U.S. Department of Health and Human Services 
 
 
Office of Inspector General 
 
 
CMS Should Take Further 
Action To Address States With 
Poor Performance in 
Conducting Nursing Home 
Surveys 
 
 
 
 
 
 
 
C  hristi A. Grimm 
Principal Deputy Inspector General 
 
J anuary 2022, OEI-06-19-00460   
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
 OEI-06-19-00460  U.S. Department of Health and Human Services  
 
O  ffice of Inspector General 
R eport in Brief 
Ja nuary 2022, OEI-06-19-00460 
 
CMS Should Take Further Action To Address 
Why OIG Did This Review 
     
CMS oversees how State survey  States With Poor Performance in 
agencies (States) conduct surveys 
Conducting Nursing Home Surveys  
of nursing homes to assess the 
homes compliance with Federal 
requirements.  CMS provides  What OIG Found 
training, funding, and other  Key Takeaway  Just over half of States28 of 52
assistance to States for nursing  failed to meet the same performance 
Just over half of States 
home oversight and assesses their  measure or measures in 3 or 4 
repeatedly failed to meet 
performance.  Recent work by OIG  consecutive years during FYs 2015
one or more performance 
has found problems with  2018.  States most commonly missed 
measuresmost commonly, 
performance by some Statesfor  performance measures related to 
timeliness requirements
example, one study found that  survey timeliness, which CMS and 
for conducting nursing 
States did not always verify  States often attributed to staffing 
home surveys during FYs 
whether nursing homes corrected  shortages.  The remedy that CMS 
20152018.  CMS relied on 
deficiencies cited during the  consistently imposed on States for 
corrective action plans, 
surveys.  Another study found that  missing performance measures was 
training, and informal 
several States fell far short in  requiring them to submit corrective 
communication to improve 
conducting timely surveys  action plans, but 10 percent of plans 
State performance, but 
following serious complaints about  were missing from CMS files and many 
these efforts did not always 
nursing homes, such as complaints  others lacked substantive detail.  In 
resolve problems.  CMS 
alleging serious injury.  These  addition to requiring States to submit 
raised concerns that it has 
findings raise questions about the  corrective action plans, CMS used other 
few practical options to 
effectiveness of CMS oversight of  remedies, such as providing training 
address intractable 
State performance in conducting  and technical assistance, to address 
problems in some States. 
nursing home surveys, and the  State performance problems. 
ability of CMS to hold States 
Although CMS sometimes imposed financial penalties when States failed 
accountable when problems arise.  
to meet the timeliness requirement for surveys, it frequently offset these 
How OIG Did This Review  penalties with one-time funding adjustments.  In three States, CMS 
escalated concerns about performance to senior State officials, but it 
This review focused on CMS 
rarely imposed formal sanctions and has never initiated action to 
oversight of 52 States (including 
terminate any of its agreements with States for conducting surveys. 
Puerto Rico and the District of 
Columbia) during FYs 20152018.  
What OIG Recommends  
We conducted interviews with CMS 
staff at the central office and 10 
We recommend that CMS: (1) actively monitor States corrective action 
regional offices during February 
plans, (2) establish guidelines for progressive enforcement actions, 
and March, 2020, to learn how they 
(3) engage with senior State officials earlier and more frequently to 
work with States to address serious 
address problems, and (4) revise the State Operations Manual to reflect 
problems with survey performance 
current CMS oversight practices.  CMS concurred with these 
and any challenges that States may 
recommendations.  We also recommend that CMS: (5) disseminate the 
face.  We also collected and 
results of State performance reviews more widely.  In response, CMS 
analyzed documents from CMS 
stated that its current practices already fulfill the recommendation.  We 
about State performance and CMS 
revised the recommendation to clarify the new and expanded 
imposition of remedies and 
dissemination of results we are recommending.  
sanctions on States with poor 
pe rformance.     
TABLE OF CONTENTS 
 
BACKGROUND  1 
FINDINGS  8 
Just over half of States repeatedly failed to meet requirements for conducting nursing home  8 
surveys, most commonly for failures of survey timeliness 
CMS required States to develop corrective action plans to address performance failures, but  11 
10 percent of plans were missing from CMS files and many lacked substantive detail 
To help States improve survey performance, CMS relied on remedies such as training and  13 
technical assistance, and also on maintaining close communication with States 
CMS sometimes imposed financial penalties when States failed to meet the timeliness  14 
requirement for standard surveys; however, CMS frequently offset these penalties with one-time 
funding adjustments 
CMS escalated concerns about persistent poor performance to senior State officials in three  16 
States, but it rarely imposed formal sanctions and has never initiated action to terminate a State 
survey agency agreement  
CONCLUSION AND RECOMMENDATIONS  18 
Actively monitor the use and effectiveness of States corrective action plans and other remedies,  18 
with a focus on making the remedies specific and outcome oriented 
Establish guidelines for progressive enforcement actions, including the use of sanctions, when  19 
persistent or egregious performance problems emerge  
Engage with senior State officials earlier and more frequently to address State performance  19 
problems 
Disseminate results of State performance reviews more widely to ensure that stakeholders  20 
become aware of problems 
Revise the State Operations Manual to reflect current CMS practices in overseeing State survey  20 
performance 
AGENCY COMMENTS AND OIG RESPONSE  21 
DETAILED METHODOLOGY  23 
APPENDICES  26 
ENDNOTES  35 
   
BACKGROUND 
 
Objective 
To identify the extent to which State survey agencies (States) repeatedly failed to 
meet performance standards for conducting nursing home surveys and to assess 
the Centers for Medicare & Medicaid Services (CMSs) use of remedies, sanctions, 
and financial penalties to address State performance problems. 
CMS oversight of nursing homes 
CMS is responsible for the certification and oversight of most of the Nations 
approximately 15,600 nursing homes.1, 2  Federal law requires these nursing homes to 
protect the health, safety, welfare, and rights of nursing home residents, and to 
comply with the requirements for participation in Medicare and Medicaid.3  To 
monitor nursing home compliance with the requirements for participation, CMS 
enters into agreements with States under section 1864 of the Social Security Act (1864 
Agreements).4, 5   
States responsibilities under the 1864 Agreements with CMS include conducting 
standard surveys for each nursing home at least once every  
15 months to certify compliance (or noncompliance) with requirements for 
participation in Medicare and Medicaid.6  (CMS uses 15.9 months to evaluate whether 
States meet this requirement.)7  Additionally, States conduct complaint surveys 
(abbreviated surveys used to investigate allegations of noncompliance) to investigate 
complaints about nursing homes, which is a critical safeguard to protect vulnerable 
residents.8  
In 2016, CMS finalized a new rule for nursing homes that represents the first 
comprehensive update to nursing home regulations since 1991, including new 
requirements for staffing, antibiotic stewardship, and protection from abuse and 
neglect.9  CMS also launched a new survey process for States to assess nursing home 
compliance.10  The new process standardized nursing home survey efforts across 
States and placed new emphasis on identifying resident-specific concerns through 
resident observations and resident interviews.11  The standardized data allow CMS to 
assess State performance on nursing home surveys more consistently.  Training for 
the new process began in July 2017 and States began using the new survey in 
November 2017.12   
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460   Background | 1  In 2019, CMS announced a five-part plan 
CMS Response to Nursing Homes 
aimed at improving the quality of care 
During the COVID-19 Pandemic 
provided in nursing homes.13  These steps 
include: (1) strengthening oversight of State  CMS adjusted its approach to nursing 
survey agencies, such as revising guidance  home oversight in response to the COVID-
for State surveyors; (2) enhancing CMS  19 pandemic.  In March 2020, CMS 
enforcement practices and holding nursing  temporarily suspended annual standard 
homes accountable for the care provided;  surveys and surveys in response to all 
(3)increasing the transparency of complaints except for those categorized as 
information to empower consumers, the most serious, known as immediate 
families, and their caregivers in making jeopardy, and directed States to focus 
decisions that best reflect their needs; oversight activities on conducting targeted 
(4)improving nursing home quality by infection control surveys and responding to 
developing quality measures based on complaints and facility reported incidents 
patient outcomes and investments in that involve serious harm.  In August 2020, 
programs focused on care; and (5) placing CMS authorized States to resume normal 
patients over paperwork by emphasizing operating procedures and conduct annual 
care for the patient without placing standard surveys and surveys in response 
financial or resource burdens on to high-priority complaints.  These changes 
providers.14 are outside the scope of this evaluation. 
CMS oversight of State survey agencies 
Pursuant to the 1864 Agreements and the Social Security Act, States conduct surveys 
to determine whether nursing homes meet the requirements for participation in 
Medicare and Medicaid.15  During these surveys, States may concurrently assess State 
licensure requirements.  Medicare surveys are funded by a discretionary appropriation 
from Congress and States receive 75-percent Federal matching funds for Medicaid 
surveys.16, 17  CMSs survey and certification budget to support these operations has 
remained flat since fiscal year (FY) 2014, at about $397 million annually.18, 19  Although 
CMSs budget remained flat, it increased its allotment to States by about 4 percent 
during this same time period, from $341 million in FY 2015 to $354 million in FY 
2018.20, 21  (Note: After our review period, Congress appropriated approximately 
$100 million in supplemental funds to cover costs for COVID-19-related survey and 
certification activities through the Coronavirus Aid, Relief, and Economic Security 
(CARES) Act.)22 
CMS regional office staff are responsible for evaluating whether States fulfill their 
requirements under the 1864 Agreements.  A primary method for accomplishing this 
is regional offices conducting annual assessments of States to identify inadequate 
performance in conducting nursing home oversight activities.23  CMS may consider 
State survey performance to be inadequate if it finds a pattern of failure to conduct 
surveys in accordance with Federal requirements or a single failure to identify an 
immediate-jeopardy situation.24, 25  When CMS regional offices determine that State 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Background | 2  survey performance is inadequate, they may impose one or more remedies or 
sanctions on the State.26  (See page 4 for more information about remedies and 
sanctions.)  
State Performance Standards System 
CMS regional offices use the State Performance Standards System (SPSS) to evaluate 
whether States are meeting the requirements outlined in the 1864 Agreements and to 
identify areas for which States need to improve the management of their survey and 
certification programs.27, 28  The SPSS establishes performance measures and 
thresholds that set minimum scores for meeting each performance measure.29  CMS 
considers State performance to be inadequate when States do not meet an SPSS 
performance threshold.30   
In 2006, CMS 
redesigned the SPSS  Exhibit 1: The SPSS measures State performance 
framework to  along three dimensions
measure State 
performance along 
three dimensions 
(see Exhibit 1): (1) 
frequency, which 
monitors the number 
and timeframes of 
surveys conducted by 
  Source: OIG analysis of SPSS performance measures.
States; (2) quality, 
which assesses the extent to which States conduct surveys in accordance with Federal 
standards and accurately identify deficiencies during surveys; and (3) enforcement 
and remedy, which evaluates the effectiveness of State enforcement on nursing 
homes.31  As an example, one frequency measure assesses whether the State 
conducted a sufficient percentage of standard surveys during off-hours (i.e., on the 
weekends, in the early morning hours, in the evening hours, or on holidays).32  The 
performance threshold for this measure is 10 percent, which means States must 
conduct at least 10 percent of their standard surveys off-hours to meet this 
performance measure.  Conducting off-hours surveys allows for greater visibility into 
nursing home operations and increases the likelihood that surveyors will observe 
conditions and practices that are typically present.33   
The SPSS measures State survey performance for several facility types, including 
nursing homes, non-accredited hospitals, and ambulatory surgical centers.34  During 
FYs 20152018, the SPSS included 19 performance measures, 12 of which focused 
exclusively on State performance on nursing homes surveys.35, 36  CMS suspended or 
placed on hold 4 of the 12 performance measures during the study period (3 were 
placed on hold for 1 year to allow surveyors to adjust to the survey process and the 
other was suspended for 2 years while CMS reassessed the metric).  (See Appendix A 
for a list of the nursing home performance measures.)  CMS may revise guidance each 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Background | 3   
year to adjust the performance measures, such as changing the threshold at which 
State performance is considered acceptable or suspending a performance measure.  
Following our study period, CMS made several changes to how it monitors State 
performance on the SPSS for FY 2020.  These changes include collecting more current 
survey completion data to assess State progress in meeting survey frequency 
requirements, and the option to include additional measures of underlying issues 
such as staffing in the annual State assessment.37, 38 
CMS Actions for Inadequate State Survey Performance 
The CMS State Operations Manual (SOM) describes the available enforcement actions 
that CMS may impose on States for inadequate survey performance.  The SOM 
categorizes these enforcement actions into two groups: (1) remedies or alternative 
sanctions (remedies) and (2) sanctions.39  CMS also imposes financial penalties for 
inadequate survey performance.  CMS regional offices have significant discretion 
regarding whether to impose these enforcement actions and which to impose.  
Remedies.  The SOM lists five remedies 
that CMS may use to address inadequate 
survey performance from States.40  The 
remedies include: training; technical 
assistance; CMS directed scheduling, which 
involves CMS scheduling surveys that the 
States conduct; directing States to include 
specific improvement activities in their 
quality improvement plans; and corrective 
action plans, in which States develop and 
implement written plans to address the underlying performance problem(s) for each 
SPSS performance measure that it failed to meet.  Although most remedies are 
imposed at the discretion of the CMS regional offices, CMS requires States to 
complete a corrective action plan for each performance measure they fail to meet.41  
(For FY 2018, CMS did not always require States to develop corrective action plans for 
2 of the 12 performance measures if the failure was due to implementation of the 
new survey process.)42 
 
