidance and training are required 
raises a question about the sufficiency and effectiveness of these 
reviews. Furthermore, we believe that other factors may be contributing 
to survey shortcomings. Our 2003 report noted that some state officials 
cited inexperienced surveyors, the result of a high turnover rate, as a 
factor contributing to the understatement of serious quality of care 
deficiencies.

CMS commented that the photos conveyed from the coroner's office were 
graphic, serious, and require careful investigation. The CMS clinical 
team found that the photos were very helpful in a number of 
investigations. We agree with CMS's view that the photos alone do not 
represent sufficient evidence to render a conclusion that there was 
poor care, neglect, or avoidable outcomes, or that the nursing home 
caused the death. On the basis of its visit to Arkansas, the CMS 
clinical team concluded that not all referred cases could be 
substantiated with the photos, medical records, and other information 
available to it; as we noted in the report, our expert consultant 
reached the same conclusion on two of the seven cases she reviewed. We 
nevertheless continue to believe that the state survey agency at times 
appeared to dismiss photographic evidence of potential neglect and to 
rely instead on observations of and interviews with current residents. 
In response to our findings, CMS said it would study the issues 
involved in the use of photos and would issue additional guidance for 
use by state survey agencies.

Lessons from Implementing Arkansas's Law on Nursing Home Deaths:

CMS made a number of observations about lessons from the Arkansas 
experience that would improve the effectiveness of mandatory reporting 
systems, such as the coroner referrals required by the Arkansas law. 
These lessons related to the implementation of the Arkansas law by 
local coroners and the quality and timeliness of referrals made by the 
Pulaski County coroner. We agree that these factors are important to 
the ability of state survey agencies to promptly and effectively 
complete their own investigations based on coroner referrals of 
potential neglect. However, because we lack the authority to evaluate 
the implementation of state laws, we excluded such an analysis from the 
scope of our work. We do have the authority to evaluate the performance 
of federally funded entities--such as the state survey agency and the 
MFCU--that are responsible for ensuring that Medicare and Medicaid 
nursing home residents receive quality care, and we therefore focused 
our work on how these entities responded to the cases referred to them.

In particular, CMS highlighted the lack of referrals from most Arkansas 
coroners and the processes followed by coroners, primarily the Pulaski 
County coroner, in making referrals to the state survey agency. During 
our interviews, the Pulaski County coroner and MFCU officials 
demonstrated their awareness of the absence of an enforcement mechanism 
in the state law to ensure that nursing homes and coroners comply with 
the law; the Pulaski County coroner told us that he intends to pursue 
this issue with the state legislature. According to CMS, the quality of 
the documentation provided by coroners did not conform to key 
principles of forensic science, such as embedded photo dating and 
subject identification, photo scale metrics and color charting, and 
interviews with residents' physicians. While the coroner referrals may 
have lacked these features, the referral packages we examined clearly 
identified the decedents, the time the coroner's office was notified of 
the deaths, and the time the coroner's staff arrived at the homes. It 
is also clear from the documentation that the photos were taken shortly 
after death. Requiring such a level of forensic evidence from the 
coroner substantially exceeds the burden of proof the state survey 
agency requires for other complaints filed, which is how the coroner 
referrals are treated. The coroner referrals are intended to be the 
starting point for the state's investigation, not a substitute for its 
own thorough investigation.

Both CMS and the state survey agency expressed concern about the 
elapsed time between the dates of death and the receipt of coroner 
referrals by the survey agency. In particular, they noted that our 
analysis excluded five referrals the coroner made in 2004 that related 
to deaths in 2003, with the elapsed times from the deaths to receipt of 
the referrals ranging from 222 to 400 days.[Footnote 51] We excluded 
these five referrals because they had not yet been referred when we 
completed our data collection for this report, which covered referrals 
for the period July 1999 through December 2003.[Footnote 52] In 
principle, we agree with CMS's view that the value of a timely 
investigation by the state survey agency can be influenced by the 
length of time associated with referrals, even though we found that the 
coroner's referral of several cases up to 4 months after the residents' 
deaths did not appear to have handicapped the investigations. For 
example, the state survey agency substantiated three coroner referrals 
with deficiencies at the actual harm and immediate jeopardy level even 
though the referrals were not received for between 65 and 106 calendar 
days after residents' deaths. Although the survey agency did not 
substantiate one coroner referral that was not received until 102 days 
after the resident's death, the MFCU found neglect. For the 36 
referrals the survey agency said it received from the coroner for the 
period we analyzed, the average elapsed time from the date of death 
until the coroner made his referral was 38 days (ranging from zero to 
180 days), whereas the average elapsed time from the date the survey 
agency received the referral until it initiated its investigation was 
46 days (ranging from zero to 425 days).[Footnote 53] Notwithstanding 
these elapsed times for coroner referrals and state investigations, CMS 
commented that it would study its priority criteria for complaint 
triage and refine its policy with regard to the treatment of and 
response to complaints.

Number of Coroner Referrals and State Survey Agency Investigations:

Both CMS and the state survey agency questioned the validity of the 
number of Pulaski County coroner referrals, commenting that we lacked 
independent verification of the number actually referred; they also 
believed that the report's language suggested referrals had been 
received but not investigated. We revised the report to make it clear 
that the coroner told us he had referred 86 cases of suspected neglect 
of deceased nursing home residents to the state survey agency and the 
MFCU for investigation (and, as noted below, we reviewed the related 
case documentation for each of the 86 referrals). We also revised the 
report to clarify that the state survey agency investigated the 36 
coroner referrals that it told us it had received.[Footnote 54] CMS 
asserted that the coroner was unable to provide its clinical team with 
a list of his referrals; however, CMS's comments do not reflect that 
the coroner's case files were not automated. We compiled a list of the 
86 referrals ourselves. Our list was based on documentation provided by 
the coroner for each of the cases he told us he referred, including a 
narrative summary describing the suspected neglect, copies of 
decedents' medical records, autopsy reports, and photos documenting the 
decedents' conditions. Although the state survey agency and the MFCU 
told us that they did not receive all 86 coroner referrals, we believe 
that the MFCU's receipt of almost three fifths of the coroner's 
referrals (compared with the state survey agency's receipt of fewer 
than half) provides independent corroboration that the Pulaski County 
coroner made more than 36 referrals during the 4.5-year period we 
examined. As noted in the report, the coroner was instrumental in 
securing passage of the law, a fact that is inconsistent with the 
suggestion that the coroner withheld referrals. To address the 
disparity in the number of referrals the coroner told us he made and 
the number the state survey agency and the MFCU told us they received, 
the coroner began requiring signed receipts in March 2004, a practice 
reflected in our draft report.

The state survey agency commented that we had understated the number of 
investigations of nursing home deaths it had conducted. The agency 
identified 22 investigations that, in most cases, were based on the 
receipt of a complaint from individuals other than the coroner.

* We excluded 9 of these 22 investigations because they were conducted 
prior to the residents' deaths. For example, one complaint of alleged 
rape of a 91-year-old resident was filed by a hospital that found the 
resident had a sexually transmitted disease. The complaint was not 
substantiated. The coroner's investigation of the resident's death 5 
months later resulted in a referral based on seven serious pressure 
sores on the decedent's feet, lower back, and hips, a problem that was 
not noted during the hospitalization.

* We revised our analysis to include 1 of the 22 cases because the 
coroner confirmed that he had indeed made the referral. Thus, we 
adjusted the number of coroner referrals from 85 in the draft report to 
86 in the final report. We also revised the number of referrals the 
state survey agency said it received from 35 to 36. We confirmed that 
this additional referral was not received or investigated by the MFCU.

* For 7 cases, we determined that the allegations in the non-coroner 
complaints were similar to the concerns raised by the coroner's 
investigations and have added footnotes in the appropriate sections of 
the report, depending on whether the investigations substantiated (2 
complaints) or did not substantiate (5 complaints) the complainants' 
allegations.

* For the remaining 5 cases, we made no changes in the report.[Footnote 
55] In one case, the survey agency's complaint investigation focused on 
an issue different from the suspected neglect identified by the 
coroner. In four other cases, the agency included the decedents' 
records in its resident samples during standard surveys. The decedents 
were not included in any deficiencies cited during these surveys and, 
importantly, the surveyors lacked the coroner's photos of pressure 
sores, which would have been particularly useful in raising questions 
about the care provided as documented in the decedents' medical 
records.

Survey Predictability and Methodology:

Both CMS and the state survey agency questioned the relevance of survey 
predictability to complaint investigations resulting from coroner 
referrals and suggested we delete this analysis from the final report. 
Neither organization commented on our assessment of the impact of 
survey methodology weaknesses and misleading medical records on 
detecting quality-of-care problems. We retained this analysis in the 
final report because we believe the issues of survey predictability and 
methodology are relevant to state survey complaint investigations of 
coroner referrals. Our 1998 and subsequent work found that predictable 
surveys allowed homes so inclined to (1) significantly change the level 
of care, food, and cleanliness by temporarily augmenting staff just 
prior to or during a survey, and (2) adjust resident records to improve 
the overall impression of the home's care.[Footnote 56] We also 
reported in 1998 that surveyors may overlook significant care problems 
during annual surveys because of survey methodology weaknesses and 
omissions or misleading information in resident medical records.

