Department of Health and Human Services


OFFICE OF 

INSPECTOR GENERAL 

NURSING HOME 


COMPLAINT INVESTIGATIONS


Daniel R. Levinson


Inspector General 


July 2006


OEI-01-04-00340

Office of Inspector General 
 http://oig.hhs.gov 

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: 

Office of Audit Services 

The Office of Audit Services (OAS) provides all 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 assessments help reduce waste, 

abuse, and mismanagement and promote economy and efficiency throughout HHS. 

Office of Evaluation and Inspections 

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. Specifically, these evaluations focus on preventing fraud, waste, or 

abuse and promoting economy, efficiency, and effectiveness in departmental programs. 

To promote impact, the reports also present practical recommendations for improving 

program operations. 

Office of Investigations 

The Office of Investigations (OI) conducts criminal, civil, and administrative 

investigations of allegations of wrongdoing in HHS programs or to HHS beneficiaries 

and of unjust enrichment by providers. The investigative efforts of OI lead to criminal 

convictions, administrative sanctions, or civil monetary penalties. 

Office of Counsel to the Inspector General 

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 in OIG's internal operations. OCIG imposes program exclusions and civil 

monetary penalties on health care providers and litigates those actions within HHS. 

OCIG also represents OIG in the global settlement of cases arising under the Civil False 

Claims Act, develops and monitors corporate integrity agreements, develops compliance 

program guidances, renders advisory opinions on OIG sanctions to the health care 

community, and issues fraud alerts and other industry guidance. 
Δ EXECUTIVE SUMMAR Y 

OBJECTIVES 

(1) To assess whether State agencies investigate nursing home 

complaints in accordance with program requirements. 

(2) To determine the extent to which the Centers for Medicare & 

Medicaid Services (CMS) monitors State agency performance of nursing 

home complaint investigations. 

BACKGROUND 

The nursing home complaint process is the front-line response system 

for addressing problems raised by residents, their families, and nursing 

home staff. However, in recent years various Government reports have 

documented vulnerabilities in nursing home complaint investigations. 

CMS, in conjunction with the State agencies, oversees Medicare- and 

Medicaid-funded nursing homes to ensure that they meet Federal 

standards. State survey agencies investigate nursing home complaints 

on behalf of CMS. CMS’s State Operations Manual (SOM), which is 

binding on Medicare-certified and Medicare-Medicaid dually certified 

nursing homes, provides State agencies with procedural guidelines for 

nursing home complaint investigations. These guidelines include a 

detailed protocol for the complaint investigation process, including 

directions on complaint intake, triage and prioritization, and followup. 

CMS annually evaluates each State agency’s nursing home complaint 

investigation process according to criteria set forth in the State 

Performance Standards that address complaint prioritization, 

investigation timeframes, and other procedural requirements. 

Beginning in 2004, CMS required all State agencies to enter all 

complaint investigation information into the ASPEN 

Complaints/Incidents Tracking System (ACTS). CMS uses the ACTS to 

evaluate complaint investigations nationwide. 

This report draws on various data from all 50 States and the District of 

Columbia. We analyzed calendar year 2004 ACTS data, State agencies’ 

written policies, data from a file review of selected complaints, State 

agency survey data, and CMS regional office interviews to evaluate 

State agency complaint investigation performance and CMS’s oversight 

of that performance. Pennsylvania and Washington had waivers 

exempting them from using ACTS; therefore, we collected their data 

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EXE CUTIVE S U MMAR Y 

separately. For these two States, we were unable to distinguish which 

nursing homes were certified only for Medicaid. 

FINDINGS 

State agencies did not investigate some of the most serious nursing 

home complaints within the SOM-required timeframes. In calendar 

year 2004, State agencies did not investigate 7 percent of complaints 

alleging immediate jeopardy, the most serious complaint category, in 

the required 2-day timeframe. Furthermore, State agencies did not 

investigate 27 percent of complaints alleging actual harm (high), the 

second most serious complaint category, within the required 10-day 

timeframe. CMS regional offices and State agencies report that staff 

shortages and insufficient training limit State agencies’ ability to 

investigate complaints within the 10-day required timeframe. 