 
 
 
 
 
 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Background | 4   
Sanctions.  CMS may also impose 
sanctions, typically after remedies have 
been tried and State performance remains 
inadequate.  The SOM describes four 
sanctions CMS may use to address 
inadequate survey performance: meeting 
with the Governor and other responsible 
State officials (e.g., Director of Department 
of Health); placing the State on 
compliance for failing to follow the 
Medicaid State Plan; reducing Federal financial participation for survey and 
certification of nursing facilities; and termination of the States 1864 Agreement, 
either in whole or in part.43, 44  CMS regional offices will notify the State in writing 
when it plans to impose a sanction and include the reasons for imposition.   
Financial penalties.  In addition to remedies and sanctions described in the SOM, 
CMS may impose non-delivery deductions, a type of financial penalty, on States for 
not meeting the requirement to survey all nursing homes in the State at least once 
every 15 months.  Non-delivery deductions are monetary deductions from a States 
Medicare Allocation for Survey and Certification because of non-delivered surveys in 
the prior year.45  CMS may assess a non-delivery deduction on States equal to 
75 percent of the estimated cost of surveys at nursing homes that did not receive a 
standard survey within 15 months.46  Some CMS regional offices use an additional 
financial tool, known as benchmarking, which provides incentives to States for 
achieving performance goals (benchmarks).  When benchmarks are in place, CMS 
may withhold a portion of a States allocated funds and release predetermined 
amounts as the State meets each performance benchmark.  Benchmarking is 
sometimes used to address identified performance problems. 
Related work 
Recent work by the Office of Inspector General (OIG) identified problems with the 
performance of some States in conducting surveys, including that States did not 
always follow up after surveys to verify whether nursing homes corrected deficiencies 
such as failure to provide necessary care.  During 20152017, OIG released a series of 
nine reports assessing the extent to which individual States verified that nursing 
homes corrected deficiencies identified during surveys.47  OIG found that seven of the 
nine States did not always verify nursing homes correction of deficiencies, as required, 
and recommended that States improve verification processes.  Examples of 
deficiencies included a nursing homes failure to adhere to proper infection control 
measures and staff failure to ensure appropriate supervision to prevent falls.48  In a 
summary report, OIG recommended that CMS improve its guidance to States, 
improve the forms related to the survey and certification process, and work with 
States on maintaining supporting documentation.49  The Government Accountability 
Office (GAO) raised additional concerns about CMSs lack of oversight of Oregons 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Background | 5   
handling of abuse allegations.50  These findings highlighted the need to evaluate CMS 
response to State performance problems.   
Other related OIG work includes a 2019 report that found some States failed to report 
findings of substantiated abuse in nursing homes to local law enforcement.51  The 
report identified 69 allegations of abuse and found that States did not report findings 
to local law enforcement for 67 of 69 incidents.52  Additionally, OIG reports in 2017 
and 2020 found that some States fell short in meeting required timeframes for 
investigating the most serious nursing home complaints.53, 54  The report found that 
about half of complaints allege serious injury or harm and require a rapid response to 
address the complaint and ensure residents safety, but States investigated about 
15 percent of these complaints late (i.e., after required timeframes).55  States reported 
that staffing shortages contributed to the timeliness problems.  To complement this 
report, OIG published an interactive map that illustrates State-by-State trends in 
nursing home complaints for 2016 through 2018.   
Finally, in a report released in December 2020 about nursing home surveys during the 
COVID-19 pandemic, OIG found that States conducted onsite surveys at 31 percent of 
nursing homes from March 23 through May 30, 2020, which was fewer than during 
the same time period in 2019 when States and CMS were under normal operations 
and conducting standard and other surveys.56  These surveys resulted in fewer 
deficiencies, but allowed States the opportunity to provide nursing homes with 
guidance and other support.  States reported that the COVID-19 pandemic has 
exacerbated a longstanding challenge of maintaining sufficient staffing levels.  
Further, States expressed concern about the mounting backlogs of standard surveys 
and high-priority complaint surveys accumulating during the COVID-19 pandemic.  
Among OIG recommendations was that CMS should work with States to overcome 
staffing and other challenges and that CMS should clarify expectations for States to 
complete backlogs of standard surveys and high-priority complaint surveys.  CMS 
concurred with OIGs recommendations and issued additional guidance on survey 
backlogs in November 2021.  A complete listing of OIG evaluations and audits is 
available online at https:/www.oig.hhs.gov. 
Abbreviated Methodology 
We used multiple data sources to identify the extent to which States repeatedly failed 
to meet performance standards in conducting nursing home surveys and to assess 
CMSs use of remedies, sanctions, and additional enforcement actions to address 
State performance problems.  The data sources for this study were interviews with 
CMS, CMSs public release of SPSS results, and documents from CMS and regional 
offices regarding oversight of State survey performance.  The analysis focused on 
SPSS results for 52 States (including Puerto Rico and the District of Columbia) and the 
resulting actions by CMS during FYs 20152018. 
To describe State performance, we analyzed SPSS results on 12 performance 
measures that were exclusive to State performance on nursing homes.  (See 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Background | 6   
Appendix A for a list of the 12 performance measures.)  To determine which States 
had performance problems, we first calculated the overall number of times each State 
failed to meet a performance measure.  We then calculated how many years (during 
FYs 20152018) each State failed to meet a performance measure.  Finally, we 
identified States with persistent performance problems by counting the number of 
States that missed at least one performance measure in 3 or more consecutive years.  
We counted all failures regardless of scale or magnitude. 
We also reviewed corrective action plans, financial data, correspondence with States, 
and other documents that CMS provided to better understand oversight of States and 
CMSs use of remedies and sanctions.  We conducted interviews with CMS central 
office and leadership from the regional offices.  We spoke with all 10 CMS regional 
offices about the regions use of corrective action plans, their response to persistent 
performance problems, challenges faced by the States in their geographic regions, 
and their coordination with CMS central office. 
See the Detailed Methodology section on page 18 for additional information about 
our data collection and analysis. 
Limitations 
We analyzed the 12 SPSS measures that were exclusive to State survey performance 
on nursing homes and did not analyze the other 7 SPSS measures that included State 
survey performance for other facilities.  Using the data available, the figures for non-
delivery deductions and benchmarks presented in the report include monies for 
inadequate performance on surveys of all facility types, not just nursing homes.  The 
effect of this is that CMS may have imposed fewer financial penalties on States for 
performance exclusive to nursing home surveys than our findings suggest. 
Standards 
We conducted this study in accordance with the Quality Standards for Inspection and 
Evaluation issued by the Council of the Inspectors General on Integrity and Efficiency. 
 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Background | 7   
FINDINGS 
 
Just over half of States repeatedly failed to meet requirements 
for conducting nursing home surveys, most commonly for 
failures of survey timeliness 
State surveys are critical to ensuring the safety and quality of nursing home care.  
CMS uses the SPSS to conduct formal assessments of State survey performance, 
including how frequently States conduct standard surveys and how well they identify 
immediate jeopardy situations, in which residents safety is severely 
compromised.  When States fail to meet SPSS performance measures, nursing home 
residents may be at increased risk for poor care.   
Each year during our study period, most States failed at least one of the SPSS 
performance measures that were exclusive to nursing homes and up to a one-fifth of 
States missed four or more measures.  (See Exhibit 2 for the number of performance 
measures States failed to meet each year.)  Due to changes in the SPSS performance 
measures over the years reviewed, we analyzed a different number of performance 
measures for individual years12 in FYs 2015 and 2016, 11 measures in FY 2017, and 
8 measures in FY 2018.  (See Appendix A for a list of the nursing home performance 
measures.)  The State that missed the most performance measures, Arizona, failed to 
meet 8 performance measures in 1 year and 21 performance measures over the 
4 years.  Only one State, Louisiana, did not miss a single performance measure over 
the 4-year review period.  
  Exhibit 2: Each year, most States failed at least one SPSS performance measure 
 
 
 
 
 
 
   
  Percentage of States that failed to meet: 
 