Although the predominant care problem identified in 67 percent of the 
coroner's referrals involved serious pressure sores, most of the 
nursing homes referred had not been cited for a pressure sore 
deficiency at the actual harm level or higher on any of their previous 
four standard surveys. We believe that the striking disparity between 
annual survey findings and the predominant care problems identified by 
the coroner relates to the predictability of annual surveys, weaknesses 
in survey methodology, and misleading medical records--all of which 
contribute to the phenomenon of undetected care problems. Our work in 
Arkansas suggested the existence of sampling problems in a home whose 
annual survey failed to detect any quality-of-care problems, even 
though three residents, all with serious pressure sores, died within 1 
month. The fact that none of these residents was included in the 
nursing home's annual standard survey underscores the importance of 
implementing a revised survey methodology that CMS has had under 
development for 7 years. Our report also provides several examples 
where misleading medical records contributed to the failure of the 
Arkansas state survey agency to detect care problems that the MFCU or 
our expert consultant identified and were obvious in some of the 
coroner's photos of decedents.

CMS further commented that our analysis of survey predictability 
resurrected prior reports and recommendations to which CMS has 
previously responded and that we failed to acknowledge CMS and state 
survey agency progress in reducing survey predictability. We believe 
that CMS's comments are inaccurate. In our 1998 report, we recommended 
segmenting the survey into more than one review throughout the year to 
reduce survey predictability. CMS responded to this recommendation by 
requiring that 10 percent of state annual surveys be conducted on 
weekends, at night, or early in the morning. Despite CMS's introduction 
of "off hour" surveys, we reported in 2003 that about one-third of 
state surveys remained predictable (36 percent in Arkansas). Contrary 
to CMS's comments, the draft report did acknowledge that Arkansas 
appeared to be making progress in reducing survey predictability 
through the use of computer programs to vary the timing of homes' 
surveys.

Impact of the Arkansas Law:

In oral comments, the Pulaski County coroner indicated that our report 
was fair and accurate. He also told us that he believes the law has had 
a significant, positive impact on the quality of care provided to 
nursing home residents in Pulaski County. In particular, he rarely 
finds decedents with serious pressure sores and the pressure sores he 
does find are not as serious as those in earlier referrals. He also 
cited the declining number of referrals--only six 2003 resident deaths 
were referred compared to 18 in 2002. He also provided technical 
comments that we incorporated as appropriate.

As arranged with your offices, unless you publicly announce its 
contents earlier, we plan no further distribution of this report until 
30 days after its issue date. At that time, we will send copies of this 
report to the Administrator of the Centers for Medicare & Medicaid 
Services and appropriate congressional committees. We also will make 
copies available to others upon request. In addition, the report will 
be available at no charge on the GAO Web site at http://www.gao.gov.

Please contact me at (202) 512-7118 or Walter Ochinko, Assistant 
Director, at (202) 512-7157 if you or your staffs have any questions. 
GAO staff who made key contributions to this report include Jack 
Brennan, Lisanne Bradley, Patricia A. Jones, and Elizabeth T. Morrison.

Signed by: 

Kathryn G. Allen: 
Director, Health Care--Medicaid and Private Health Insurance Issues:

[End of section]

Appendix I: Coroner Referrals for Pressure Sores and the Seriousness of 
Deficiencies Cited on Standard Surveys:

Nursing home: A; 
Number of coroner referrals for pressure sores: 11; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 1.

Nursing home: B; 
Number of coroner referrals for pressure sores: 5; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Actual harm or higher: 1; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 2.

Nursing home: C; 
Number of coroner referrals for pressure sores: 5; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 1.

Nursing home: D; 
Number of coroner referrals for pressure sores: 4; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Actual harm or higher: 1; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 1.

Nursing home: E; 
Number of coroner referrals for pressure sores: 3. 

Nursing home: F; 
Number of coroner referrals for pressure sores: 3; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 2.

Nursing home: G; 
Number of coroner referrals for pressure sores: 3. 

Nursing home: H; 
Number of coroner referrals for pressure sores: 3; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 2.

Nursing home: I; 
Number of coroner referrals for pressure sores: 3. 

Nursing home: J; 
Number of coroner referrals for pressure sores: 3. 

Nursing home: K; 
Number of coroner referrals for pressure sores: 4. 

Nursing home: L; 
Number of coroner referrals for pressure sores: 2; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Actual harm or higher: 1. 

Nursing home: M; 
Number of coroner referrals for pressure sores: 2. 

Nursing home: N; 
Number of coroner referrals for pressure sores: 1. 

Nursing home: O; 
Number of coroner referrals for pressure sores: 2. 

Nursing home: P; 
Number of coroner referrals for pressure sores: 1; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 2.

Nursing home: Q; 
Number of coroner referrals for pressure sores: 1; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 1.

Nursing home: R; 
Number of coroner referrals for pressure sores: 0; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 2.

Nursing home: S[B]; 
Number of coroner referrals for pressure sores: 1. 

Nursing home: T; 
Number of coroner referrals for pressure sores: 0. 

Nursing home: U; 
Number of coroner referrals for pressure sores: 0; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Actual harm or higher: 2; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 1.

Nursing home: V; 
Number of coroner referrals for pressure sores: 0; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 1.

Nursing home: W; 
Number of coroner referrals for pressure sores: 0; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 1.

Nursing home: X; 
Number of coroner referrals for pressure sores: 0. 

Nursing home: Y[B]; 
Number of coroner referrals for pressure sores: 0. 

Nursing home: Z; 
Number of coroner referrals for pressure sores: 1. 

Nursing home: AA[B]; 
Number of coroner referrals for pressure sores: 0. 

Nursing home: Total; 
Number of coroner referrals for pressure sores: 58; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Actual harm or higher: 5; 
Number of deficiencies cited for pressure sores on homes standard 
surveys[A]: Below actual harm: 17.

Source: GAO analysis of coroner referrals and OSCAR data.

[A] Includes last four state surveys for each home as of October 24, 
2003,with the exception of homes Q and Z, which include the last four 
surveys as of July 30, 2004.

[B] The state survey agency is not required to survey these facilities 
under federal law.

[End of table]

[End of section]

Appendix II: Coroner Referrals That the State Survey Agency Reported as 
Not Received, Substantiated, or Not Substantiated:

Nursing home: A; 
Number of referrals: 12; 
Number not received: 5; 
Number substantiated: 7.

Nursing home: B; 
Number of referrals: 7; 
Number not received: 3; 
Number substantiated: 1; 
Number not substantiated: 3.

Nursing home: K; 
Number of referrals: 7; 
Number not received: 5; 
Number not substantiated: 2.

Nursing home: C; 
Number of referrals: 6; 
Number not received: 4; 
Number substantiated: 2.

Nursing home: F; 
Number of referrals: 5; 
Number not received: 3; 
Number not substantiated: 2.

Nursing home: H; 
Number of referrals: 5; 
Number not received: 5.

Nursing home: D; 
Number of referrals: 4; 
Number not received: 2; 
Number substantiated: 1[A]; 
Number not substantiated: 1.

Nursing home: G; 
Number of referrals: 4; 
Number not received: 1; 
Number not substantiated: 3.

Nursing home: M; 
Number of referrals: 4; 
Number not received: 2; 
Number not substantiated: 2.

Nursing home: E; 
Number of referrals: 3; 
Number not received: 1; 
Number substantiated: 2[A].

Nursing home: I; 
Number of referrals: 3; 
Number not received: 1; 
Number substantiated: 2[A].

Nursing home: J; 
Number of referrals: 3; 
Number not received: 2; 
Number not substantiated: 1.

Nursing home: L; 
Number of referrals: 3; 
Number not received: 1; 
Number substantiated: 2.

Nursing home: R; 
Number of referrals: 3; 
Number not received: 3.

Nursing home: O; 
Number of referrals: 2; 
Number not received: 2.

Nursing home: P; 
Number of referrals: 2; 
Number not received: 2.

Nursing home: S; 
Number of referrals: 2; 
Number not received: 2.

Nursing home: T; 
Number of referrals: 2; 
Number not received: 1; 
Number substantiated: 1.

Nursing home: N; 
Number of referrals: 1; 
Number not received: 0; 
Number substantiated: 1.

Nursing home: Q; 
Number of referrals: 1; 
Number not received: 0; 
Number substantiated: 1.

Nursing home: U; 
Number of referrals: 1; 
Number not received: 1.

Nursing home: V; 
Number of referrals: 1; 
Number not received: 1.

Nursing home: W; 
Number of referrals: 1; 
Number not received: 1.

Nursing home: X; 
Number of referrals: 1; 
Number not received: 0; 
Number substantiated: 1.

Nursing home: Y; 
Number of referrals: 1; 
Number not received: 1.

Nursing home: Z; 
Number of referrals: 1; 
Number not received: 1.

Nursing home: AA; 
Number of referrals: 1; 
Number substantiated: 1.

Nursing home: Total; 
Number of referrals: 86; 
Number not received: 50; 
Number substantiated: 22; 
Number not substantiated: 14.

Source: Arkansas state survey agency.

Note: Data on referrals made from July 1999 through December 2003 are 
based on information provided by the Pulaski County coroner.

[A] One referral was substantiated without any deficiencies.

[End of table]

[End of section] 

Appendix III: Comments from the Centers for Medicare & Medicaid 
Services:

A portion of CMS's response was based on tables presented in attachment 
1 to its comments. Because the tables did not accurately reflect the 
coroner cases discussed in our report, CMS submitted an amended 
attachment 1, which we have substituted for the original attachment 1. 
CMS, however, did not make corresponding changes on pages 6 and 7 of 
its letter. We have marked the text on those pages in the letter where 
the information in the amended attachment 1 supercedes data presented 
in the letter.