While the ACTS shows potential for managing complaints, State 

agencies have not taken full advantage of this system. State 

agencies’ use of their own data systems in addition to the ACTS, 

technical problems with the ACTS, and lack of training have hindered 

its use as a complaint management tool. 

Most State agencies’ written policies and procedures generally 

incorporate the SOM; however, those policies and procedures do 

not incorporate all of the SOM’s guidelines. Several of the 42 State 

agencies’ policies and procedures we reviewed do not incorporate 

guidelines pertaining to intake, triage and prioritization, and followup. 

For example, only 19 State agencies’ policies and procedures incorporate 

the SOM requirement that agencies prioritize all nonimmediate 

jeopardy complaints within 2 days. 

In a five-State file review, State agencies followed protocols for 

complaint intake and triage; however, many follow-up letters to 

complainants lacked meaningful information. Although 86 and 

92 percent of the complaint files included letters to the nursing homes 

and complainants, respectively, letters to complainants often lacked 

comprehensive information about the complaints such as acknowledging 

the complainant’s concern and summarizing the investigation methods. 

CMS oversight of nursing home complaint investigations is limited. 

We identified four limitations to CMS oversight of nursing home 

complaint investigations. First, the State Performance Standard for 

complaints alleging actual harm (high) measures whether State 

agencies investigate all of these complaints within an average of 

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EXE CUTIVE S U MMAR Y 

10 working days, with all complaint investigations completed within 

20 working days. This standard is more lenient than the SOM’s 10-day 

investigation timeframe for these complaints. Second, CMS conducts 

few Federal Oversight and Support Surveys (FOSS). The FOSS allows 

CMS’s regional offices an opportunity to observe a State agency’s 

complaint investigation process. However, the SOM states that State 

survey agencies should provide CMS with at least 2 weeks’ advance 

notice, thus limiting the use of the FOSS for the most serious nursing 

home complaints. Third, CMS regional offices do not usually follow up 

on State Performance Standard failures until a year after the failure 

occurs. Finally, CMS regional offices lack sufficient expertise in the 

ACTS to use it for oversight or to help State agencies use it. 

RECOMMENDATIONS 

Our review found that: (1) many State agencies did not meet 

investigation timeframes for serious complaints, (2) State agencies do 

not incorporate some CMS guidelines for complaint investigations, 

(3) oversight by CMS regional offices is limited, and (4) State agencies 

are not fully utilizing the ACTS despite its potential for complaint 

management. To address these problems, we recommend that CMS: 

Strengthen the oversight of nursing home complaint investigations by: 

Requiring State agencies to meet the 10-day timeframe for 

investigating complaints alleging actual harm (high). CMS uses the 

State Performance Standards to hold State agencies accountable for 

the timeliness of their complaint investigations, yet the performance 

standard for complaints alleging actual harm (high) is more lenient 

than the 10-day standard required by the SOM. CMS should make 

the State Performance Standard timeframe consistent with the 

SOM. This would strengthen the State Performance Standards’ 

emphasis on complaints alleging actual harm (high) in nursing 

homes by requiring State agencies to investigate 100 percent of 

these complaints within 10 working days. 

Conducting additional followup to the State Performance Standard 

Reviews. Many CMS regional offices reported that they generally do 

not follow up on State Performance Standard failures until the next 

performance review, a year later. CMS regional offices should 

increase oversight of the State Performance Standards, which 

include the timely investigation of complaints alleging both 

immediate jeopardy and actual harm (high) and the proper 

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EXE C U T I V E SU M M A R Y 

prioritization and investigation of complaints. This could be 

accomplished by following up throughout the year, either through 

onsite visits or regular checks of ACTS data. 

Eliminating the 2-week advance notice for the FOSS required in the 

SOM to allow regional offices the option of overseeing complaint 

investigations for the most serious nursing home complaints. The 

FOSS provides CMS regional offices with a valuable oversight tool 

for nursing home complaint investigations. Pursuant to the SOM, 

State survey agencies should provide CMS with at least 2 weeks’ 

notice of all scheduled surveys. Because of this provision, it is 

unlikely that CMS can conduct the FOSS for complaints alleging 

immediate jeopardy and actual harm (high) because of their 

respective 2- and 10-day investigation timeframes. CMS should 

eliminate this advance notice requirement to allow its regional 

offices to more fully oversee State agencies’ investigations of the 

most severe complaints. 