 
Source: OIG analysis of SPSS results for the measures exclusive to nursing homes, FYs 20152018. 
 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Findings | 8  Over half of States failed to meet the same SPSS performance 
measure or measures over 3 or 4 consecutive years  
We identified 28 States that missed the same SPSS performance measure or measures 
over 3 or 4 consecutive years.  Thirteen of the 28 States repeatedly failed to meet the 
targets for multiple performance measures in 3 or 4 consecutive years; see Exhibit 3.  
For example, eight States missed the same two performance measures in all  
4 years, and two States missed the same three performance measures in all 4 years.      
Exhibit 3: Over half of States failed to meet the same SPSS performance 
measure or measures over 3 (and sometimes 4) consecutive years. 
Number of performance measures missed across 3 (and sometimes 4) 
consecutive years: 
  Source: OIG analysis of SPSS results for 12 measures exclusive to nursing homes, FYs 20152018.
Several States not only failed to meet the same performance measure in each year, 
but their scores were far below the performance threshold.  For example, 
Massachusetts failed to meet the 95-percent threshold to initiate surveys of high-
priority complaints within 10 days by a large margin in all 4 years of the study period.  
In FY 2015, the State conducted only 31 percent of required surveys and then 
dropped to 17 percent in FY 2016.  In FY 2017, the State score improved to 
36 percent, still well below the 95-percent performance threshold.  In FY 2018, 
Massachusetts score for this requirement fell to 19 percent. 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Findings | 9  Arizona failed to meet four performance measures in 3 consecutive years and missed 
two of these in all 4 years reviewed.  Overall, Arizona missed almost half of the 
performance measures (21 of the 43 measures) that were exclusive to nursing homes 
during the 4-year review period. 57  Further, Arizona missed some of these 
performance measures by a large margin.  For example, it missed the threshold to 
initiate surveys of high-priority complaints within 10 days in each of the 4 years.  CMS 
expects States to meet the 10-day timeframe for 95 percent of applicable complaints, 
but Arizona met the timeframe for less than 32 percent of complaints in all 4 years. 
Measures of survey timeliness were the most common type of 
State performance failure, which CMS and States often attributed 
to shortages of surveyors and other staff 
Forty-one percent of the SPSS performance measures that States failed to meet were 
the result of States not conducting high-priority complaint surveys or standard 
surveys within required timeframes.  (These timeliness failures correspond to 2 of the 
12 measures reviewed.)  CMS relies on States to conduct complaint surveys and 
standard surveys in response to health and safety concerns about nursing home 
residents and to gather information about the quality of services in nursing homes.  
Exhibit 4 shows the percentage of performance failures that were for survey 
timeliness.  States not initiating enough high-priority complaint surveys within 
10 days of the allegation accounted for 23 percent of State performance failures, and 
States not conducting standard surveys of all nursing homes within required 
timeframes accounted for 
Exhibit 4: Forty-one percent of State  18 percent of the failures.  
(Statutory timeframes for 
performance failures were for two SPSS 
standard surveys require the 
measures relating to survey timeliness. 
State to survey every nursing 
home at least every 15 months 
and have a Statewide average 
interval not greater than 
12 months between standard 
surveys of all nursing homes.58)  
States also repeatedly missed 
measures of survey timeliness 
more than other measures.  A 
total of 17 States failed to meet 
the performance measure to 
initiate enough high-priority 
complaint surveys within 
required timeframes in all 4 years 
and 6 States did not conduct 
standard surveys within required 
timeframes in all 4 years.  For the 
Source: OIG analysis of CMS data, FYs 20152018.  other 10 of the 12 performance 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Findings | 10  measures, State performance was better; the highest number of States to miss a 
measure in all 4 years was 4 States.  
Of the performance failures related to survey timeliness (41 percent of all 
performance failures), nearly half had corrective action plans or other correspondence 
identifying staffing as the root cause or posed increased staffing as a solution to the 
performance failure.  The most common staffing-related description centered on the 
inability to attract and retain surveyors, often due to not being able to offer high 
enough salaries to compete in local markets.  As one example, Colorado had difficulty 
conducting recertification surveys within required timeframes and explained that 15 
of the 47 surveyor positions were vacant.  The corrective action plan cited long hours 
and low pay as the most common reasons for surveyor resignations, but a proposal 
was before the State legislature for a 3-percent salary increase, which it hoped would 
close the salary gap with the private sector.59   
Interviews with CMS and letters to States also described staffing shortages as a root 
cause of State survey performance problems.  CMS staff from one region explained 
that many of the staffing shortages occur in States with widespread nurse shortages 
and that these States have difficulty attracting and retaining nurses to conduct 
surveys.  CMS reported that addressing the State policies that lead to surveyor 
shortages is out of their purview; however, in one State the staffing situation was so 
problematic that CMS assisted the State with additional funding to support new 
surveyor positions.   
CMS required States to develop corrective action plans to 
address performance failures, but 10 percent of plans were 
missing from CMS files and many lacked substantive detail 
CMS relied on States to develop and implement corrective action plans to correct 
performance problems.  All CMS regional offices confirmed that each year, they 
submit reports to States containing their SPSS scores along with a requirement to 
develop and implement a corrective action plan addressing the underlying 
performance problem(s) for each performance measure that it failed to meet.  CMS 
regional offices reported that, on occasion, they work alongside States to develop 
corrective actions or direct States to include specific actions in the corrective action 
plan, but typically, they rely on States to develop the plans. 
Although CMS requires States to submit corrective action plans for each SPSS 
performance measure they failed to meet, 10 percent of the plans were missing 
(either the State did not submit a plan to CMS or CMS did not submit it to OIG.)60  
Twelve States were missing corrective action plans.  One of these States was missing 
eight plans in a single year and another State was missing seven plans across 3 years.  
CMS relies on its regional offices to review and approve corrective action plans, and 
to monitor the plans at least quarterly to assess progress toward improved 
performance.61 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Findings | 11   
In addition, responses in States corrective action plans often failed to include 
substantive details about actions that would address the performance problem.  For 
example, the CMS regional office required Rhode Island to develop and implement a 
corrective action plan for each of the three missed performance measures.  In its 
response to the CMS regional office, Rhode Island indicated it would work to achieve 
100 percent in [FY] 2017 in all three corrective action plans.  (See Exhibit 5.) 
Exhibit 5: Example of corrective action plans lacking substantive details.   
 
 
Source: OIG analysis of States corrective action plans, FY 2016. 
*See Appendix A for performance measure descriptions. 
In several other States, corrective action plans were nearly identical to plans 
submitted for the previous year, which raises concern that either the plan was 
insufficient to address the problem or that the original plan was not fully 
implemented.  As an example, Delaware had progressively worsening performance, 
initiating surveys within 10 days for 79 percent of high-priority complaints in FY 2016, 
16 percentage points short of the 95-percent requirement.  In FY 2017, they initiated 
surveys within 10 days for only 36 percent of the high-priority complaints but used 
the exact same wording in its corrective action plan as it did in FY 2016.  Following 
this repeated corrective action plan in FY 2017, their performance fell another  
5 percentage points in FY 2018, initiating surveys within 10 days for only 31 percent of 
high-priority complaints.   
Given these issues, it is likely that CMS is missing opportunities to address 
performance issues through corrective action plans.  CMS rarely requires States to 
include specific elements in their corrective action plans other than to describe the 
actions they will take to address the problems.62  This lack of guidance leaves States 
with significant discretion about what to include in their plans and may limit the 
effectiveness of these plans for improving performance.   
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Findings | 12   
In the few instances where CMS did require specific actions, it typically encouraged 
the State to work harder to identify improvement opportunities.  As an example of a 
directed action, one CMS regional office required a State to review their corrective 
action plan from the previous year, determine why that plan did not resolve the 
performance problem, and provide a new plan using this information.  The letter also 
directed the State to include specific milestone dates for improvement.  Other types 
of directed actions included requirements for completing specific trainings to address 
performance problems.   
CMS may also be missing opportunities to ensure that planned corrections are 
implemented and identify innovative solutions to performance problems.  CMS does 
not systematically track States submissions of corrective action plans across regional 
offices.  Without analysis of these data at the national level, CMS has limited insight 
about the effectiveness of State corrective actions or whether States fulfill the 
requirement to complete a corrective action plan.  
To help States improve survey performance, CMS relied on 
remedies such as training and technical assistance, and also on 
maintaining close communication with States  
In addition to corrective action plans, CMS largely relied on remedies, such as training 
and technical assistance, to assist States in overcoming problems with survey 
performance.  CMS regional office staff did not track these efforts and were unable to 
provide many supporting documents describing the training and assistance as a part 
of routine interactions with States.  These remedies were likely useful in many cases, 
but given continual problems in some States, they appear to have been insufficient in 
bringing improvement for States with persistent performance problems.   
CMS regional offices emphasized the importance of strong working relationships with 
States to improve State survey performance.  Regional offices reported they were 
often in constant communication with States, including those that were struggling, 
and one regional office reported having daily check-ins with some States.  CMS staff 
reported that these relationships allowed for open communication about challenges, 
which made it easier to tailor remedies to address specific needs.  One CMS official 
reported that open communication with States led to more complete information 
about the sources of their challenges and made it easier to have frank discussions 
when performance fell below expectations.  Another official explained that they view 
their relationship with States as more of a partnership and collaboration than as 
traditional overseers.   
CMS also used third-party contractors to provide additional support to a few States 
that were struggling with survey performance.  For these States, CMS provided 
support contracts each FY to assist certain States having difficulty meeting 
requirements.  A support contract involves hiring a third party to provide additional 
support to States for their survey and certification functions.  Support contractors may 
 