DEPARTMENT OF HEALTH & HUMAN SERVICES: 
Centers for Medicare & Medicaid Services:

Administrator: 
Washington, DC 20201:

DATE: SEP 15 2004:

TO: Kathryn G. Allen:
Director, Health Care-Medicaid and Private Health Insurance Issues: 
Government Accountability Office:

Signed by: 

FROM: Mark E. McClellan, M.D., Ph.D.: 
Administrator:

SUBJECT: Government Accountability Office (GAO) Proposed Report: 
Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses in 
State & Federal Oversight of Quality of Care (GAO-04-980):

Thank you for the opportunity to comment on the above-referenced, draft 
report.

The issues raised in the report are important ones. For that reason, 
and because of significant gaps in the information available, we sent a 
clinical team to Arkansas for three days.

The Centers for Medicare & Medicaid Services (CMS) fact-finding team 
reviewed a number of the cases referred to the state Survey Agency (SA) 
over the course of the 4.5 years covered by the GAO study. The team 
reviewed evidence associated with the coroner case referrals, including 
photos. The team reviewed complaint investigation files and complaint 
systems related to these referrals in the state SA. The team conducted 
numerous interviews among officials of the Pulaski county coroner's 
office, the state SA, and the Medicaid Fraud Control Unit (MFCU) 
located in the state's Attorney General's office. In the absence of a 
common descriptive label in the law itself, we will simply refer to it 
as the "Coroner Referral Law" for ease of reference.

The Arkansas "Coroner Referral Law," unique in the nation, represents 
an important case study. There are valuable lessons that can be gained 
from the Arkansas experience and from your report. 1n the comments 
below we highlight some of those lessons, affirm in principle the GAO 
recommendation to CMS, and itemize more than a dozen additional action 
steps that CMS is undertaking in order to make the most effective use 
of insights obtained from the Arkansas experience.

The Pulaski county coroner reports that he referred 85 cases over 4.5 
years to both the SA and MFCU, about 2.1 % of the total number of 
nursing home deaths during that period. The SA reports, however, that 
it received fewer cases than reported by the coroner, and then 
investigated 100% of those that it did receive. The MFCU also reported 
that it actually received fewer cases than the number stated by the 
coroner.

Although the number of allegations of abuse or neglect referred by the 
coroners and substantiated by the survey agency represented only about 
0.5% of all nursing home deaths (21 of more than 4000 reported to the 
coroners), the conditions of the affected individuals were extremely 
serious and merit close review.

Lessons for Mandatory Reporting Systems: CMS, and any state that 
contemplates a mandatory reporting and investigation law similar to the 
law in Arkansas, can benefit greatly from examining the experience 
under the Arkansas Coroner Referral Law since 1999.

Only 1 of 75 coroners seems to have had substantial participation in 
the referral and investigation system (about 95% of reported referrals 
came from just one coroner). This experience points to the need for 
enforcement provisions in any such mandatory referral system.

The two agencies receiving referrals from the Pulaski county coroner 
state Medicaid Fraud Control Unit (MFCU) and SA report that they did 
not receive 40-59% of the referrals (respectively) that the Pulaski 
county coroner states he made. This phenomenon points to the importance 
of having crystal clear referral and documentation systems in place 
from the referring agencies (in this case, the coroners'offices).

The fact that referrals from coroners' offices to the state survey 
agency ranged from 2 days to 415 days (after receipt of the notice from 
the nursing home) suggests the need for clear timelines for all 
participating agencies.

The CMS clinical team also found that a considerable amount of the 
documentary evidence conveyed from coroners' offices did not conform to 
key principles of forensic science. Examples include a lack of embedded 
photo dating, lack of embedded subject identification, lack of scale 
metrics and color charting in the photos, lack of adequate records for 
interview sources, lack of interviews with residents' physicians. These 
experiences suggest the need for clear investigatory protocols and a 
method to ensure that the protocols are scrupulously followed by 
coroners' offices.

The fact that the qualifications of the coroners varies so widely, that 
the coroners are rarely physicians (about 80% are reported to be 
funeral home directors) suggests the need for either additional 
training to handle the more sophisticated responsibilities dictated by 
the Arkansas law, or qualification standards.

The point of these observations is not to criticize the Arkansas 
coroners, for they work within a larger system structured by the law 
itself. The point is that an effective referral and investigation 
system depends on the action of many participants whose individual 
contributions must integrate.

Adequacy, timeliness, and quality of the referrals are important 
because they:

* Aid or impede the survey agency's subsequent investigation.

* Affect the SA's judgement about how urgently the investigation ought 
to be done compared to other newly-arriving complaints.

* Affect the freshness of evidence or witness testimony if referrals 
are delayed. Affect CMS' ability to hold survey agencies accountable 
since no agency can fully prove a negative (e.g. "prove that you did 
not receive the number of referrals that the coroner thinks was sent").

CMS Policy on Past Non-Compliance: The CMS policy on "past non-
compliance," incorporated into regulation and operational manuals, is 
intended to avoid penalizing nursing homes for problems for which they 
have taken clear remedial action and that occurred prior to more recent 
surveys of the nursing homes but only recently came to the attention of 
the SA.

We fully agree in principle with the GAO recommendation that the CMS 
policy for past non-compliance merits additional work in light of the 
Arkansas experience. Following our review we will:

* Clarify Expectations for Past Deficiency Findings for Nursing Homes: 
CMS will clarify expectations for the manner in which state survey 
agencies should address past deficiencies that have only recently come 
to light.

* Further Define Terms for Past Non-Compliance: Further define 
important terms, particularly the term "egregious."

* Enhance CMS Information System: Add the capacity to record the fact 
and the nature of past noncompliance in the CMS information system 
("OSCAR").

* Strengthen Criteria for NH Correction of Deficiencies: Strengthen the 
criteria for determining whether past noncompliance has actually been 
corrected by nursing homes (NHs). This action moves beyond the GAO 
recommendation because we believe that the degree of systemic remedy 
actually put in place by the nursing home ought to be the most 
important determinant for present-day enforcement of past noncompliance 
that only more recently came to the attention of the survey agency.

Referrals from the Coroner's Offices. With regard to referrals from the 
Pulaski county coroner, the GAO report states that the SA investigated 
"fewer than half of those the coroner referred..." (p.4). This 
statement is unconfirmed and ought to be removed. The only confirmed 
facts are:

* The full number of referrals that the Pulaski coroner states that he 
made were not confirmed as having been delivered to either the SA or 
the Medicaid Fraud Control Unit of the Arkansas Attorney General's 
Office.

* The SA investigated all referrals that they confirm as having been 
received.

The draft GAO report also criticized both the SA and MFCU for record-
keeping practices, making no mention of the coroners' offices. In 
contrast, we found that the state SA had a competent system for 
managing complaints. A second state agency (the MFCU) similarly 
reported receiving far fewer than the 85 referrals that the coroner's 
office suggested (51 rather than 85, according to the draft GAO 
report). The Pulaski county coroner's office was not able to provide 
CMS with a listing of the 85 referrals it reportedly made to both the 
SA and MFCU.

The CMS on-site review of the SA's system, the inability of the 
coroner's office to provide CMS with either a list of the 85 referrals 
or confirmation that they were delivered, and the fact that two 
different state agencies both report that they did not receive the full 
number of referrals claimed by the coroner, are facts that lead us to 
conclude that the state survey agency received fewer referrals than 85. 
Of these, the SA investigated 100%.

We suggest that those sections of the GAO report that baldly accept the 
coroner's number of 85 referrals (e.g. top of p. 4) be adjusted to 
reflect the fact that evidence is lacking to confirm that 85 referrals 
were actually delivered. And to state on page 19 that "Overall, 32 
coroner referrals were not investigated by either agency" is simply 
inaccurate in light of the fact that receipt of the referrals is not 
confirmed by either of the two agencies (SA or MFCU).

Insofar as CMS jurisdiction applies only to the SA and MFCU, we will 
undertake the following action to augment the national automated 
complaint tracking system that CMS and states implemented in 2004:

* Design Feedback Systems for Agency Referrals: We will design, with 
Arkansas and other states, a model feedback report for coroners, law 
enforcement and other agencies that have a mandatory reporting 
obligation. The feedback report will contain pertinent information on 
all referrals received by the SA from the relevant source. The report 
will provide a structured means by which the referral source may check 
its own records and identify any problems it perceives.

Timeliness of Investigations: The Arkansas "Coroner Referral Law" 
presents special challenges for public policy. We will:

* Study the Priority Criteria for Complaint Triage: Study the Arkansas 
experience in terms of its implications for CMS requirements for the 
speed and triage priorities for responding to complaint referrals made 
on behalf of individuals who are deceased.

* Refine CMS Policy on Responding to Complaints: Refine CMS policy with 
regard to the treatment of complaints.

Among the many questions worth considering are the following:

What priority should be accorded to referrals that involve persons who 
have been deceased for a considerable period of time prior to receipt 
by the SA, compared to complaints involving current residents?

How can patterns of potential abuse or neglect best be identified to 
establish context for any referral, particularly patterns that ought to 
move a referral to top priority regardless of how long a person has 
been deceased prior to receipt by the SA?