Offer additional ACTS training to its regional offices, as well as to State 

agencies. The ACTS has the potential to improve complaint management 

and oversight at the State agencies and CMS regional offices. However, 

both groups reported insufficient ACTS training to use the system to its 

full potential. CMS should offer the State agencies further training 

targeted to complaint management. In addition, CMS should continue to 

train its regional office staff on the ACTS functions specifically related to 

overseeing State agencies. 

To help minimize the time State agencies spend manually entering 

complaint information into both ACTS and State-specific complaint 

tracking systems, CMS should provide specific training regarding how 

State agencies can use ACTS features designed to download information 

into a State system or capture State-required information. 

AGENCY COMMENTS AND OFFICE OF INSPECTOR GENERAL 

RESPONSE 

In its comments on the draft report, CMS concurred with three of our 

four recommendations. The agency concurred with our recommendation 

to strengthen the oversight of nursing home complaint investigations. 

CMS also concurred with our recommendations to conduct meaningful 

followup to the State Performance Standards and to offer additional 

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EXE CUTIVE S U MMAR Y 

training to CMS regional offices and State agencies. CMS outlined 

specific steps it will take to address each of these recommendations. 

CMS did not concur with our recommendation to eliminate the 2-week 

advance notice for the FOSS set forth in the SOM to allow regional 

offices the option of overseeing complaint investigations for the most 

serious nursing home complaints. CMS does not consider this advance 

notice to be an important barrier to conducting a FOSS survey and 

indicated it could not assume the added administrative costs and 

challenges under the current resource constraints. CMS also notes that 

regional offices have the authority to conduct onsite visits at nursing 

homes at any time and for any reason. 

With respect to our third recommendation, we remain concerned that 

the 2-week advance notice hinders CMS’s ability to conduct FOSS for 

complaints alleging immediate jeopardy or actual harm (high). The 

2-week advance notice requirement limits the effectiveness of CMS 

oversight of State agencies’ investigations of nursing homes. We 

encourage CMS to develop a policy that balances the resource 

constraints and the logistical challenge of scheduling surveys in a tight 

timeframe with the need for CMS to monitor State agency 

investigations of the most serious nursing home complaints. 

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Δ T ABLE OF CONTENTS 

EXECUTIVE SUMMARY ..................................... i

INTR O D U C T I ON ........................................... 1

FINDI NGS ................................................. 8

State agencies did not investigate some complaints timely ...... 8

ACTS implementation remains limited ..................... 11

State agencies’ policies do not address all SOM guidelines...... 12

In five-State file review, follow-up letters lack information ..... 13

CMS oversight is limited ................................ 14

RECOM M E NDATI O NS ..................................... 17

Agency Comments...................................... 18

Office of Inspector General Response....................... 19

ENDN OTE S ............................................... 21

APPENDIXES ............................................. 24

A: Methodology........................................ 24

B: 2004 State ACTS Data ............................... 28

C: Agency Comments ................................... 29

ACKN O W LEDGMENTS .................................... 34
Δ INTRODU C TION 

OBJECTIVES 

(1) To assess whether State agencies investigate nursing home 

complaints in accordance with program requirements. 

(2) To determine the extent to which the Centers for Medicare & 

Medicaid Services (CMS) monitors State agency performance of nursing 

home complaint investigations. 

BACKGROUND 

The nursing home complaint process is the front-line response system to 

address problems and concerns raised by residents, their families, and 

nursing home staff. However, recent studies have shown that 

weaknesses exist in survey and complaint investigation activities 

performed by CMS and the State survey agencies (State agencies) that 

oversee nursing homes.1 

Nursing Home Oversight 

CMS, in conjunction with the State agencies, oversees nursing homes to 

ensure that they meet Federal standards. The State agencies, among 

other functions, conduct certification surveys on behalf of CMS. State 

agencies must conduct certification surveys, which evaluate the quality 

of care nursing homes provide, on average every 12 months but no less 

frequently than every 15 months.2 In addition to certification surveys, 

State agencies conduct complaint investigations. While complaint 

investigations primarily serve as a response system for health and 

safety concerns, they also allow State agencies to evaluate the quality of 

care the nursing homes provide between certification surveys. 