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OEI-06-19-00460  Findings | 13   
provide a range of services, including conducting required surveys for the State, 
leading training sessions for State surveyors, or assisting States with developing more 
efficient processes.  CMS staff indicated that the agency has very limited funding for 
support contracts and typically offers this type of contract to only one to three States 
per year.   
CMS sometimes imposed financial penalties when States failed 
to meet the timeliness requirement for standard surveys; 
however, CMS frequently offset these penalties with one-time 
funding adjustments 
CMS imposed the financial penalty of a non-delivery deduction for approximately  
60 percent of the applicable State failures to meet SPSS performance measures (16 of 
27).63  For the performance measures in this study, CMS imposed non-delivery 
deductions only when States failed to meet the statutory requirement to survey all 
nursing homes at least once every 15 months.64, 65  This requirement accounted for 
about 11 percent of all State performance failures during FYs 20152018.   
CMS used one-time adjustments to alleviate financial strain 
associated with non-delivery deductions 
During FYs 20152018, CMS withheld $5.1 million in non-delivery deductions and 
awarded $3 million in one-time funding adjustments to these States (59 percent of 
the non-delivery deduction amount).66  CMS sometimes provides money, in the form 
of one-time adjustments, to selected States for specific purchases, such as distance 
learning equipment for surveyors, with the goal of helping States meet their 
performance requirements.67   
CMS reported that it awarded these one-time monetary adjustments to help offset 
the financial losses from non-delivery deductions during our review period because 
they were concerned that the financial losses could compound the financial strain 
associated with years of flat funding.  CMS officials explained that States were already 
struggling with higher operational costs due to inflation and a higher number of 
complaints, making it difficult to ensure they staffed the necessary number of 
surveyors to complete required work.  They believed that further financial losses could 
have the unintended consequence of further worsening State performance.    
CMS awarded nearly the same amount of money in one-time adjustments as it 
imposed in non-delivery deductions in FY 2017.  (See Exhibit 6.)  During this year, 
93 percent of the $1.2 million in non-delivery deductions was offset by the 
$1.1 million in one-time adjustments.68 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Findings | 14  Exhibit 6: One-time CMS adjustments offset 93 percent of the $1.2 million 
in non-delivery deductions during FY 2017. 
Source: OIG analysis of State Medicare Allocations for Survey and Certification, FYs 20152018. 
CMS regional offices sometimes used performance benchmarks 
as an incentive for States to improve performance and recoup 
non-delivery deductions  
CMS regional offices sometimes allowed States to recoup some or all non-delivery 
deductions by achieving certain performance goals, or benchmarks.  As an example of 
performance benchmarks, one CMS regional office withheld 25 percent of the survey 
and certification funding to a State until it met six performance benchmark goals, 
including completing a certain number of standard surveys and complaint surveys by 
a specified date.  CMS required the State to meet all six benchmark goals before it 
released the benchmarked funds.   
Eight of the 10 CMS regional offices used performance benchmarks at 15 States  
(21 times) during our review period.  One regional representative who was a 
proponent of performance benchmarks explained that benchmarks had been a highly 
effective tool, stating that when we do benchmark them, theyre usually not only 
able to come into compliancebut meet what they initially failed at and even 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Findings | 15   
exceed.  In one State where benchmarks appeared to be successful, CMS withheld 
$668,000 in funding until the State met several benchmark goals, such as requiring 
that no more than 11 standard surveys exceed the 15-month timeliness interval 
between nursing home surveys.  The State improved from 113 surveys that failed to 
meet the 15-month requirement in FY 2015 to only 1 that missed it in FY 2016.   
CMS escalated concerns about persistent poor performance to 
senior State officials in three States, but it rarely imposed formal 
sanctions and has never initiated action to terminate a State 
survey agency agreement  
In three States, CMS sent letters about persistently poor State performance to senior 
State officials (e.g., Governor, Directors of Department of Health), and in one of these 
States it also met with the State Health Commissioner, but CMS did not impose any 
other formal sanctions described in the SOM during our review period.  The CMS 
letters escalated concerns in 2 of the 28 States that failed to meet the same SPSS 
performance measure over 3 or 4 consecutive years; the third letter was the result of 
State performance prior to our review.  CMS directed a letter to the Governor in one 
State and to the Directors of the State Health Department in the other two States.  In 
the letters, CMS described the performance problems in detail and underscored that 
State performance fell far short of the requirements in the 1864 Agreement.  CMS 
reported that these letters were effective in getting the attention of senior State 
officials and that they have led to some performance improvements.  In FY 2019
outside of the study periodCMS developed a protocol for escalating concerns, but 
CMS reported that it implements the protocol only as a last resort after they have 
been unsuccessful in helping the State resolve performance problems through other 
methods.  
Although CMS has the authority to initiate action to terminate an 1864 Agreement, 
either in whole or in part, it did not do so with any State during our review period.69  
In the escalation letters for two of the three States, CMS raised the possibility of 
terminating the 1864 Agreement if the State was unable to improve performance but 
did not go forward with the termination.  In a 2016 letter to the Governor of Georgia, 
CMS explained that it would recommend to the Secretary of HHS to initiate action to 
terminate the States 1864 Agreement within 60 days of the letter if the Office of the 
Governor did not provide assurances that it would address the performance 
problems.  For context, Georgia failed to meet 47 percent of the SPSS performance 
measures that were exclusive to nursing homes during our 4-year review period, 
including failing the same three performance measures in all 4 years.70  In a letter sent 
to the Secretary of the Kansas Department of Health and Environment and the 
Governor in 2015, CMS explained that it could revoke the States 1864 Agreement if 
Kansas was unable to correct the problems and that it needed to inform CMS of their 
planned actions within 30 days.  These States improved some aspects of their 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Findings | 16  performance following the letters and CMS did not take action to terminate the 1864 
Agreement in either of these cases. 
CMS and regional offices reported that terminating the 1864 Agreements is the 
option of last resort for addressing problems in States.  CMS staff explained that 
terminating the Agreement could likely lead to significant gaps in oversight of nursing 
homes (and other provider types.)  They explained that any new entity taking on 
survey responsibilities would need to replace the expertise of administrative and 
support staff in addition to the surveyors who conduct the work.  The amount of time 
it would take to onboard and train new staff, they explained, would result in a further 
decline in nursing home oversight, with no surveys conducted for a period of time 
during the transition.  Therefore, they saw terminating the 1864 Agreements as 
unpractical in the current environment.   
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Findings | 17  CONCLUSION AND RECOMMENDATIONS 
State surveys are critical to ensuring the safety and quality of nursing home care, yet 
some States repeatedly failed to meet requirements for conducting the surveys.  
When faced with these problems, CMS largely relied on remedies, such as corrective 
action plans, training, and technical assistance, to improve State performance.  
However, these actions did not resolve performance problems in some States.  CMS 
rarely contacted senior State officials about performance concerns and did not 
impose any other formal sanctions.  CMS and States reported that foundational 
issues, such as shortages of surveyors and other staff, were root causes for many of 
the performance problems and that CMS has few options to address these problems.  
Recognizing these broad and sometimes entrenched challenges, we encourage CMS 
to collaborate with other agencies in HHS with relevant expertise, such as the Office 
of Assistant Secretary for Health or the Health Resources and Services Administration, 
to develop strategies to address entrenched problems and bring about long-term 
improvements.   
In addition, we make five recommendations to CMS for actions it can take more 
immediately within its oversight role to strengthen this crucial protection for nursing 
home residents.  Without effective oversight of nursing homes by the States, residents 
may be at increased risk for harm and poor care.  CMS has pursued new initiatives to 
improve nursing home care and State oversight of that care, but our findings suggest 
that CMS's response to States with persistent problems in survey performance has 
often been ineffective in improving their performance.  Further, OIG evaluation of 
nursing home onsite surveys from March 23 to May 30, 2020, found that the 
COVID-19 pandemic exacerbated State survey agencies longstanding challenges with 
staffing.  In addition, we found that States faced mounting backlogs of standard 
surveys and high-priority complaint surveys that had been suspended for several 
months during 2020.71  Considering the added challenges stemming from the 
pandemic, combined with the persistent poor performance of many States prior to 
the pandemic, it is likely that CMS will continue to face challenges ensuring that some 
States conduct nursing home surveys timely and effectively.  
We recommend that CMS: 
Actively monitor the use and effectiveness of States corrective 
action plans and other remedies, with a focus on making the 
remedies specific and outcome oriented 
CMSs use of remedies, such as corrective action plans, training, and technical 
assistance, did not lead to needed improvements in survey performance in many 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Conclusion and Recommendations | 18   
States.  Despite relying heavily on remedies to improve performance, CMS did not 
actively track and analyze these efforts or their outcomes.  CMS required States to 
develop corrective action plans that address underlying performance problems for 
each SPSS performance measure that they failed to meet; however, many plans were 
missing from CMSs files and CMS did not hold States accountable for ensuring that 
plans have clear and actionable language.  For other remedies such as training and 
technical assistance, CMS communicated often with States and tailored its assistance 
to State needs but did not systematically create or track what it provided to States.   
CMS should work to make remedies more effective tools, including systematically 
tracking their use, monitoring implementation, and assessing effectiveness.  As part of 
this effort, CMS must ensure that States corrective action plans address all failures to 
meet performance measures, describe specific actions that States plan to take, and 
are designed to promote improved survey performance.  CMS should direct States to 
take specific actions in their corrective action plans, such as specifying particular 
training, when appropriate.  CMS could also require States that miss performance 
measures 2 or more years in a row to include an evaluation of the previous corrective 
action plan and explain why it did not lead to adequate survey performance.  Further, 
CMS should look for opportunities to identify innovative or particularly effective plans 
and share those lessons with other States. 
Establish guidelines for progressive enforcement actions, 
including the use of sanctions, when persistent or egregious 
performance problems emerge  
Although CMS is responsible for oversight of most of the nations nursing homes, it 
relies primarily on States to conduct surveys and certify their compliance with Federal 
requirements.  When States demonstrate persistent or egregious performance 
problems, CMS should hold these States accountable using progressive enforcement 
actions.  CMS currently has significant discretion regarding use of remedies and 
sanctions and has rarely opted to use higher-level sanctions even when States 
exhibited persistent problems.  Understanding that the circumstances for each State 
are unique, CMS should establish guidelines for the use of remedies and sanctions 
when performance problems do not improve over time.  For example, CMS could set 
a required timeframe for correcting performance.  The guidelines should also include 
principles for determining the circumstances in which an 1864 Agreement might be 
terminated and describe the procedures for doing so.   
Engage with senior State officials earlier and more frequently to 
address State performance problems  
Despite 28 States failing the same performance measure in 3 or 4 consecutive years 
and anecdotes of significant and intractable performance problems, CMS rarely 
reached out to senior State officials, such as Governors or Department of Health 
Directors, to raise concerns about State survey performance.  At the same time, CMS 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Conclusion and Recommendations | 19   
reported few options for addressing States with persistent performance problems.  
CMS should engage with senior State officials earlier and more frequently when it 
identifies persistent or egregious performance problems.  This could include 
developing guidelines for circumstances that prompt contact with senior State 
officials.  Earlier and more frequent contact may underscore the importance of 
requirements for protecting the health and safety of nursing home residents, build a 
greater understanding about the urgency to resolve performance problems and their 
implications for nursing home residents, and provide opportunities for State officials 
or other stakeholders to develop solutions before problems become critical. 
Disseminate results of State performance reviews more widely 
to ensure that stakeholders become aware of problems  
Although CMS distributes SPSS results to States through memorandums that are 
publicly available, CMS should actively share this information with other stakeholders.  
These stakeholders could include State offices of the Long-Term Care Ombudsman, 
nursing home provider organizations, and patient advocacy groups.  Increased 
attention to SPSS results may encourage States to place a higher priority on 
corrections.  CMS could report and discuss SPSS results in outreach materials and at 
conferences and meetings, such as CMSs National Nursing Home Stakeholder Calls.  
CMS could also publish the results on a platform with other provider data, such as the 
Quality, Certification, and Oversight Report website.   
Revise the State Operations Manual to reflect current CMS 
practices in overseeing State survey performance 
CMS indicated that its regional offices use the SOM to determine which remedies and 
sanctions to impose for inadequate survey performance by States.  The SOM does not 
currently address the use of non-delivery deductions or benchmarking.  Further, the 
practice of notifying senior State officials by letters is not clearly aligned with a 
sanction in the SOM.  CMS should revise the SOM to reflect all current practices for 
responding to States with inadequate survey performance.   
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Conclusion and Recommendations | 20   
 
AGENCY COMMENTS AND OIG RESPONSE 
 
In its comments to this report, CMS affirmed its commitment to the health and safety 
of nursing home residents and described efforts to improve State performance, 
including close communication with States, improvements to the SPSS, and a 
reorganization within CMS.  CMS concurred with four of our five recommendations 
and did not concur or nonconcur with the remaining recommendation.   
Responding to our findings, CMS suggested that an SPSS failure may not always be a 
good indicator of State performance overall.  CMS pointed to one of the measures of 
survey timeliness and noted that States would fail this measure if they miss a single 
survey, which would not necessarily indicate a systematic failure.  Although that may 
be possible, OIGs work has found that many States do have significant and sustained 
problems in meeting timeliness requirements for investigating the most serious 
complaints.72  Further, OIG has found that States have faced substantial backlogs for 
conducting standard surveys following the temporary suspension of standard surveys 
in 2020 due to the COVID-19 public health emergency.73  CMS also made the point 
that for some measures involving small sample sizes, poor performance on a single 
survey can lead to failing the measure.  Further, CMS suggested that when States are 
in the process of making corrections, it may take more than a year to make sufficient 
progress to pass a measure.   
CMS also explained that State performance may be hampered by foundational issues, 
such as staffing, that can frequently be tied to inadequate budgets.  CMS further 
stated that survey workloads have increased since 2015 while the level of Federal 
funding has remained flat, and that without adequate funding, these foundational 
issues will persist and continue to affect State performance.  
Specific to the four recommendations with concurrence, CMS confirmed that it would 
explore additional ways to monitor the use and effectiveness of States corrective 
action plans and other remedies.  CMS also stated that it has developed an escalation 
protocol for use when States have serious performance problems and that it will 
establish further guidelines for progressive enforcement actions when persistent or 
egregious performance problems emerge.  Additionally, CMS noted that it typically 
meets with senior State officials late in the process after attempts to improve have 
been unsuccessful and that it will engage State officials earlier and more frequently to 
address performance problems.  Finally, CMS stated that it will revise the State 
Operations Manual, as appropriate, to reflect current CMS practices in overseeing SA 
performance.   
Regarding the recommendation to disseminate results of State performance reviews 
more widely, CMS stated that it agrees with the importance of disseminating the 
information to stakeholders, but that its current practices already fulfill the 
recommendation.  CMS reported that, since 2018, all stakeholders have had public 
 