In the Arkansas experience, the CMS clinical team found that many 
referrals from the coroner's office were significantly delayed. 
Attachment 1 to this letter contains a listing of the referral times 
and SA investigation times. The Pulaski county coroner stated that the 
coroner's referral process, from the date of the nursing home's call of 
a resident's death to case development and referral by the coroner to 
the SA, takes a maximum of 2 weeks. Yet, both the SSA and the MFCU 
received coroner cases that took significantly longer (see Attachment 
1).

The GAO report apparently omitted 5 of the following 6 cases that were 
reported by nursing homes to the coroner in 2003 but not referred from 
the coroner to the state survey agency until 2004. The CMS team 
reviewed the timeliness of referral to the SA of the 6 Pulaski County 
nursing home resident deaths in 2003 and found the following.

Case #: 8966; 
Date of Coroner Report: 3/10/2003; 
Date of SA Receipt: 4/28/2004; 
Days: 415.

Case #: 8965; 
Date of Coroner Report: 5/17/2003; 
Date of SA Receipt: 4/28/2004; 
Days: 347.

Case #: 8974; 
Date of Coroner Report: 6/10/2003; 
Date of SA Receipt: 4/29/2004; 
Days: 324.

Case #: 8970; 
Date of Coroner Report: 6/15/2003; 
Date of SA Receipt: 4/13/2004; 
Days: 303.

Case #: 8973; 
Date of Coroner Report: 9/4/2003; 
Date of SA Receipt: 4/29/2004; 
Days: 238.

Case #: 8779; 
Date of Coroner Report: 3/1/2004; 
Date of SA Receipt: 3/05/2004; 
Days: 4.

[End of table]

Overall, the CMS team found the following approximate average and 
median intervals of time for all cases (including those above that were 
omitted by GAO).

Referral Interval: Median Time; 
Coroner  Receipt to Referral Time: 29 days; 
State Survey Agency Receipt to Investigation Time: 21 days.

Referral Interval: Average Time; 
Coroner  Receipt to Referral Time: 75 days; 
State Survey Agency Receipt to Investigation Time: 37 days.

Referral Interval: % Completed within 10 Days; 
Coroner  Receipt to Referral Time: 17%; 
State Survey Agency Receipt to Investigation Time: 33%.

Referral Interval: Range; 
Coroner  Receipt to Referral Time: 2 - 415 days; 
State Survey Agency Receipt to Investigation Time: 0 - 164 days.

[End of table]

These data are included here not as criticism of the Arkansas coroner, 
but to establish context for evaluating actions of the state SA. The 
value of a timely investigation by the SA will be reduced by any 
significant interval of time required by referring entities before 
cases are referred to the SA. The CMS clinical team did find that the 
SA should have investigated a number of the cases in a more timely 
manner when evaluated strictly against CMS policy. In reviewing the 
"triage" decisions of the SA, the CMS team concurred with 81% and did 
not concur with 19%. It remains for us to evaluate that policy in light 
of the Arkansas experience, make needed adjustments or clarifications, 
communicate and train state agency staff on those policies, and then 
ensure that the timelines are met. We will do so.

Cases Not Substantiated: The GAO report concluded that "In half of the 
referrals not substantiated by the state survey agency, either the MFCU 
investigation found neglect or we questioned the basis for the `not 
substantiated' finding and our concerns were confirmed by a professor 
of nursing with experience in long-term care." (p.18):

The SA confirmed receiving 35 cases, investigated the 35, and 
substantiated 21 of the cases. Additional cases were investigated that 
GAO put on its list, but the SA's investigations were precipitated by 
complaints other than those reportedly made by the coroner and are not 
included here in our comments.

While it is appropriate to question the 14 cases not substantiated, 
investigations by survey agencies are governed by rules of evidence and 
must be fact-based. This is appropriate, since allegations and 
convictions for abuse or neglect are serious, legal matters in which 
all parties have certain legal rights and responsibilities.

The CMS clinical team reviewed a sample of 8 of the 14 cases that were 
not substantiated by the SA. For 2 of the 8 a final conclusion could 
not be reached without additional records from the nursing home that 
had been available to the SA investigators at the time the state 
officials conducted their investigation. Of the remaining 6 cases the 
CMS team concurred with 4 and disagreed with 2. The degree of 
disagreement (2 of 8) is higher than the typical disparity rate CMS has 
found for Arkansas surveys in general. The difference here could be an 
artifact of the small sample size (8 cases) or special challenges 
experienced by the state SA in investigating referrals of individuals 
who have been deceased for some time.

We have reviewed these findings with the Arkansas SA and concluded that 
additional training is needed. To that end, CMS will:

* Increase Complaint Investigation Training: Develop a curriculum for 
an advanced course in complaint investigations.

* Pilot Advanced Programs for Complaint Investigation Training Work 
with state officials to sponsor such training and include other states 
in the region. 

* Evaluate and Expand Advanced Training for Complaint 
Investigations: Evaluate the training for potential expansion and 
replication in all regions.

Understating the Seriousness of Deficiencies: The GAO report states 
that (a) some of the substantiated complaints did not result in 
citations for deficiency, and (b) some of those that were cited were 
done at lower levels of severity than warranted.

Cases that were substantiated but did not result in a citation of 
deficiency primarily result from the policy governing past 
noncompliance. This policy is provided both in CMS operations manuals 
and in regulation at 42 CFR 488.430(b). As stated earlier, we will 
review this policy and take appropriate action pursuant to our review.

The CMS clinical team agreed that some - but not all-of the other cases 
should have received a higher level of severity rating. We are 
discussing these findings with the state SA and have agreed with them 
to provide additional training and guidance for the future.

The CMS monitoring and other available evidence indicates that Arkansas 
has not had a pattern of citing deficiencies at levels lower than 
expected during the 4.5 year period covered by the GAO study (they have 
generally been higher than national averages). We therefore take work 
of our clinical team and of GAO to mean that additional training and 
additional clarifications relative to scope and severity are warranted 
even more for other states than for Arkansas. We will do the following:

* Increase Training in Classifying Deficiencies: We will arrange for 
state-specific or multi-state training to address issues related to the 
proper citation of deficiencies in terms of their scope and severity.

* Issue Additional CMS Guidance on Deficiency Classification: We will 
issue additional guidance to states of the proper classification of 
identified deficiencies and the relationship of those citations to 
enforcement actions. 

* Increase Regional Office Follow-Up. 

* Increase CMS Analysis of Patterns in State Deficiency Citations:

Following Through on Enforcement: Proper classification and citation of 
a deficiency is necessary, but not wholly sufficient. The ultimate goal 
must be (a) remedy of the problem, and (b) system changes that might be 
needed to prevent identical or similar problems in the future. To this 
end, CMS will: 

* Automate Enforcement Tracking: On October 1, 2004 CMS will implement, 
nationwide, a new electronic tracking and management system ("Aspen 
Enforcement Manager," or "AEM") for all types of actions that state 
survey agencies might take, in response to identified nursing home 
deficiencies, to promote the prompt and effective remedy of the 
problems.

Predictability of Nursing Home Surveys: The GAO report summarizes 
previous GAO work related to the extent to which nursing homes might be 
able to predict the states' unannounced surveys. The frequency of the 
surveys is statutorily required every 15 months, with an average of 12 
months. CMS requires both staggering of surveys (e.g. nursing homes 
should not have surveys around the same time of year each year) and 
off-hour surveys (e.g. weekends, evenings). The Arkansas SA has a track 
record of often exceeding the percentage of off-hour surveys required 
by CMS (10 percent).

Substantial increases in the off-hour or staggered schedule 
requirements would have a fiscal impact on state budgets, or require 
that other important functions not be done. The GAO report would be 
more useful if it came to terms with these facts instead of 
resurrecting old GAO reports (to which CMS has responded) without 
acknowledging CMS and state improvements made since the original GAO 
reports, or the implications of even further advances. Since the issue 
of survey predictability is not especially germane to the analysis of 
the Arkansas Coroner Referral Law, we recommend that this portion of 
the GAO report be removed, or that the above issues be addressed.

Use of Photographs: The photos conveyed from the coroner's office are 
graphic, serious, and fully require careful investigation. Photographs 
in any investigation can be (a) tremendously useful when accomplished 
with care, or (b) not useful, and sometimes misleading, when not 
accomplished according to generally-accepted rules of forensic science. 
The use of photographs in the survey process therefore poses important 
public policy challenges. To the extent that advances in technology, 
and laws such as the Arkansas Coroner Referral Law, become more common 
then we are well advised to study this area further.

The CMS clinical team reviewed the photos and found that they were very 
helpful in a number of the investigations. The CMS team also reviewed 
the majority of cases that the SA did not substantiate. In a number of 
cases the team found that the surveyors' investigation did not result 
in a substantiated finding of abuse or neglect because:

* The resident arrived to the NH with the pressure ulcers from other 
facilities, (the specific NH in which the resident resided could not 
have avoided the outcome). 

* Interventions by the primary care physician with resident families 
sought to address the challenges in meeting a resident's nutritional/
hydration needs without invasive lines/tubes (end of life choice 
decisions by individuals under hospice care, and a patient rights by 
regulation),

* Some of the photos capture the presentation of peripheral vascular 
diseases, and skin conditions likely weakened by the use of certain 
medications (e.g. steroids) commonly used to treat arthritic, 
pulmonary, or cardiovascular diseases. In such cases, the meaning of 
the photographic information is not dispositive and can only be 
discerned through other investigation, including interviews with 
physicians. 