Complaint Investigations 

Sections 1819(g)(4)(a) and 1819(g)(5)(a) of the Social Security Act 

require each State to maintain procedures and adequate staff to 

investigate and report on the nursing home complaints they receive. 

CMS’s State Operations Manual (SOM) outlines the process that State 

agencies must follow when managing complaint investigations.3 As part 

of the agreements with CMS under which State survey agencies 

operate, SOM requirements are contractually binding on 

Medicare-certified and Medicare-Medicaid dually certified nursing 

homes.4 In November 2003, CMS issued a program memorandum to 

provide State agencies with additional direction and guidelines for 

nursing home complaint management.5 This memorandum, which CMS 

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INTROD UCT ION 

has since incorporated into the SOM, provides a detailed protocol for 

State agencies to follow throughout the complaint investigation process, 

including guidelines for complaint intake, triage and prioritization, and 

followup.6 

Intake. The SOM instructs State agencies to collect comprehensive 

information from complainants. This information includes, but is not 

limited to, information about the complainant, the nursing home, the 

individuals involved and affected, a narrative of the allegation, how and 

why the complainant believes the problem leading to the allegation 

occurred, and the complainant’s expectation for resolution.7 The SOM 

also directs State agencies to offer information to complainants during 

intake. This information includes, at a minimum, the State agency’s 

policies and procedures, the course of action the State agency will take 

and the anticipated timeframes, relevant referral information, and a 

contact name and phone number for followup by the complainant.8 

Triage and prioritization. The SOM requires that a qualified professional, 

who has knowledge of current clinical standards and Federal 

requirements, prioritize each complaint. Complaints alleging 

immediate jeopardy must be prioritized and investigated within 

2 working days of receipt, while all nonimmediate jeopardy complaints 

must be prioritized within 2 working days of receipt. The priority 

category that the State agency assigns to a complaint is critical because 

it determines the action and timing of the investigation. The priority 

categories are: 

• Immediate jeopardy: The SOM defines immediate jeopardy, the most 

serious allegation category, as “a situation in which the provider’s 

noncompliance with one or more requirements of participation has 

caused, or is likely to cause, serious injury, harm, impairment, or 

death to a resident.”9 If the State agency determines that 

immediate jeopardy may be present and ongoing, the SOM requires 

the agency to investigate these complaints onsite within 2 working 

days of receipt. 

• Actual harm (high): The State agency assigns the highest level of 

actual harm, which is the second most serious allegation category, 

when “a provider’s alleged noncompliance with one or more 

requirements or conditions may have caused harm that negatively 

impacts the individual’s mental, physical, and/or psychosocial status 

and is of such consequence to the person’s well being that a rapid 

response by the State agency is indicated.”10 The SOM directs State 

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I N T R ODUC T I O N 

agencies to investigate complaints alleging actual harm (high) onsite 

within 10 working days of complaint receipt. 

• All others: For complaints less serious than immediate jeopardy and 

actual harm (high), the State agency decides, based on the intake 

information, whether to investigate onsite, perform a desk review of 

the complaint, or refer the complaint to a more appropriate agency. 

Followup. After investigating the allegation, the State agency must 

provide the complainant and the nursing home with a written report of 

the investigation findings. The SOM directs State agencies to draw 

upon the following information in these reports: acknowledgment of the 

complainant’s concerns, the State agency’s authority to investigate 

complaints, a summary of the investigation methods, an explanation of 

the decisionmaking process, a summary of the State agency’s findings, 

any follow-up action to be taken, and referral of information to other 

agencies, when appropriate.11 

CMS Oversight of State Agency Complaint Investigations 

In October 2000, CMS began the State Performance Standard Reviews, 

which establish performance standards for State agencies.12 These 

annual reviews serve as CMS’s primary oversight mechanism for State 

agencies. The 2004 performance standard for complaint investigations 

includes the following three conditions (referred to as emphases) 

pertaining to nursing homes: 

o Prioritization of complaints—For 90 percent of randomly selected 

complaints, the CMS regional office must agree with the State 

agency’s prioritization of the complaint. 