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OEI-06-19-00460  Agency Comments and OIG Response | 21   
access to State performance reviews dating back to 2015, including nursing home 
provider organizations, patient advocacy groups, State Ombudsmen, and the general 
public.  Although SPSS results are publicly available on its website, CMS currently 
distributes SPSS results only to Directors of State Survey Agencies.  The OIG 
recommendation is intended to enhance these current practices and engage 
stakeholders more deliberately.   
New activities that could fulfill this recommendation include reporting and discussing 
SPSS results in outreach materials and at conferences and meetings, such as CMSs 
National Nursing Home Stakeholder Calls.  CMS could also publish the results on a 
platform with other provider data, such as the Quality, Certification and Oversight 
Report website.  We revised the recommendation to provide additional clarification 
and detail about suggested actions and ask that CMS clarify its concurrence or 
nonconcurrence in its Final Management Decision.   
CMS stated that it will continue to work closely with its colleagues throughout CMS 
and at States to ensure that nursing home residents receive high-quality care and to 
work with OIG on issues related to States with poor performance in conducting 
nursing home surveys.  We appreciate CMSs continued commitment to the health 
and safety of nursing home residents and its work to monitor State performance and 
hold States accountable for meeting nursing home survey standards.  For the full text 
of CMSs comments, see Appendix C.  
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
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OEI-06-19-00460  Agency Comments and OIG Response | 22   
DETAILED METHODOLOGY 
 
Methodology 
This report identifies the extent to which States repeatedly failed to meet SPSS 
performance measures in conducting nursing home surveys and assesses CMSs use 
of remedies, sanctions, and additional enforcement actions to address State 
performance problems.  The data sources for this study were: (1) CMSs public release 
of SPSS performance data, (2) interviews with CMS officials, and (3) documents from 
CMS headquarters and their regional offices regarding oversight of State survey 
performance.  We analyzed performance data and documentation for all 52 State 
survey agencies (including Puerto Rico and the District of Columbia) during FYs 2015
2018, and the resulting actions by CMS.    
State performance data  
To assess State performance, we used data from two sources: (1) CMSs public release 
of SPSS results for FYs 20152018 and (2) CMS regional office SPSS scoresheets.74, 75  
We analyzed 12 SPSS performance measures during FYs 20152018 that were 
exclusive to nursing homes.  CMS suspended or placed on hold 4 of the 
12 performance measures during the study period (one was suspended for 2 years).  
(See Appendix A for a list of the 12 performance measures.)  We used CMSs public 
releases of SPSS results to analyze 11 of the performance measures and the CMS 
regional office scoresheets to analyze one performance measure because it was 
combined with other facility types in the CMS public releases.  
To determine which States had persistent performance problems, we first calculated 
the number of times each State failed to meet a performance measure.  We then 
calculated how many years a State failed to meet each performance measure.  Finally, 
we identified States with persistent performance problems by counting the number of 
States that missed at least one performance measure in three or more consecutive 
years.  We counted all failures regardless of scale or magnitude.  
Note: A previously published OIG study (OEI-01-19-00421) also reported State failures 
to meet performance measures related to complaints.  This report used a different 
underlying data set, the Automated Survey Processing Environment 
Complaint/Incident Tracking System (ACTS), from this report.  The prior report 
analyzed the ACTS data using calendar years (as opposed to fiscal years) and ACTS 
does not have the same reconciliation process that CMS conducts on SPSS 
performance measures.  As a result of these differences, there are minor 
inconsistencies between the underlying data in the two reports.   
 
 
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OEI-06-19-00460  Detailed Methodology | 23   
CMS interviews  
We interviewed officials and staff from the 10 CMS regional offices and CMS central 
office about their approach to oversight and enforcement of the SPSS standards.  All 
interviews were conducted by telephone between February 3 and March 4, 2020.  We 
conducted qualitative analysis of the interview transcripts to identify themes and 
areas for additional analysis.  We additionally accepted responses to some followup 
questions in writing. 
The interviews with CMS regional offices typically included branch, division, and 
regional managers and directors from the CMS Survey and Operations Group.  
Although all locations were represented, some interviews involved two regions (and in 
once case three locations).  We asked about the regions use of corrective action plans, 
their response to persistent performance problems, challenges faced by the States in 
their geographic regions, and their coordination with CMS Central Office.  To further 
our understanding of the data, we also asked for context about some State 
performance and CMS actions regarding that performance. 
We conducted one interview with CMS Central Office; it included key leadership from 
the Quality, Safety and Oversight Group (QSOG) and the Survey and Operations 
Group (SOG).  In this interview, we discussed roles and responsibilities for overseeing 
State performance, tools for addressing performance problems, and some of the 
underlying causes of persistent performance problems. 
CMS data submission 
We requested from CMS documentation about their imposition of remedies and 
sanctions on States for inadequate performance during FYs 20152018.  CMS 
submitted the following documentation: 
State Performance Review Packets for each State during FYs 20152018.  These 
packets contained multiple documents, including: (a) SPSS scoresheets, (b) letters 
from CMS to States notifying them of SPSS results and any additional requirements 
based on those results, (c) State responses to notification of results, (d) and any 
additional correspondence between CMS and the State such as letters to senior State 
officials about poor performance; State corrective action plans required by CMS for 
each SPSS performance measure they failed to meet; and supplemental documents 
describing additional enforcement actions CMS took to improve State survey 
performance, including letters to senior State officials and financial penalties.   
From these documents, we assessed how CMS worked with States to address 
inadequate survey performance.  We based our analysis of remedies and sanctions on 
Chapter 8 of the CMS SOM and 42 CFR  488.320.76   
We reviewed State corrective action plans and the associated correspondence 
between CMS and States.  We used letters from CMS to States notifying States of 
their SPSS results to determine whether CMS required a corrective action plan.  If CMS 
 
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OEI-06-19-00460  Detailed Methodology | 24   
did not indicate, in the letters, the specific performance measures for which States 
should develop corrective action plans, we considered the corrective action plan to be 
required when both the public SPSS results and regional offices SPSS scoresheet 
indicated the State failed to meet a performance measure.  For each required 
corrective action plan, we determined whether the plan was submitted as required 
and assessed the content of the individual corrective action plans. 
We reviewed all sanction and enforcement action information provided by CMS.  We 
considered CMS letters to senior State officials that raised serious concerns about 
State performance to be the formal sanction of meeting with the Governor and other 
responsible State officials.  We reviewed letters from CMS to States that established 
performance benchmarks and CMS funding associated with these benchmarks.  We 
also analyzed State Medicare Allocations to gain insight into the dollar amount of 
non-delivery deductions and allocations to States for one-time awards.  
 
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OEI-06-19-00460  Detailed Methodology | 25   
 
APPENDIX A 
 
Summary of State Performance Measures Exclusive to Nursing 
Homes 
For this study, we analyzed State outcomes on 12 SPSS performance measures that 
were exclusive to nursing homes, FYs 20152018.   
Frequency Dimension 
Performance Measure  Threshold Criterion Summary 
F1: Off-Hours Nursing Home Surveys   The State must achieve a score of 10 percent or higher in conducting 
standard surveys either on the weekend, in the early morning hours 
prior to 8 a.m., or in the evening hours after 6 p.m., or on holidays.  
Additionally, health survey teams must enter the facility together.   
F2: Frequency of Nursing Home Surveys  All Standard health surveys conducted must not exceed 15.9 months 
after the last day of the previous standard health survey.  Additionally, 
the statewide average interval of standard health surveys must not 
exceed 12.9 months. 
F4: Timeliness of Upload Into Certification  The average number of days between the final State survey to the date 
and Survey Provider Enhanced Reporting  data are entered into CASPER must not exceed 70 days. 
(CASPER) System of Standard Surveys for 
Nursing Homes 
Quality Dimension 
Performance Measure  Threshold Criterion Summary 
Q1: Documentation of Deficiencies for  For nursing homes, the State must achieve a score of 85 percent or 
Nursing Homes  higher on seven criteria.  These criteria evaluate whether the State 
documents all deficiencies on the form CMS-2567, Statement of 
Deficiencies, in accordance with the Principles of Documentation and 
the State Operations Manual.   
Q2: Conduct of Nursing Home Health  The State must achieve an average score of 3.0 or higher for nursing 
Surveys in Accordance With Federal  home health surveys on six criteria.  These six criteria are FOSS 
Standards, as Measured by Federal  measures.  
Oversight Support Surveys (FOSS) (on 
 
hold for FY 2018)  
 
 
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OEI-06-19-00460  Appendix A | 26   
Quality Dimension 
Performance Measure  Threshold Criterion Summary 
Q3: Documentation of Noncompliance in  The State must achieve a score of 80 percent or higher for the 
Accordance with Federal Standards for  agreement rate between deficiencies identified onsite and deficiencies 
Nursing Home Health FOSS Surveys (on  cited on CMS-2567 for nursing home health FOSS surveys.   
hold for FY 2018)  
Q4: Identification of Health, Life Safety  The State must achieve a score of 90 percent or higher for deficiencies 
Code (LSC) and Emergency Preparedness  cited on regional office comparative surveys at immediate jeopardy or 
(EP) Deficiencies on Nursing Home  actual harm levels or that resulted in substandard quality of care, and 
Surveys as Measured by Federal  for surveys as the same or higher levels or severity, the State must not 
Comparative Survey Results (on hold for  miss citing similar findings. 
FY 2018) 
Q6: Prioritizing Complaints and Facility  For nursing homes, the State must achieve a score of 90 percent or 
Self-reported Incidents  higher for sampled surveys in which the State follows CMS guidelines 
in prioritizing Federal complaints and incidents that require Federal 
onsite surveys. 
Q7, Threshold 3: Timeliness of Complaint  The State must achieve a score of 95 percent or higher for initiating 
and Facility Self-Reported Incident  complaint surveys within 10 working days of the received date of 
Investigations, Non-Immediate Jeopardy  complaints and incidents where the State prioritizes the intake as Non-
High-Priority  Immediate Jeopardy High-Priority. 
Q9: Quality of Complaint Investigation  The State must achieve a score of 85 percent or higher in criteria 
(suspended in FYs 2017 and 2018)  assessing how State nursing home complaint surveys follow protocols 
outlined by CMS. 
Enforcement and Remedy Dimension 
Performance Measure  Threshold Criterion Summary 
E2: Timeliness of Mandatory Denial of  The State must achieve a score of 80 percent or higher for sending 
Payment for New Admissions (DPNA)  imposition notices to the facility or transferring enforcement cases to 
Notifications for Nursing Homes  CMS by the 70th day.  Cases involving Medicaid-only nursing homes 
are excluded. 
E4: Special Focus Facilities (SFFs) for  The State must achieve a score of 100 percent with each State 
Nursing Homes  identifying and conducting standard surveys at SFFs twice a year.  
Additionally, the State recommendations for enforcement remedies to 
the regional office or State Medicaid Agency must follow survey and 
certification criteria.   
 