* In most cases the coroner's office did not interview 
physicians. In one case of graphic photos, interviews by surveyors 
determined that the physician had determined that the only option was 
bilateral amputation, a course that neither the family nor the hospice 
patient desired.

Any one of the above scenarios can be further complicated by an 
individual resident's aged, demented, and/or debilitated body ravaged 
by several co-morbidities.

The coroner's photos of significant pressure ulcers, or disease 
processes, are particularly useful for the coroner's purposes - 
determining whether there is sufficient evidence to warrant further 
investigation by the SA. The photos by themselves do not, however, 
represent sufficient evidence to render a conclusion of poor care, 
neglect, avoidable outcomes or that the NH caused the death. We 
therefore recommend that the GAO report acknowledge these facts (e.g. 
by inserting the phrase "potential neglect" on p. 4 when stating that 
photos of "...pressure sores were the predominant indication of 
neglect..."

The investigation of complaints by the SA to substantiate (or not), and 
the work of the MFCU to build a case for civil or criminal prosecution, 
requires a variety of tools and information sources (e.g., interviews, 
medical record documentation) to best understand the circumstances of 
care or service. If, as the CMS team learned, those photos lack common 
requisites of forensic science then they are much less useful than 
could be the case. Examples of key problems include a lack of embedded 
photo dating, lack of embedded subject identification, lack of scale 
metrics and color charting in the photos lack of adequate records for 
interview sources, lack of interviews with residents' physicians. Some 
of the coroner's pictures were so close to the body part that we could 
not identify with certainty the body part captured. It is also unclear 
from the GAO draft report whether the professor of nursing had the 
benefit of the actual NH medical record, or the benefit of interviews 
conducted by the SA investigators who followed up on the referrals.

In light of these issues CMS will:

* Issue Guidance on Use of Photographic Evidence: CMS will undertake a 
study of the issues involved in the use of photographs and issue 
additional guidance for use by state survey agencies. We expect the 
guidance to the state SAs will also be useful to their partnering 
agencies (e.g. coroners).

Pressure Ulcers: The GAO draft observes that, in about 2/3 of the 
coroner's referrals, pressure sores were the predominant indication of 
potential neglect. This points to the increasing importance of 
management, training and practice that can promote the effective 
prevention and treatment of pressure ulcers. CMS has already identified 
this area as an important focus for additional investment, and is 
undertaking the following actions:

* Reducing Pressure Ulcers through Clear Goals: CMS has made the 
reduction in pressure ulcers in nursing homes as an important goal 
under the Government Performance and Results Act (GPRA):

* Increasing Quality Improvement Collaborations: CMS, state Survey 
Agencies, and the Quality Improvement Organizations (QIOs) have 
embarked on collaborative efforts to increase and coordinate their 
respective efforts to work with nursing homes in the prevention and 
reduction of pressure ulcers.

We appreciate the investment of time and energy that GAO devoted to 
reviewing the Arkansas experience. We hope in the future that GAO will 
be able to share its case information with us so that we may continue 
to investigate the many issues that this valuable case study raises. In 
the meantime, we are hope our comments are helpful in refining your 
report.

Amended Attachment 1:

Federal Review of AR OLTC Triage of 36 Pulaski Count Coroner's 
Referrals: 

[See PDF for image]

[End of table]

NOTE:

Amending table #1 may slightly alter some final percentages in the text 
response. Any revisions do not change any of the CMS conclusions. CMS 
agrees with 24 of 35 (68.57%) priorities assigned by OLTC, and 
disagrees with 11 of 35 (31.43%).

Column C - Complaint receipt dates obtained from the OLTC tracking 
system. Line 34 referral receipt date obtained from a note written by 
an OLTC employee. Line 36 referral receipt date handwritten on the 
coroner's report.

CMS triaged all residents in participating facilities, including line 
13 referral (complaint #4430) who was not in a certified bed.

CMS did not triage the referral on line 36. The resident was living in 
a non-participating, licensed-only State Veterans Facility. Any care or 
service failure could not impact Medicare beneficiaries or Medicaid 
recipients. CMS has no jurisdiction over this facility nor State 
licensure actions regarding this facility.

Federal Review of Five Pulaski Count Coroner's Referrals Received in 
2004: 

[See PDF for image]

[End of table] 

[End of section]

Appendix IV: Comments from the Arkansas Department of Human Services:

Arkansas Department of Human Services: 
Division of Medical Services:
Office of Long Term Care: 
Mail Slot 5409: 
P.O. Box 8059:
Little Rock, Arkansas 72203-8059:

Telephone (501) 682-8487:
TDD (501) 682-6789: 
Fax (501) 682-8551: 
Web Site: http://www.medicaid.state.ar.us/general/units/oltc:

September 13, 2004:

Walter Ochinko, Assistant Director:
Medicaid and Private Health Insurance Issues: 
Health Care, Room 5A14:
United States General Accounting Office: 
441 G. Street N.W.
Washington, DC 20548:

RE: Arkansas Office of Long Term Care Comments to Draft GAO Report - 
NURSING HOME DEATHS: Arkansas Coroner Referrals Confirm Weaknesses in 
State and Federal Oversight of Quality of Care (GAO-04-980):

Dear Mr. Ochinko:

The Arkansas Department of Human Services believes that the Arkansas 
Coroner's Law reviewed in the report has the potential to help enhance 
quality of care to residents through appropriate oversight of nursing 
facilities. As the Arkansas Department of Human Services assisted the 
Pulaski County coroner in bringing the law into existence, the 
Department has a vested interest in its efficacy. We certainly 
recognize that the Pulaski County coroner has utilized the law to 
uncover deaths that required further examination on the part of the 
Office of Long Term Care.

We therefore appreciate the opportunity to review the above referenced 
draft report and to offer comments. Such a cooperative review will no 
doubt ensure the accuracy of the report and help focus all parties on 
the issues. In that light, we tender the following observations and 
comments.

Validity of Referral Numbers - Throughout the report the number of 
referrals from the Pulaski County Coroner is stated to be eighty-five 
(85). Further, this number is stated to be the number of referrals to 
both the State Survey Agency (SSA - the Office of Long Term Care) and 
to the State Medicaid Fraud Control Unit (MFCU) located in the Arkansas 
Attorney General's Office.

The phrasing of the referral numbers is troublesome, and is discussed 
later in this letter. We offer the following examples, with page 
notations and suggested language that would accurately reflect the 
facts. The suggested language is italicized:

Page: Highlight Page: 
Current Language: "From July 1999, when the Arkansas law took effect, 
through December 2003, the Pulaski County coroner referred 85 cases of 
suspected resident neglect to the state survey agency."

Page: Highlight Page: 
Suggested Language: "From July 1999, when the Arkansas law took effect, 
though December 2003, the Pulaski County coroner claims to have 
referred 85 cases of suspected resident neglect to the state survey 
agency. The state survey agency claims that during that same time only 
35 cases were referred by the Pulaski County coroner."

Page: Highlight Page: 
Highlight Page Current Language: "Arkansas state survey agency officials 
told GAO that they received and investigated fewer than half of the 
Pulaski County coroner's referrals."

Page: Highlight Page: 
Suggested Language: "Arkansas state survey agency officials told GAO 
that they received fewer than half of the referrals claimed to have 
been made by the Pulaski County coroner. The State survey agency 
investigated all of the cases that the state survey agency claimed were 
received from the Pulaski County coroner."

Page: 18: 
Current Language: "According to Arkansas state survey agency officials, 
the agency did not receive or investigate more than half of the coroner 
referrals of suspected resident neglect."

Page: 18: 
Suggested Language: "According to Arkansas state survey agency 
officials, the agency did not receive more than half the number of 
referrals that the Pulaski County coroner claimed to have made to the 
state survey agency. The state survey agency did investigate all 
referrals that the state survey agency claimed were referred by the 
Pulaski County coroner."

Page: 19: 
Current Language: "Although the Pulaski County coroner told us that 
he had referred 85 cases of suspected resident neglect from July 1999 
through December 2003, Arkansas state survey agency officials said that 
they had received and investigated fewer than half."

Page: 19: 
Suggested Language: "Although the Pulaski County coroner told us that 
he had referred 85 cases of suspected resident neglect from July 1999 
through December 2003, Arkansas state survey agency officials told us 
that they had received only 35 referrals from the Pulaski County 
coroner IN that time period, and investigated all of the 35 referred."

The above statements, it should be noted, do not reflect all of the 
similar statements in the report.

Our concern is two fold:

1. These statements can be interpreted to mean that the State Survey 
Agency (SSA) received all of the claimed 85 referrals, but investigated 
less than half. This is incorrect. The SSA investigated all referrals 
received from the Pulaski County Coroner.

2. Related to number 1, above, is the issue of the supposed weight given 
to the number of referrals that the Pulaski County coroner claims to 
have made. First, the language of the above examples, and throughout 
the report, is such that it appears that the GAO is validating the 
statement of the Pulaski County coroner-and thereby claiming that the 
numbers of referrals received by the SSA and the MFCU are false.

Second, there is no evidence presented in the report to validate such a 
position. Quite simply, what makes the coroner's claims more credible 
than either the SSA or MFCU? Why is the Pulaski County coroner's number 
of referrals accepted at face value?

Two separate agencies of the State of Arkansas claim that neither 
received the eighty-five (85) referrals claimed to have been made by 
the Pulaski County coroner. Absent some independent verification of the 
number, the report should be amended to reflect that the GAO was unable 
to obtain independent verification of the number of referrals claimed 
by the Pulaski County coroner.