o Investigation of complaints— 

o Immediate jeopardy: The State agency must investigate 

all immediate jeopardy complaints onsite within 

2 working days. 

o Actual harm (high): The State agency must investigate all 

complaints alleging actual harm (high) onsite in an 

average of 10 working days, with all investigations 

completed within 20 working days.13 

o Complaint investigation procedures—The State agency must follow 

CMS instructions for handling complaints for no less than 

80 percent of nursing home complaints. These instructions include 

contacting complainants with investigation results and having 

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INTROD UCT ION 

qualified surveyors complete the nursing home survey, among 

others.14 

The 2004 State Performance Standard reports show that many State 

agencies failed to meet performance standard timeframes for 

investigating nursing home complaints. Of the 50 States and the 

District of Columbia, 21 State agencies failed to meet timeframes for 

investigating complaints assigned immediate jeopardy and 37 failed to 

meet timeframes for investigating complaints assigned 

actual harm (high). 

ASPEN Complaints/Incidents Tracking System 

Effective January 1, 2004, CMS requires State agencies to enter all 

complaint investigation information into the ASPEN 

Complaints/Incidents Tracking System (ACTS).15 CMS uses the ACTS 

to evaluate complaint investigations nationwide. For each complaint, 

the ACTS contains information from the complaint intake through 

closure, including key dates, the prioritization level, overall findings, 

proposed action, and the reason the complaint was closed. The ACTS 

includes more comprehensive complaint information than the previous 

repository for nationwide complaint data, the Online Survey 

Certification and Reporting system (OSCAR). 

Federal Oversight and Support Surveys 

Federal Oversight and Support Surveys (FOSS) provide CMS with 

valuable opportunities to observe a State agency’s complaint 

investigation process in action. CMS regional offices conduct the FOSS 

for State agency nursing home surveys, including complaint 

investigations. During a FOSS, regional office surveyors accompany 

State agency surveyors and review their performance in conducting the 

survey or complaint investigation. Regional office surveyors discuss the 

State agency surveyors’ performance with them following the survey; 

identify surveyor training needs, if appropriate; and provide the State 

agency with a numerical rating of the surveyors’ performance.16 

Concerns About Nursing Home Complaints 

In recent years, various Government reports and press articles have 

documented vulnerabilities in nursing home complaint investigations. 

Some of these reports have resulted in policy modifications and 

increased oversight by CMS. 

Two 1999 Government Accountability Office (GAO) reports documented 

problems with State agency complaint management and with CMS’s 

oversight of the State agencies. In one report, GAO found that CMS 

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INTROD UCT ION 

provided minimal guidance to State agencies on prioritization and 

investigation timeframes for nonimmediate jeopardy complaints, 

resulting in varying timeframes for complaint investigations. 17 

Furthermore, GAO reported that CMS conducts very few oversight 

surveys for complaint investigations. CMS addressed some of these 

concerns by instituting the State Performance Standards and the ACTS, 

both of which provide CMS with greater oversight capabilities. CMS 

created the actual harm triage category in response to another 

1999 GAO report that found that State agencies were understating the 

seriousness of complaints and were failing to investigate serious 

complaints promptly.18 

In July 2003, a GAO official testified before the Senate Finance 

Committee that timeliness of complaint investigations by State agencies 

remained problematic and that the State Performance Standards did 

not provide CMS with enough information to foster improvement.19 

Subsequently, in November 2003, CMS released a memorandum that 

addressed GAO recommendations to provide State agencies with 

additional guidelines for complaint investigations. 

Despite these policy changes and the provision of additional guidance in 

the SOM, accounts from individual States document continued problems 

with nursing home complaint investigations. For example, an Office of 

Inspector General June 2004 report (A-04-03-07027) documented 

vulnerabilities in Alabama’s survey agency relative to physical and 

sexual abuse complaints in nursing homes. 20 The State agency did not 

investigate these complaints within established timeframes, nor did it 

appropriately track and monitor complaints. The review also found that 

the State agency did not have adequate policies and procedures for the 

intake of abuse complaints. 