 
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OEI-06-19-00460  Appendix A | 27   
APPENDIX B 
Number of States That Failed To Meet Each Performance Measure by 
Year, FYs 20152018 
Exhibit B-1: Number of States That Failed To Meet Each SPSS Performance 
Measure by Year, FYs 20152018 
Performance Measure  FY 2015  FY 2016  FY 2017  FY 2018  Total 
F1: Off-Hours Surveys for Nursing Home  2  1  1  2  6 
 
F2: Frequency of Nursing Home Surveys  16  17  12  28  73 
 
F4: Timeliness of Upload Into Certification and Survey 
Provider Enhanced Reporting (CASPER) System of  5  6  5  5  21 
Standard Surveys for Nursing Homes
Q1: Documentation of Deficiencies for Nursing Homes  7  5  7  6  25 
 
Q2: Conduct of Nursing Home Health Surveys in 
Accordance With Federal Standards, as Measured by 
1  2  1  N/A  4 
Federal Oversight Support Surveys (FOSS) (on hold for 
FY 2018) 
 
Q3: Documentation of Noncompliance in Accordance 
With Federal Standards for Nursing Home Health FOSS  0  1  0  N/A  1 
Surveys (on hold for FY 2018) 
 
 
Q4: Identification of Health, Life Safety Code (LSC) and 
Emergency Preparedness (EP) Deficiencies on Nursing 
7  7  8  N/A  22 
Home Surveys as Measured by Federal Comparative 
Survey Results (on hold for FY 2018) 
 
Q6: Prioritizing Complaints and Facility Self-Reported 
15  15  15  17  62 
Incidents 
 
Q7, Threshold 3: Timeliness of Complaint and Facility 
Self-Reported Incident Investigations, Non-Immediate  21  20  23  29  93 
Jeopardy High-Priority 
 
Q9: Quality of Complaint Investigation (suspended in FYs 
17  13  N/A  N/A  30 
2017 and 2018) 
 
 
 
E2: Timeliness of Mandatory Denial of Payment for New 
12  16  12  13  53 
Admissions (DPNA) Notifications for Nursing Homes 
 
E4: Special Focus Facilities (SFFs) for Nursing Homes  3  5  3  5  16 
 
Total 106 108 87 105 406 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Appendix B | 28  AGENCY COMMENTS
DATE:  December 3, 2021 
TO:  Christi A. Grimm 
Principal Deputy Inspector General 
Office of Inspector General 
FROM:  Chiquita Brooks-LaSure 
Administrator 
Centers for Medicare & Medicaid Services 
SUBJECT:  Office of Inspector General Draft Report: CMS Should Take Further Action to Address 
States With Poor Performance in Conducting Nursing Home Surveys, OEI-06-19-00460 
The Centers for Medicare & Medicaid Services (CMS) appreciates the opportunity to review and 
comment on the Office of Inspector Generals (OIG) draft report.  
CMS is charged with developing and enforcing quality and safety standards across the nations health 
care system, a responsibility that the Agency takes seriously. CMS is committed to the health and safety 
of all nursing home residents and shares responsibility of nursing home oversight with State Survey 
Agencies (SAs), which conduct onsite surveys at Medicare and Medicaid certified facilities to assess 
compliance with Federal regulations. CMS works with the SAs to strengthen oversight so that the care 
provided in nursing homes is of the highest quality.   
As outlined in Section 1864 of the Social Security Act, CMS enters into agreements with SAs (1864 
Agreements) to carry out surveys of all Medicare and Medicaid certified facilities for the purpose of 
certifying compliance or non-compliance with CMSs conditions of and requirements for participation. 
CMS outlines the survey process in the State Operations Manual, which guides the SAs in determining a 
nursing homes compliance with Federal requirements. SAs also serve as the front-line responders to 
address health and safety concerns raised by residents, their families, and nursing home staff.  
CMS conducts a yearly formal assessment of whether SAs fulfill their responsibilities, as outlined under 
each SAs 1864 Agreement. During the formal assessment, CMS evaluates each SAs performance on a 
number of measures through the State Performance Standard System (SPSS) program. The SPSS is a 
three-dimensional structure (frequency, quality, and enforcement and remedy) that provides a framework 
to organize and measure important aspects of SA survey activities. The three dimensions also support 
efforts to standardize and promote consistency among SAs.  
Over the years, CMS has made updates to the SPSS program to improve oversight of SA performance. 
For example, in 2006, CMS redesigned the SPSS to emphasize that the value of the survey program stems 
not only from completing surveys timely, but also from the quality of the surveys themselves, with an 
emphasis on the proper identification of deficiencies, and the enforcement and remedy of identified 
problems. In 2017, CMS assessed whether revisions were needed to improve the performance metrics and 
implemented a new long-term care survey process (LTCSP). In 2018, CMS launched an initiative to 
evaluate the SPSS process and identify ways to improve how the agency monitors and evaluates SA 
performance. Since implementing the new LTCSP, CMS now has more robust data that can be used to 
monitor and improve SA performance. These changes reflect recommendations from both CMS and SAs.  
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys
OEI-06-19-00460        APPENDIX C | 29 In responding to the OIGs findings, CMS notes that SPSS results are a report of whether a SA met the 
measurement criteria, but may not reflect the broader context of SA performance. For example, OIG 
states that survey timeliness is the most commonly missed measure, but we note that some measures are 
absolute, such as the nursing home standard survey timeliness requirement, and SAs can fail this measure 
by missing one survey out of hundreds of surveys conducted over a year. While SAs may have failed the 
performance measure, the single failure is not evidence of a systematic failure on the part of the SA. 
Additionally, some measures include small sample sizes, and a single failure in these cases could lead to a 
failure of the SPSS measure. As such, CMS measures not only the timeliness of surveys, but also the 
quality of the surveys themselves and the proper identification of deficiencies. For example, in 2015, 
sixteen states failed the quality measure for the adequacy of documentation; however, after CMS worked 
directly with individual states, fewer started failing this measure, and in 2019 all states met the measure 
requirements. CMS evaluates SA survey performance in addition to the SPSS by evaluating their 
completion rate of Federal workload requirements and whether or not 100 percent of cases that require 
enforcement were reviewed, and by considering internal metrics. 
SAs with recurring SPSS performance issues work with their CMS Locations to improve performance. 
CMS and SAs work together to determine the root causes driving SA performance problems, and CMS 
engages in vigorous oversight efforts to drive improvements as quickly as possible. The nature of the 
enhanced oversight is driven by what factors are causing continued performance shortcomings, and 
therefore may vary in oversight activities. CMS is in constant communication with SAs, and CMS may 
offer training, help develop action plans, or provide technical assistance. In a limited number of cases, 
CMS engages third-party consultants to assess an SAs current state of operations, provide 
recommendations for improvements, and provide technical training for a more standardized and efficient 
operational approach. Due to funding limitations, CMS may offer this type of third-party assistance to 
only one to three states per year. 
While CMS has taken a number of actions to help SAs improve performance, as OIG noted, CMS has 
few practical options to address intractable problems, such as chronic staffing shortages. There are 
multiple factors that can affect survey performance, such as training, staffing vacancies, the volume of 
complaint surveys, staff tenure, and others, which the SPSS does not consider. Foundational issues, such 
as staffing, can frequently be tied to inadequate budgets. Many SAs are unable to offer salaries that are 
competitive with local private sector salaries, which weakens their ability to attract employment 
candidates. It also is important to note that survey workloads, especially complaint surveys, have 
increased rapidly since 2015 (complaint investigations grew by over 5,500 cases between FY 2015 and 
FY 2019), while the level of funding has remained flat at $397 million since FY 2015. The ongoing 
growth in complaints and associated survey workload inhibit the SAs ability to address issues 
proactively through standard surveys. In some cases, issues that could be easily identified during standard 
surveys go unaddressed and become more difficult and expensive to correct. Without adequate funding, 
these foundational state issues will persist.  
CMS can impose sanctions against SAs for inadequate survey performance (42 CFR 488.320). However, 
given that SAs have been underfunded for years despite growing workloads, further restricting funds 
would be counterproductive towards ensuring the health and safety among nursing home residents. CMS 
continues to work with SAs individually to address their unique issues, for example, by providing training 
or sharing best practices when needed. When SAs have persistent performance issues, CMS may grant a 
one-time monetary adjustment to establish key benchmarks to drive performance. These one-time 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460       Appendix C | 30 monetary adjustments are in recognition that the SAs have been underfunded for years despite increased 
workloads. CMS has found the one-time adjustment often improves SA performance and recognizes that 
changes and improvements within a SA can take time. Therefore, evidence of incremental improvements 
does not justify revoking an 1864 Agreement, which would impact all provider types, not only nursing 
homes. For example, a SA struggling with the timeliness of survey completion had a non-delivery 
deduction (financial penalty) imposed for their failure to complete required workloads. An assessment of 
the SA identified 17 surveyor vacancies that significantly contributed to this lapse. CMS awarded a one-
time monetary adjustment that was tied to hiring surveyors, so every time the SA filled a vacancy, a 
portion of the money was released, which resulted in improved SA performance.   
Additionally, not only does CMS try to address each SAs unique issues, CMS also reviewed its own 
internal structure to determine how best to improve survey and certification functions. In the spring of 
2020, CMS implemented a reorganization to align CMS Location staff responsible for state oversight to 
more closely align with the CMS headquarters staff to ensure consistency in approach and process 
improvement. CMS will continue to work closely with our colleagues throughout CMS and the SAs to 
ensure that the care provided in nursing homes is of the highest quality.  
CMS thanks OIG for its efforts on this important issue and looks forward to working with OIG on this 
and other issues in the future. OIGs recommendations and CMSs responses are below.  
OIG Recommendation 
Actively monitor the use and effectiveness of States corrective action plans and other remedies, with a 
focus on making the remedies specific and outcome oriented. 
CMS Response 
CMS concurs with OIGs recommendation. OIG noted in its report that to help SAs improve survey 
performance, CMS relies on remedies and maintaining close communications with SAs. CMS believes in 
close working relationships with SAs with open communication to collaborate on responding to the 
unique issues of each state. For example, CMS previously held quarterly meetings with a SA to review 
progress toward its goals and helped the SA revise plans as needed. While CMS assesses SAs progress 
with corrective action plans through the annual SPSS review, CMS will explore additional ways to 
monitor the use and effectiveness of states corrective action plans and other remedies, with a focus on 
making the remedies specific and outcome oriented.  
OIG Recommendation 
Establish guidelines for progressive enforcement actions, including the use of sanctions, when persistent 
or egregious performance problems emerge.  
CMS Response 
CMS concurs with OIGs recommendation. CMS developed an escalation protocol that it uses when SAs 
have serious performance problems, and a part of that process includes an escalation letter that is sent to 
senior state government officials. For example, CMS has met with the governors and health agency 
commissioners of states to discuss an SAs continued lack of improvement in performance. While CMS 
believes it is important to maintain flexibility in responding to each states unique issues, within those 
bounds, CMS will establish guidelines for progressive enforcement actions, including the use of 
sanctions, when persistent or egregious performance problems emerge.  
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460       Appendix C | 31 OIG Recommendation 
Engage with senior State officials earlier and more frequently to address State performance problems. 
CMS Response 
CMS concurs with OIGs recommendation. In CMSs escalation protocol, CMS typically meets with 
senior state government officials as a last resort. However, CMS has also encouraged SAs to meet with 
their state commissioner to ask for state funding of SA programs to improve timeliness of surveys and 
decrease the backlog. CMS will engage with senior state officials earlier and more frequently to address 
state performance problems.  
OIG Recommendation 
Disseminate results of State performance reviews more widely to ensure that stakeholders become aware 
of problems. 
CMS Response 
CMS agrees with OIG that providing stakeholders with access to results of state performance reviews is 
important in ensuring awareness of problems, which is why CMS has been publishing state performance 
reviews annually on its public website. Since 2018, all stakeholders have had public access to the states 
performance dating back to 2015.1 Considering CMSs ongoing commitment to transparency of these 
reviews posted on the CMS website, available to nursing home provider organizations, patient advocacy 
groups, state Ombudsman, and the general public, CMS believes this recommendation to be implemented, 
but the Agency will consider whether additional opportunities exist to further disseminate this 
information. 
OIG Recommendation 
Revise the State Operations Manual to reflect current CMS practices in overseeing State survey 
performance.  
CMS Response 
CMS concurs with OIGs recommendation. As both OIGs report and this response have highlighted, 
CMS engages with SAs using all the tools at our disposal. CMS will review and as appropriate, revise the 
State Operations Manual to reflect current CMS practices in overseeing SA performance.  
1 FY2017 (published 2018); FY2018 (published 2019); FY 2019 & 2020 Results, FY 2021 Guidance; Archived 
Administrative Memos 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460                         Appendix C | 32 Acknowledgments and Contact 
Acknowledgments 
Ben Gaddis served as the team leader for this study and Karl Mari Santos served as 
the lead analyst.  Others in the Office of Evaluation and Inspections who conducted 
the study include Troy Yamaguchi.  Office of Evaluation and Inspections staff who 
provided support include Joseph Chiarenzelli, Kevin Farber, and Christine Moritz. 
This report was prepared under the direction of Ruth Ann Dorrill, Regional Inspector 
General for Evaluation and Inspections in the Dallas Regional Office, and Amy 
Ashcraft, Deputy Regional Inspector General. 
Contact 
To obtain additional information concerning this report, contact the Office of Public 
Affairs at.  OIG reports and other information can be found on the OIG website at 
oig.hhs.gov. 
Office of Inspector General 
U.S. Department of Health and Human Services 
330 Independence Avenues, SW 
Washington, DC 20201 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  Acknowledgments and Contact | 33   
ABOUT THE OFFICE OF INSPECTOR GENERAL 
The mission of the Office of Inspector General (OIG), as mandated by Public Law 95-
452, as amended, is to protect the integrity of the Department of Health and Human 
Services (HHS) programs, as well as the health and welfare of beneficiaries served by 
those programs.  This statutory mission is carried out through a nationwide network 
of audits, investigations, and inspections conducted by the following operating 
components: 
The Office of Audit Services (OAS) provides auditing services for HHS,
either by conducting audits with its own audit resources or by overseeing audit work 
done by others.  Audits examine the performance of HHS programs and/or its 
grantees and contractors in carrying out their respective responsibilities and are 
intended to provide independent assessments of HHS programs and operations.  
These audits help reduce waste, abuse, and mismanagement and promote economy 
and efficiency throughout HHS. 
The Office of Evaluation and Inspections (OEI) conducts national
evaluations to provide HHS, Congress, and the public with timely, useful, and reliable 
information on significant issues.  These evaluations focus on preventing fraud, waste, 
or abuse and promoting economy, efficiency, and effectiveness of departmental 
programs.  To promote impact, OEI reports also present practical recommendations 
for improving program operations. 
The Office of Investigations (OI) conducts criminal, civil, and administrative
investigations of fraud and misconduct related to HHS programs, operations, and 
beneficiaries.  With investigators working in all 50 States and the District of Columbia, 
OI utilizes its resources by actively coordinating with the Department of Justice and 
other Federal, State, and local law enforcement authorities.  The investigative efforts 
of OI often lead to criminal convictions, administrative sanctions, and/or civil 
monetary penalties. 
The Office of Counsel to the Inspector General (OCIG) provides
general legal services to OIG, rendering advice and opinions on HHS programs and 
operations and providing all legal support for OIG internal operations.  OCIG 
represents OIG in all civil and administrative fraud and abuse cases involving HHS 
programs, including False Claims Act, program exclusion, and civil monetary penalty 
cases.  In connection with these cases, OCIG also negotiates and monitors corporate 
integrity agreements.  OCIG renders advisory opinions, issues compliance program 
guidance, publishes fraud alerts, and provides other guidance to the health care 
industry concerning the anti-kickback statute and other OIG enforcement authorities.
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys 
OEI-06-19-00460  About the OIG | 34   
ENDNOTES 
 