It is possible that the GAO considers the following quote from page 
twenty (20) of the report to be independent evidence to support the 
claimed number of referrals by the coroner:

We found inconsistencies in agency and MFCU recordkeeping. For example, 
the state survey agency told us that it had received four referrals on 
the coroner's list but could not provide a copy of any complaint intake 
forms or the results of its investigations for three of the four 
referrals. While a MFCU official told us that three other referrals 
were forwarded to it by the state survey agency, not the coroner, the 
state survey agency had no record of these referrals.

If so, and in the interest of accuracy and fairness, the recordkeeping 
of the coroner should be examined and any and all flaws documented. 
Absent such contrast, the quoted text appears to have been inserted for 
no other reason than to support the GAO's reliance - without 
independent evidence - of the claimed number of referrals of the 
coroner. This is particularly the case as the GAO investigator stated 
to the state survey agency director and staff that the coroner's 
recordkeeping made retrieval difficult - the impression being that it 
was both deficient and exceedingly worse than that of the state survey 
agency.

In addition, the report should be amended so that any possible 
misinterpretation that the SSA did not investigate all referrals it 
received is removed. What can be established is that the Pulaski County 
coroner claims to have referred eighty-five cases. The SSA claims to 
have received thirty-five (35). The MFCU claims to have received fifty 
(50). There is no evidence that the SSA failed to investigate any case 
it claims to have received - and no independent evidence that it 
received more than the thirty-five (35) cases it claims.

Finally, the GAO draft report fails to accurately reflect the actual 
circumstances of the referrals. The GAO provided the Office of Long 
Term Care with a list of eighty-five (85) names of cases that the 
Pulaski County coroner claimed to have referred to the state survey 
agency. As our records reflected that only thirty-five (35) of the 
names on the list were referrals from the Pulaski County coroner, the 
Office of Long Term Care at the request of the GAO performed a record 
review to see whether any of the remaining fifty (50) names appeared. 
Of the remaining fifty (50) names, twenty-two appeared in the records 
of the Office of Long Term Care and the Office of Long Term Care had 
documentation that all of the cases were investigated.

While the Office of Long Term Care did not receive the eighty-five 
referrals claimed by the Pulaski County coroner, the Office of Long 
Term Care investigated fifty-seven (57) of the 85 names that appeared 
on the Pulaski County coroner's list. Thirty-five (35) of those cases 
originated from a referral by the Pulaski County coroner. The remaining 
twenty-two (22) originated from referrals by another source. However, 
of the twenty-two (22), nine (9) of the referrals were received prior 
to the residents' deaths and investigations were completed prior to the 
deaths. For the language of the GAO draft report to imply that the 
Office of Long Term Care investigated less than half the referrals is 
both inaccurate and misleading.

It is noteworthy that in 2004 the Office of Long Term Care received six 
(6) referrals from county coroners; five of these referrals were made 
by the Pulaski County coroner. Of those five referrals, one (1) was 
referred to the Office of Long Term Care by the Pulaski County coroner 
thirteen (13) months after the resident's death; the remaining four 
were referred to the Office of Long Term Care by the Pulaski County 
coroner from nine to eleven months after the deaths. Several months 
before the GAO draft report was completed the Office of Long Term Care 
informed the GAO that the untimely referrals had been received from the 
Pulaski County coroner. The GAO investigators advised the Office of 
Long Term Care director and staff that they were aware that the coroner 
had not referred these five deaths occurring in 2003. The GAO made the 
determination not to include these cases in their study or to include 
any explanation regarding the cases untimely referrals. The Office of 
Long Term Care never received an explanation regarding any reason for 
the untimely referrals.

It should be noted that the Office of Long Term Care receives thousands 
of complaints and Incident Reports (reports of specific long-term care 
facility employee maltreatment of residents) each year. The Office 
investigates each. To believe that the Office of Long Term Care simply 
disregarded some of the alleged referrals from one source - absent some 
independent verification - is not only illogical, it cast doubts on the 
ultimate conclusions stated in the report. Certainly, the fifty (50) 
disputed referrals did not constitute a significant increase in 
workload as a percentage of overall complaints; in addition, thirteen 
(13) of those disputed death referrals were investigated by the Office 
of Long Term Care through referral from another source. We would, 
therefore, appreciate the report being amended to correct this.

Compliance with CMS Processes - The Office of Long Term Care will not 
address issues of whether CMS processes or regulations require change 
or modification, and will let CMS address those issues. This Office 
would like to stress, however, that for the time period of this study 
the Office of Long Term Care has been among the national leaders in 
citations for Immediate Jeopardy, Substandard Quality of Care, and 
Actual Harm. We certainly do not claim perfection; we don't honestly 
believe that can be claimed by any SSA. However, we strive at all times 
to comply with CMS guidelines and requirements. When we find that we 
are not meeting those guidelines and requirements, we take steps to do 
so. A review of the SAEP/SPE performed by CMS annually on SSAs will 
reveal that the Office of Long Term Care has either fully met CMS' 
expectations concerning the processes discussed in the report, or took 
the necessary steps to meet them.

While the Office of Long Term Care cannot claim perfection, it is our 
opinion that the draft report - by addressing issues outside the 
apparent scope of the study, such as survey predictability - unfairly 
paints a picture of the state survey agency and its efforts. It should 
be noted that the State of Arkansas, in addition to its adherence to 
CMS requirements and guidelines, has taken independent affirmative 
action to both improve the survey process and to improve quality of 
care of residents. These include:

l. Increase in survey staff positions. In 2001, The Arkansas Department 
of Human Services made a commitment to increase survey staff numbers 
for the Office of Long Term Care, and carried through with that 
commitment. This influx of additional surveyor positions meant that the 
Office of Long Term Care oversight and compliance determinations of 
facilities would not only be maintained, but would be strengthened.

2. Increases in the reimbursement to nursing homes. The State of 
Arkansas has approximately doubled the amount of money paid for the 
care of residents in nursing homes. A significant percentage of that 
money - in excess of half - has gone to payment of direct care staff. 
Facilities are now able to pay direct care staff more, and to provide 
benefits that they were unable to provide in the past. This effort was 
made to assist facilities in their retention of staff and to fight the 
problems that come from both a lack of staff and high turnover.

3. Related to the increased reimbursement, the State of Arkansas 
mandated minimum staffing requirements through legislation passed in 
the 2001 legislative session. That law - found in Ark. Code Ann.  20-
10-1401 et seq. - has resulted in increases in direct care staffing no 
less than three times. Arkansas nursing home residents are now being 
served by more direct care staff, and facilities can now provide pay 
and benefits that will help retain that staff.

4. The Office of Long Term Care, through the Arkansas Department of 
Human Services, is finalizing a contract with the Arkansas Foundation 
for Medical Care (AFMC) for an innovative program to provide evaluation 
and training to both facilities and the Office of Long Term Care. The 
AFMC is the Quality Improvement Organization (QIO) for the State of 
Arkansas. Under this contract, the AFMC will be provided data - 
including survey documentation - to evaluate and locate areas in which 
it can offer assistance to facilities. Likewise, the AFMC will evaluate 
the Office of Long Term Care, and provide training to the Office in an 
effort to further improve the Office's ability to perform its duties in 
surveying facilities.

5. It is unclear how survey predictability is related to a state law 
that can result in referrals for complaints. Complaint investigations 
are conducted based upon strict guidelines that in turn are based on 
the alleged seriousness and immediacy of harm - these timelines are 
unrelated to surveys. Nevertheless, it should be noted that the state 
survey agency has made successful efforts to reduce predictability of 
surveys. However, the strict guidelines for investigation of complaints 
means that there is very little that can be done to reduce 
predictability of complaint investigations. If the allegation is 
serious, the Office of Long Term Care must investigate within a few 
days - if a facility is aware that the complaint has been made, it 
follows that it will be able to estimate when the state survey agency 
will appear with a high degree of accuracy. Again, however, we do not 
understand how survey predictability concerns arise from a state law 
that results in complaint investigations.

Thank you for this opportunity to provide our comments and suggestions 
for this study. If you should have any questions about the statements 
contained in this letter, please contact me.

Sincerely,

Signed by: 

Carol Shockley, Director: 

[End of section]

Related GAO Products:

Nursing Home Fire Safety: Recent Fires Highlight Weaknesses in Federal 
Standards and Oversight. GAO-04-660. Washington, D.C.: July 16, 2004.

Nursing Home Quality: Prevalence of Serious Problems, While Declining, 
Reinforces Importance of Enhanced Oversight. GAO-03-561. Washington, 
D.C.: July 15, 2003.

Nursing Homes: Public Reporting of Quality Indicators Has Merit, but 
National Implementation Is Premature. GAO-03-187. Washington, D.C.: 
October 31, 2002.

Nursing Homes: Quality of Care More Related to Staffing than Spending. 
GAO-02-431R. Washington, D.C.: June 13, 2002.

Nursing Homes: More Can Be Done to Protect Residents from Abuse. GAO-
02-312. Washington, D.C.: March 1, 2002.

Nursing Homes: Federal Efforts to Monitor Resident Assessment Data 
Should Complement State Activities. GAO-02-279. Washington, D.C.: 
February 15, 2002.

Nursing Homes: Success of Quality Initiatives Requires Sustained 
Federal and State Commitment. GAO/T-HEHS-00-209. Washington, D.C.: 
September 28, 2000.

Nursing Homes: Sustained Efforts Are Essential to Realize Potential of 
the Quality Initiatives. GAO/HEHS-00-197. Washington, D.C.: September 
28, 2000.

Nursing Home Care: Enhanced HCFA Oversight of State Programs Would 
Better Ensure Quality. GAO/HEHS-00-6. Washington, D.C.: November 4, 
1999.

Nursing Homes: HCFA Should Strengthen Its Oversight of State Agencies 
to Better Ensure Quality of Care. GAO/T-HEHS-00-27. Washington, D.C.: 
November 4, 1999.

Nursing Home Oversight: Industry Examples Do Not Demonstrate That 
Regulatory Actions Were Unreasonable. GAO/HEHS-99-154R. Washington, 
D.C.: August 13, 1999.

Nursing Homes: HCFA Initiatives to Improve Care Are Under Way but Will 
Require Continued Commitment. GAO/T-HEHS-99-155. Washington, D.C.: 
June 30, 1999.

Nursing Homes: Proposal to Enhance Oversight of Poorly Performing Homes 
Has Merit. GAO/HEHS-99-157. Washington, D.C.: June 30, 1999.

Nursing Homes: Complaint Investigation Processes in Maryland. GAO/T-
HEHS-99-146. Washington, D.C.: June 15, 1999.

Nursing Homes: Complaint Investigation Processes Often Inadequate to 
Protect Residents. GAO/HEHS-99-80. Washington, D.C.: March 22, 1999.

Nursing Homes: Stronger Complaint and Enforcement Practices Needed to 
Better Ensure Adequate Care. GAO/T-HEHS-99-89. Washington, D.C.: March 
22, 1999.

Nursing Homes: Additional Steps Needed to Strengthen Enforcement of 
Federal Quality Standards. GAO/HEHS-99-46. Washington, D.C.: March 18, 
1999.

California Nursing Homes: Federal and State Oversight Inadequate to 
Protect Residents in Homes With Serious Care Problems. GAO/T-HEHS-98-
219. Washington, D.C.: July 28, 1998.

California Nursing Homes: Care Problems Persist Despite Federal and 
State Oversight. GAO/HEHS-98-202. Washington, D.C.: July 27, 1998.

FOOTNOTES

[1] Ark. Code Ann.  5-28-204 (Michie 2003). 

[2] In the absence of autopsy information that establishes the cause of 
death, we were unable to determine the extent to which unacceptable 
care may have contributed directly to individual deaths. See GAO, 
California Nursing Homes: Care Problems Persist Despite Federal and 
State Oversight, GAO/HEHS-98-202 (Washington, D.C.: July 27, 1998).

[3] See GAO, Nursing Homes: Sustained Efforts Are Essential to Realize 
Potential of the Quality Initiatives, GAO/HEHS-00-197 (Washington, 
D.C.: Sept. 28, 2000) and Nursing Home Quality: Prevalence of Serious 
Problems, While Declining, Reinforces Importance of Enhanced Oversight, 
GAO-03-561 (Washington, D.C.: July 15, 2003).

[4] Starting in August 2003, Missouri nursing homes were required to 
report resident deaths to county officials, such as coroners. The 
Missouri law, however, does not require coroner investigations of the 
deaths. See Mo. Ann. Stat.  198-071 (West 2004). 

[5] A list of related GAO products is at the end of this report. 

[6] Arkansas has two state survey agencies--the Office of Long Term 
Care in the Department of Human Services and the Division of Health 
Facility Services in the Department of Health. The former is 
responsible for surveying nursing homes and the latter surveys other 
providers who participate in Medicare and Medicaid, such as hospitals 
and home health agencies. In this report, we use the term state survey 
agency to refer to the Office of Long Term Care.

[7] CMS generally interprets these requirements to permit a statewide 
average interval of 12.9 months and a maximum interval of 15.9 months 
for each home.

[8] Death investigations often vary considerably by jurisdiction 
(whether state, county, district, or city). Some states use a medical 
examiner (21 states and the District of Columbia), some use a coroner 
(11 states), and some use a mixed system of medical examiners and 
coroners (18 states). Medical examiners and coroners are responsible 
for investigating sudden or violent deaths and for providing accurate, 
legally defensible determinations of the causes of these deaths. 
Generally, medical examiners are licensed physicians and are appointed, 
while coroners need not be physicians and are elected.

[9] When enacted, the Arkansas law required a referral if there was 
reasonable cause to suspect that the resident died of abuse, sexual 
abuse, or neglect. In 2003, the law was amended to substitute 
maltreatment for these terms. Coroner referrals did not actually 
characterize the specific nature of each finding in relation to one of 
the statutory categories for referral. In the absence of such 
characterization, we characterize each referral under the law as based 
on a finding of neglect.

[10] Most states have laws that require suspicious or unusual deaths 
(or those for which the cause is unknown or unnatural) to be reported 
to a state or local authority, and some specifically require the 
reporting of deaths resulting from abuse or neglect. Prior to 1999, 
Arkansas law required the reporting of cases in which there was 
reasonable cause to suspect that any adult had died of abuse, sexual 
abuse, or negligence.

[11] MFCUs were authorized by the Medicare-Medicaid Anti-Fraud and 
Abuse Amendments, Pub. L. No. 95-142 17, 91 Stat. 1175, 1201-1202 
(1977). Currently, 47 states and the District of Columbia participate 
in the Medicaid fraud control grant program. 

[12] According to the state survey agency, only four referrals were 
received from coroners outside of Pulaski County, and we excluded these 
from our analysis. We did not contact Arkansas's 74 other coroners to 
determine whether any additional referrals were sent. Although 
assessing the effectiveness of the state's law was beyond the scope of 
our review, MFCU officials told us that few other coroners investigate 
nursing home resident deaths and that nursing homes may not be 
reporting all deaths to their local coroners as the state law requires. 
For example, MFCU officials told us that there were eight deaths in one 
home in the course of 1 month that were not reported to the coroner or 
investigated and at least one decedent was sent to a funeral home owned 
by the coroner. The Arkansas statute does not provide sanctions for 
failure to report nursing home deaths to coroners or for coroners' 
failure to investigate reported deaths. They also told us that all but 
two of the state's 75 county coroners are elected; therefore, most 
state coroners are not accountable to other county or state officials. 
The Pulaski County coroner is appointed by the county's chief executive 
officer. 

[13] Two of the coroner's three staff members are licensed paramedics.

[14] Although the referrals sometimes identified multiple care 
problems, we attempted to identify the primary cause for each of the 
coroner's 86 referrals. Overall, 88 percent of decedents with pressure 
sores had stage III/IV pressure sores or necrotic or gangrenous tissue 
(see table 3). Fifty-seven percent of decedents with pressure sores had 
three or more pressure sores. 

[15] The risk factors for pressure sores include confinement to a bed 
or chair, inability to move, loss of bowel or bladder control, poor 
nutrition, and lowered mental awareness. Actions to prevent pressure 
sores include repositioning the patient every 1 to 2 hours; using a 
special pressure-relieving mattress or chair pad; placing pillows or 
wedges between the knees and ankles and under legs to keep the 
patient's heels off of the bed; cleaning skin as soon as possible after 
incontinence; and providing appropriate nutritional support. 

[16] All but 5 of the 27 homes referred by the coroner were located in 
Pulaski County. The residents from these 5 homes died in a Pulaski 
County medical facility and, as a result, were referred by the Pulaski 
County coroner. Three of the 27 homes with coroner referrals have since 
closed.

[17] The body of a resident who died in this same home prior to 
enactment of the 1999 Arkansas law was exhumed and the decedent was 
found to have suffocated while tied to his nursing home bed. 

[18] One of the 19 homes is a federal facility operated by the 
Department of Veterans Affairs and is not subject to surveys by the 
state survey agency. 

[19] We excluded from our analysis cases for which a coroner's referral 
was not received but the state survey agency indicated it had conducted 
an investigation, primarily complaints filed by family members or 
others. We excluded such cases because the focus of our analysis was 
the state's disposition of coroner referrals, not a broader review of 
the state's disposition of all complaints, regardless of source. Nine 
of the survey agency's non-coroner complaint investigations were 
conducted prior to the residents' deaths and may not have raised 
concerns similar to those identified in the coroner's referrals. 
Elsewhere in the report, we acknowledge seven of the survey agency's 
non-coroner complaint investigations that involved allegations similar 
to the coroner's. 

[20] To help both the state survey agency and the MFCU identify all 
coroner referrals made since July 1999, we provided a list that we 
developed using the Pulaski County coroner's files. Both agencies used 
this list to identify coroner referrals they received but were unable 
to locate all 86 referrals. 

[21] Five of the 27 homes, where the coroner identified 10 cases of 
potential neglect, had no state survey agency or MFCU investigations.

[22] In March 2004, the coroner began requesting signed receipts. 

[23] In addition, the state survey agency substantiated two non-coroner 
complaints for decedents the coroner said he referred but which agency 
officials indicated were not received. In one case, a family member 
filed a complaint 6 days after a resident's death with allegations 
similar to those in the coroner's referral. The resident broke both 
hips when she fell out of bed. The state survey agency investigated the 
family member's complaint twice. According to state survey agency 
officials, a review of the initial investigation, which cited misuse of 
restraints at the less than actual harm level, indicated the need for 
another investigation. The second investigation cited two actual harm 
deficiencies for shortcomings in resident assessment and failure to 
prevent accidents. In the other case, state surveyors were at the 
nursing home when a resident, attempting to burn off his restraints, 
set himself on fire. Surveyors cited the home with several deficiencies 
at the immediate jeopardy level. 