 
1 Sections 1819(f)(1) and 1919(f)(1) of the Social Security Act.  
2 CMS, Action Plan for Further Improvement of Nursing Home Quality.  Accessed at https://www.cms.gov/Medicare/Provider-
Enrollment-and-Certification/CertificationandComplianc/Downloads/2016-2017-Nursing-Home-Action-Plan.pdf on August 11, 
2019.  Additionally, when we refer to nursing homes, we are referring to facilities that are both Medicare Skilled Nursing 
Facilities (SNFs) and Medicaid Nursing Facilities.  
3 Sections 1819(f)(1) and 1919(f)(1) of the Social Security Act; 42 CFR part 483, subpart B, including 42 CFR  483.70. 
4 Social Security Act  1864(a) and 1902(a)(33); 42 CFR  488.330; CMS, State Operations Manual (SOM), Pub. No. 100-07, Ch. 1 
 Program Background and Responsibilities, Sections 1002 and 1004 (Rev. 123, 10-03-14). 
5 Social Security Act  1819(g) and 1919(g). 
6 Sections 1819(g)(2)(A)(iii) and 1919(g)(2)(A)(iii) of the Social Security Act; 42 CFR  488.308 and 488.330.  The State must also 
have a state-wide average interval between standard surveys at a nursing home of 12 months or less. 
7 CMS, FY 2018 State Performance Standards System Guidance, Admin Info: 18-02-ALL, October 17, 2017.  CMS also uses 
12.9 months for the statewide average interval between standard surveys at a nursing home. 
8 42 CFR  488.301 and 488.332; CMS State Operations Manual (SOM), Pub. No. 100-07, Ch. 5Complaint Procedures, Section 
5300 (Rev. 191, 07-19-19).  States do not conduct a survey if the complaint raises issues that are outside the purview of Federal 
participation requirements. 
9 Testimony of CMS Chief Medical Officer, Dr. Kate Goodrich, to the U.S. House Energy and Commerce Committee, 
Subcommittee on Oversight and Investigations, September 6, 2018; Medicare and Medicaid Programs; Reform of 
Requirements for Long-Term Care Facilities, 81 Fed. Reg. 68688 (October 4, 2016).  
10 CMS, Preparation for Launch of New Long-Term Care Survey Process (LTCSP), November 24, 2017.  Accessed at 
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Policy-and-Memos-to-
States-and-Regions-Items/Survey-and-Cert-Letter-18-05 on February 1, 2021. 
11 CMS, New Long-Term Care Survey Process.  Accessed at https://www.cms.gov/Medicare/Provider-Enrollment-and-
Certification/GuidanceforLawsAndRegulations/Downloads/New-Long-term-Care-Survey-Process%E2%80%93Slide-Deck-and-
Speaker-Notes.pptx on August 20, 2019. 
12 Ibid. 
13 CMS, Ensuring Safety and Quality in Americas Nursing Homes, April 15, 2019.  Accessed at 
https://www.cms.gov/blog/ensuring-safety-and-quality-americas-nursing-homes on December 29, 2020.  As of July 9, 2021, 
the previous link was not available on CMSs website.  OIG retained a copy of the original blog post for internal 
documentation.  Compliance Group, Inc., a private consulting firm, published the text of CMSs blog post on their website.   
14 Ibid. 
15 Social Security Act  1902(a)(33). 
16 42 United States Code  1396b (a)(2)(D). 
17 CMS, HHS FY 2018 Budget in Brief-CMS-Program Management,  Accessed at 
https://www.hhs.gov/about/budget/fy2018/budget-in-brief/cms/program-management/index.html, on April 1, 2021. 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Endnotes | 35   
 
18 CMS, HHS FY 2018 Budget in Brief-CMS-Program Management,  Accessed at 
https://www.hhs.gov/about/budget/fy2018/budget-in-brief/cms/program-management/index.html, on April 1, 2021.  
19 CARES Act Financial Guidance to State Survey Agencies, April 20, 2020.  Accessed at 
https://www.cms.gov/files/document/cares-act-financial-guidance-state-survey-agencies.pdf on December 9, 2020. 
20 CMS, Final Fiscal Year (FY) 2016 State Medicare Allocations for Survey & Certification (S&C), Admin Info: 16-23-ALL,  
April 1, 2016. 
21 CMS, Final Fiscal Year (FY) 2018 State Medicare Allocations for Survey & Certification (S&C), Admin Info: 18-12-ALL,  
June 8, 2018. 
22 The CARES Act provided $200 million to CMS for Program Management, on the condition that not less than $100 million 
be made available for necessary survey and certification expenses, prioritizing nursing home facilities in areas where there is 
community transmission of coronavirus.  CARES Act, P.L. No. 116-136, Division B, Emergency Appropriations for Coronavirus 
Health Response and Agency Operations, Title VIII (March 27, 2020). 
23 42 CFR  488.320(a). 
24 42 CFR  488.318(a); CMS State Operations Manual (SOM), Pub. No. 100-07, Ch. 8Standards and Certification, Section 
8000H (Rev. 1, 05-21-04).  42 CFR 488.301 defines immediate jeopardy as a situation in which the providers noncompliance 
with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a 
resident. 
25 CMS provides several circumstances for which it will determine State performance to be inadequate in Section 8000C of the 
SOM.  For example, CMS considers State performance to be inadequate when the State demonstrates a pattern of failure to 
utilize enforcement actions to assure continued compliance or when it fails to identify an immediate jeopardy situation. 
26 Sections 1819(g)(3)(C) and 1919(g)(3)(C) of the Social Security Act; 42 CFR  488.320; CMS, SOM, Pub. No. 100-07, Ch. 8
Standards and Certification, Section 8000G (Rev. 1, 05-21-04). 
27 42 CFR  488.320(a); CMS State Operations Manual (SOM), Pub. No. 100-07, Ch. 8Standards and Certification, Section 
8000H (Rev. 1, 05-21-04). 
28 CMS, Fiscal Year (FY) 2016 to FY 2017 Nursing Home Action Plan, Ref: S&C: 16-26-NH, May 20, 2016.  Accessed at 
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/2016-2017-
Nursing-Home-Action-Plan.pdf on June 1, 2021. 
29 CMS, FY 2018 State Performance Standards System Guidance, Admin Info: 18-02-ALL, October 17, 2017. 
30 CMS SOM, Pub. No. 100-07, Ch. 8Standards and Certification, Section 8000F (Rev. 1, 05-21-04); CMS response to OIG 
informational questions on August 30, 2019; and CMS, FY 2018 State Performance Standards System Guidance, Admin Info: 
18-02-ALL, October 17, 2017.   
31 CMS, FY 2016 to FY 2017 Nursing Home Action Plan, May 2016, page 11.  Accessed at 
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-
Cert-Letter-16-26.pdf on August 20, 2019. 
32 CMS, FY 2018 State Performance Standards System Guidance, Admin Info: 18-02-ALL, October 17, 2017. 
33 CMS SOM, Pub. No. 100-07, Ch. 7Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities, 
Section 7207.2 (Rev. 185, 11-16-18). 
34 CMS, FY 2018 State Performance Standards System Guidance, Admin Info: 18-02-ALL, October 17, 2017. 
35 The public SPSS results aggregated one of these 12 performance measures with other facility types and we used data 
collected from CMS to identify State performance at nursing homes for this performance measure.   
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Endnotes | 36   
 
36 CMS, FY 2018 State Performance Standards System Guidance, Admin Info: 18-02-ALL, October 17, 2017; FY 2015 State 
Performance Standards Guidance; FY 2016 State Performance Standards Guidance; FY 2017 State Performance Standards 
Guidance. 
37 CMS, FY 2020 State Performance Standards System Guidance, Admin Info: 20-02-ALL, October 17, 2019. 
38 CMS, Trump Administration Strengthens Oversight of Nursing Home Inspections To Keep Patients and Residents Safe, 
October 17, 2019.  Accessed at https://www.cms.gov/newsroom/press-releases/trump-administration-strengthens-oversight-
nursing-home-inspections-keep-patients-and-residents-safe on June 1, 2021. 
39 CMS SOM, Pub. No. 100-07, Ch. 8Standards and Certification, Section 8000B (Rev. 1, 05-21-04).  42 CFR  488.320 also 
outlines various sanctions that CMS can impose on States for inadequate survey performance. 
40 CMS SOM, Pub. No. 100-07, Ch. 8Standards and Certification, Section 8000G (Rev. 1, 05-21-04). 
41 CMS, FY 2018 State Performance Standards System Guidance, Admin Info: 20-02-ALL, October 17, 2017; FY 2015 State 
Performance Standards Guidance, FY 2016 State Performance Standards Guidance, and FY 2017 State Performance 
Standards Guidance. 
42 One of the suspended performance measures was for not meeting the statutory timeframe to survey every nursing home in 
the State at least every 15 months and have a Statewide average interval not greater than 12 months between standard 
surveys of all nursing homes.  The other suspended performance measure was for not initiating enough high-priority 
complaint surveys within 10 days of the allegation.  For more information see: CMS, FY 2018 State Performance Standards 
System Guidance, Admin Info: 20-02-ALL, October 17, 2017. 
43 CMS SOM, Pub. No. 100-07, Ch. 8Standards and Certification, Section 8000B (Rev. 1, 05-21-04). 
44 CMS SOM, Pub. No. 100-07, Ch. 8Standards and Certification, Sections 8000G and 8000 H (Rev. 1, 05-21-04); CMS, 
Corrective Action Plan Monitoring Response; CMS HQ and Regional Office Interview Transcripts.  
45 CMS, Final Fiscal Year (FY) 2015 State Medicare Allocations for Survey & Certification, Admin Info: 15-26-ALL, March 27, 
2015; Final Fiscal Year (FY) 2016 State Medicare Allocations for Survey & Certification, Admin Info: 16-23-ALL, April 1, 2016; 
Final Fiscal Year (FY) 2017 State Medicare Allocations for Survey & Certification, Admin Info: 17-17-ALL, June 16, 2017; Final 
Fiscal Year (FY) 2018 State Medicare Allocations for Survey & Certification, Admin Info: 18-12-ALL, June 8, 2018. 
46 CMS, FY 2010 Online Performance Appendix, 2011.  https://www.cms.gov/About-CMS/Agency-
Information/PerformanceBudget/downloads/cmsopafy2011.pdf on February 1, 2021.  
47 OIGs State audit reports for Arizona (A-09-16-02013), Florida (A-04-17-08052), Kansas (A-07-17-03218), Missouri (A-07-
1603217), Nebraska (A-07-17-03224), New York (A-02-15-01024), North Carolina (A-04-17-02500), Oregon (A-09-16-02007), 
and Washington (A-09-13-02039). 
48 OIG, Nebraska Did Not Always Verify Correction of Deficiencies Identified During Surveys of Nursing Homes Participating in 
Medicare and Medicaid, A-07-17-03224.  Accessed at https://oig.hhs.gov/oas/reports/region7/71703224.asp on August 20, 
2019. 
49 OIG, CMS Guidance to State Survey Agencies on Verifying Correction of Deficiencies Needs To Be Improved To Help Ensure the 
Health and Safety of Nursing Home Residents, A-09-18-02000, February 2019.  Accessed at 
https://oig.hhs.gov/oas/reports/region9/91802000.pdf on March 5, 2019. 
50 GAO, Management Report: CMS Needs To Address Gaps in Federal Oversight of Nursing Home Abuse Investigations That 
Persisted in Oregon for at Least 15 Years, GAO-19-313R, April 2019.  Accessed at: https://www.gao.gov/assets/700/698539.pdf 
on August 20, 2019.  
51 OIG, Incidents of Potential Abuse and Neglect at Skilled Nursing Facilities Were Not Always Reported and Investigated, A-01-
16-00509, June 2019.  Accessed at https://oig.hhs.gov/oas/reports/region1/11600509.pdf on July 8, 2019. 
52 Ibid. 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Endnotes | 37   
 
53 OIG, States Continued To Fall Short in Meeting Required Timeframes for Investigating Nursing Home Complaints: 2016-2018, 
OEI-01-19-00421, September 2020.  Accessed at https://oig.hhs.gov/oei/reports/OEI-01-19-00421.pdf on December 5, 2020. 
54 OIG, A Few States Fell Short in Timely Investigation of the Most Serious Nursing Home Complaints: 20112015, OEI-01-16- 
00330, September 2017.  Accessed at https://oig.hhs.gov/oei/reports/oei-01-16-00330.pdf on March 5, 2019. 
55 OIG, States Continued To Fall Short in Meeting Required Timeframes for Investigating Nursing Home Complaints: 20162018, 
OEI-01-19-00421, September 2020.  Accessed at https://oig.hhs.gov/oei/reports/OEI-01-19-00421.pdf on December 5, 2020. 
56 OIG, Onsite Surveys of Nursing Homes During the COVID-19 Pandemic: March 23-May 30, 2020, OEI-01-20-00430, December 
2020.  Accessed at https://oig.hhs.gov/oei/reports/OEI-01-20-00430.pdf on January 7, 2020. 
57 CMS suspended or placed on hold 4 of the 12 SPSS performance measures that were exclusive to nursing homes during the 
study period (one was suspended for 2 years).  Consequently, the number of performance measures assessed over the 4-year 
period was 43 as opposed to 48. 
58 Sections 1819(g)(2)(A)(iii) and 1919(g)(2)(A)(iii) of the Social Security Act; 42 CFR  488.308 and 488.330.   
59 OIG analysis of CMS States Corrective Action Plans from FYs 20152018. 
60 This analysis is based on 386 missed performance measures.  States missed an additional 20 but they were excluded from 
the analysis because CMS did not require the State to submit a corrective action plan.  
61 CMS response to OIG informational questions on August 30, 2019. 
62 CMS, FY 2018 State Performance Standards System Guidance, Admin Info: 18-02-ALL, October 17, 2017.  Accessed at 
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Admin-Info-
Letter-18-02.pdf on June 1, 2021. 
63 This analysis includes non-delivery deductions for only 3 of the 4 years of our study period.  CMS makes non-delivery 
deductions on the basis of State performance in the prior year and we did not collect information on non-delivery deductions 
imposed in FY 2019, which is associated with State survey performance in FY 2018.  However, CMS indicated in email 
correspondence that it imposed non-delivery deductions on only a few States in FY 2019, while 19 States failed the 15-month 
requirement in the corresponding FY 2018 time period. 
64 Sections 1819(g)(2)(A)(iii) and 1919(g)(2)(A)(iii) of the Social Security Act; 42 CFR  488.308(a). 
65 CMS also imposes non-delivery deductions when States fail to meet survey timeliness standards at other facilities (e.g., home 
health agencies) and aggregates these deductions at States each fiscal year.  We cannot determine with certainty whether non-
delivery deductions were exclusively for State performance in conducting nursing home surveys versus surveys of nursing 
homes and other types of facilities combined. 
66 CMS awarded $5.5 million in one-time adjustments to all States; $3 million of these one-time adjustments went to States 
during years in which they received a non-delivery deduction.  
67 CMS, Final Fiscal Year (FY) 2017 State Medicare Allocations for Survey & Certification, Admin Info: 17-17-ALL, 
June 16, 2017. 
68 We did not round the percentage of offsets for one-time adjustments.  Total one-time adjustments for FY 2017 were 
$1,164,600 and non-delivery deductions were $1,249,600 (93 percent). 
69 Under 42 CFR  488.320(d)(5), for all survey inadequacies in Medicare facilities, CMS may initiate action to terminate the 1864 
agreement with the State, either in whole or in part. 
70 CMS suspended or placed on hold 4 of the 12 SPSS measures during the study period (one was suspended for 2 years); 
therefore, the total number SPSS measures that were exclusive to nursing homes during the 4 years was 43 instead of 48. 
71 OIG, Onsite Surveys of Nursing Homes During the COVID-19 Pandemic: March 23May 30, 2020, OEI-01-20-00430, December 
2020.  Accessed at https://oig.hhs.gov/oei/reports/OEI-01-20-00430.pdf on April 28, 2021. 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Endnotes | 38   
 
72 OIG, States Continued To Fall Short in Meeting Required Timeframes for Investigating Nursing Home Complaints:  
20162018.  Accessed at https://oig.hhs.gov/oei/reports/OEI-01-19-00421.asp on December 8, 2021. 
73 OIG, States Backlogs of Standard Surveys of Nursing Homes Grew Substantially During the COVID-19 Pandemic.  Accessed at 
https://oig.hhs.gov/oei/reports/OEI-01-20-00431.pdf on December 8, 2021. 
74 CMS, Release of Fiscal Year (FY) 2017 State Performance Standards System (SPSS) Results, June 8, 2018.  Accessed at 
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Admin-Info-
Letter-18-13.pdf on November 11, 2020. 
75 CMS, Release of Fiscal Year (FY) 2018 State Performance Standards System (SPSS) Results, October 17, 2019.  Accessed at 
https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/AdminInfo-20-
01-ALL.pdf on November 11, 2020. 
76 CMS SOM, Pub. No. 100-07, Ch. 8Standards and Certification (Rev. 1, 05-21-04). 
 
CMS Should Take Further Action To Address States With Poor Performance in Conducting Nursing Home Surveys  
OEI-06-19-00460  Endnotes | 39