[24] Although the state survey agency recommended termination of this 
home in October 2000, CMS's Dallas regional office imposed a directed 
plan of correction that included requirements that the home reduce the 
number of Medicare and Medicaid residents by 50 percent within about 2 
weeks and hire independent third-party consultants in the areas of 
nursing services, pharmacy services, medical records and documentation, 
behavioral intervention, and quality assurance, as well as correct all 
conditions of immediate jeopardy. This approach gave the home 
significant leeway in returning to compliance. For example, the state 
survey agency was given the discretion to keep the home open if it 
showed good faith in removing immediate jeopardy. However, the home did 
not meet the terms of the directed plan of correction and thus was 
terminated in early November 2000. The home reopened under new 
ownership, new management, and a new name in July 2001 but did not 
begin receiving Medicaid payments until June 2002.

[25] The decedents' deaths occurred from March 25, 2000, through April 
13, 2000, and the state survey agency received the coroner's referral 
for all four cases on April 25, 2000.

[26] A similar October 1999 complaint by family members was not 
substantiated. Overall, at least 25 percent of the decedents referred 
by the coroner were also the subject of complaints by family members or 
others.

[27] The state survey agency recommended a $10,000 civil monetary 
penalty. CMS reduced the penalty to $2,000, which the facility paid. 

[28] Although federal guidance sets a high threshold of immediate 
jeopardy for citing past noncompliance, the Arkansas state survey 
agency's complaint investigation guidance indicates that past 
noncompliance may be cited whenever the violation resulted in actual 
harm or immediate jeopardy to a resident.

[29] Nationwide, past noncompliance appears to be rarely used, cited in 
less than 1 percent of standard surveys and less than 1 percent of 
complaint investigations. During the last 4 standard surveys for each 
nursing home nationwide, 204 instances of past noncompliance were cited 
on about 63,000 surveys. Overall, about half of the state survey 
agencies cited past noncompliance. The Arkansas state survey agency 
accounted for about 10 percent of such citations. 

[30] The state survey agency investigated but did not substantiate non-
coroner complaints for five decedents the coroner said he referred and 
agency officials indicated they did not receive. The allegations in the 
non-coroner complaints were similar to those contained in the Pulaski 
County coroner's referrals. In one case, the survey agency referred the 
complaint to the MFCU that requested an exhumation of the decedent's 
body for an autopsy. Before the autopsy results were obtained, the 
survey agency determined that the complaint was unsubstantiated. In a 
second case, the survey agency received the complaint alleging a fall 3 
weeks before the resident's death; the complaint was investigated 6 
months after the resident's death but without the benefit of the 
coroner's photos of the decedent's bruises. For a third case, nursing 
home staff filed two complaints before the resident's death alleging 
poor pressure sore care. When he died, the resident had 12 pressure 
sores, but again, surveyors lacked the coroner's photos of the 
decedent. 

[31] Although neither the MFCU nor the state survey agency 
substantiated the alleged neglect for 8 of the same 14 referrals, we 
believe that several factors raise questions about the thoroughness of 
some MFCU investigations. In 2000, MFCU investigators were authorized 
to declare cases inactive and some cases were closed on the basis that 
medical records documented the receipt of necessary care, without a 
thorough review of the records by a registered nurse. (The MFCU now 
employs two nurse investigators who typically perform a review of 
medical records intended, in part, to identify inconsistencies and gaps 
in documentation of resident care.) In addition, the MFCU did not 
pursue every case it received, citing the difficulty of proving that 
neglect by a facility was the direct, natural, or probable cause of a 
resident's condition and because the agency's resources were limited.

[32] To support its "not substantiated" finding, the state survey 
agency cited several factors, including documentation that the facility 
was following the plan of care, the fact that the pressure sores were 
reported to have developed in the hospital, or that the family wanted 
to be conservative in the care provided. Because of concern about the 
basis for some "not substantiated" findings, we asked our expert to 
review seven cases in which the seriousness of the decedents' 
conditions as documented in the coroner's photos raised a question 
about the validity of the conclusions reached during the state survey 
agency's investigations. This assessment was based on a review of the 
various investigative reports, medical records we obtained, and photos 
of decedents taken by the coroner. All of the decedents had serious 
pressure sores, and four referrals involved two nursing homes. In two 
of the seven cases reviewed, our expert found that there was not enough 
documentation to draw a definitive conclusion.

[33] Pressure sores can be painful. For example, a physician more than 
quadrupled the amount of pain medication for one decedent over about a 
two and one-half month period because of pressure sores at the base of 
her spine. We found that pain management was a problem in other coroner 
referrals. For example, the medical records associated with one coroner 
referral noted that the resident had complained to her daughter of foot 
pain. When the daughter removed her mother's shoe and sock she found 
bloody toes from pressure sores that the home had failed to document. 
Two other decedents did not receive pain medication as prescribed.

[34] The state's February 2000 survey was conducted to allow this 
nursing home to again serve Medicaid beneficiaries. The home had been 
terminated from participation in the Medicaid program in January 2000 
for poor performance after an October 1999 survey that found actual 
harm and immediate jeopardy deficiencies in quality of care. 

[35] GAO, Nursing Homes: Complaint Investigation Processes Often 
Inadequate to Protect Residents, GAO/HEHS-99-80 (Washington, D.C.: Mar. 
22, 1999).

[36] See Appendix III, amended attachment I to CMS comments.

[37] CMS guidance instructs state survey agencies to establish 
complaint prioritization time frames for serious complaints in terms of 
working days, not calendar days. If a complaint judged to be immediate 
jeopardy was received on a Saturday, the survey agency would not be 
expected to initiate its investigation until Tuesday, 4 days after 
receipt of the complaint.

[38] State survey agency officials were unable to identify the 
investigation priority for 2 of the 36 coroner referrals. However, over 
3 months elapsed between the time the state survey agency received and 
investigated one of these referrals. For the second referral, the 
survey agency could not identify the date of receipt, but nevertheless 
completed its investigation within 12 working days of the resident's 
death.

[39] Our analysis includes 35 of the 36 coroner referrals because the 
survey agency was unable to provide the date of receipt for 1 referral.

[40] GAO/HEHS-98-202, GAO/HEHS-00-197, and GAO-03-561.

[41] See GAO-03-561. This analysis was based on states' most recent 
surveys in OSCAR as of April 9, 2002 and represents a reduction from 
prior surveys when about 45 percent of Arkansas's standard surveys were 
predictable (38 percent nationwide).

[42] In contrast, fewer surveys nationally were predictable for the 
former (13 percent) than the latter (21 percent) reason.

[43] GAO/HEHS-98-202.

[44] GAO/HEHS-00-197.

[45] GAO/HEHS-98-202.

[46] In 1999, we reported that CMS guidance on past noncompliance did 
not require the imposition of a sanction, even for a deficiency that 
contributed to the death of a resident. CMS concurred with our 
recommendation to revise its guidance and on May 28, 2004, instructed 
state survey agencies to impose a civil monetary penalty when citing 
past noncompliance. See GAO, Nursing Homes: Additional Steps Needed to 
Strengthen Enforcement of Federal Quality Standards, GAO/HEHS-99-46 
(Washington, D.C.: Mar. 18, 1999). 

[47] No plan of correction is required because the deficiency is 
assumed to have been corrected and no longer exists. However, CMS could 
require the facility to document how it discovered the deficient 
practice and the corrective action it took.

[48] A portion of CMS's comments was based on tables presented in 
attachment 1 to its comments. Because the tables did not accurately 
reflect the coroner's cases discussed in our report, CMS submitted an 
amended attachment 1 which we have substituted for the original. CMS, 
however, did not make corresponding changes on pages 6 and 7 of its 
comments. 

[49] GAO-03-561.

[50] CMS officials told us that the pressure sore guidance is expected 
to be released before the end of 2004.

[51] Our elapsed time calculation differs from that of CMS because we 
relied on copies of signed receipts provided by the coroner. These 
receipts indicated that the state survey agency received all of these 
referrals either on April 13, 2004, or on April 14, 2004, rather than 
on the dates indicated by CMS in amended attachment 1 to their 
comments. We believe that the approximately 2-week disparity between 
the dates shown on the signed receipts and the dates that the survey 
agency said it received four of these referrals raises a question about 
how promptly the survey agency registers complaints in its tracking 
system. Because the coroner did not begin requiring signed receipts for 
referrals of suspected neglect until March 2004, we were unable to 
determine if there were similar delays in registering the 36 coroner 
referrals received prior to 2004. 

[52] The coroner informed us that these five referrals were delayed 
while awaiting final autopsy reports, which can take 8 to 9 months to 
complete. 

[53] These averages and ranges differ from those CMS provided in its 
comments because CMS included the five 2004 coroner referrals that were 
outside the scope of our review. 

[54] Arkansas state survey agency officials told us that they did not 
investigate one coroner referral they had received. We excluded this 
referral from those received by the survey agency.

[55] Although the state survey agency said it received coroner 
referrals for 2 of the 5 cases, we excluded the two from our analysis 
of referrals investigated by the state survey agency because it could 
provide no documentation of its investigation, including the outcome.

[56] See GAO/HEHS-98-202, GAO/HEHS-00-197, and GAO-03-561.

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