Similarly, in August 2004, a series of articles in the “Providence 

Journal” highlighted a Rhode Island nursing home about which the 

State agency received multiple complaints.21 Despite numerous 

complaint investigations and a declaration of immediate jeopardy, the 

nursing home remained in operation. Ultimately, one of the home’s 

residents died of heart failure after suffering from severe pressure sores. 

In July, Rhode Island enacted the Long Term Care Reform Act of 2005 

to strengthen oversight of the State’s nursing homes.22 

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METHODOLOGY 

We based this review on 5 data sources: (1) ACTS data, (2) a file review 

of 498 complaint records from 5 States, (3) a mail survey of the State 

agencies’ directors, (4) a review of State agencies’ policies and 

procedures for complaint investigations, and (5) interviews with CMS 

regional office survey and certification staff. Appendix A contains a 

detailed description of our methodology. 

ACTS 

We analyzed ACTS data for calendar year 2004 to determine the 

percentage of complaints alleging immediate jeopardy and actual harm 

(high) in Medicare-certified nursing homes that State agencies 

investigated within the respective timeframes of 2 and 10 working days. 

We also used the ACTS to determine whether State agencies were using 

the system for required complaint data entry. Pennsylvania and 

Washington had waivers exempting them from using the ACTS; 

therefore, we collected and analyzed their complaint data separately. 

We were unable to distinguish which nursing homes in Pennsylvania 

and Washington were not Medicare-certified or Medicare-Medicaid 

dually certified; however, only 17 complaints for both States combined 

(out of a total of 3,197 immediate jeopardy and actual harm (high) 

complaints in these States) were not investigated within the 

2- and 10-day timeframes for immediate jeopardy and 

actual harm (high). 

We conducted onsite reviews of 498 nursing home complaint files in the 

State agencies of Florida, Illinois, Louisiana, Massachusetts, and 

Oklahoma to assess whether the State agencies followed SOM 

guidelines for complaint intake, triage and prioritization, and followup. 

We selected these States based on complaint volume in 2002 and 2003, 

State Performance Standard reports, and geographic considerations. 

We did not determine whether the State agency prioritized each 

complaint accurately. We calculated the time that elapsed between 

complaint receipt and investigation, assuming that the State prioritized 

the complaint correctly. 

Mail survey of State agency directors 

We surveyed State agency directors in all 50 States and the District of 

Columbia on intake, triage and prioritization, and followup of nursing 

home complaints; feedback provided by CMS pertaining to management 

of nursing home complaint investigations; and ACTS usage. We 

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received completed surveys from 50 State agencies, representing a 

response rate of 98 percent. 

Review of policies and procedures for complaint investigations 

We received nursing home complaint investigation policies and 

procedures from 42 of the 51 State agencies. We reviewed these policies 

to determine whether they followed the SOM guidelines for complaint 

intake, triage and prioritization, and followup. 

Interviews with CMS regional office staff 

We used a structured interview guide to conduct telephone interviews 

with all 10 CMS regional survey and certification branch chiefs. The 

interviews focused on information the regional offices provided to State 

agencies concerning management of complaint investigations, ACTS 

training for State agencies, and the regional offices’ complaint 

investigation oversight activities. 

We conducted this inspection in accordance with the “Quality Standards 

for Inspections” issued by the President’s Council on Integrity and 

Efficiency and the Executive Council on Integrity and Efficiency. 

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ΔF I NDING S 

 FINDINGS

State agencies did not investigate some of the 

most serious nursing home complaints within 

SOM-required timeframes 

In 2004, State agencies did not investigate 7 percent of complaints alleging 

immediate jeopardy in the required 2-day timeframe 

Nationally, State agencies did not investigate 233 of 3,467 complaints 

alleging immediate jeopardy (7 percent) within 2 working days. (See 

Table 1.) State agencies took more than 10 working days to 

investigate 155 of these complaints (4 percent). The potential for 

further harm to a nursing home’s residents makes it essential that 

State agencies promptly investigate complaints alleging immediate 

jeopardy onsite within the required 2-day timeframe. 

Table 1: Timeliness of Immediate Jeopardy Complaint Investigations 

Number of Workdays 

Number of Immediate Jeopardy 

Complaints Investigated 

Percentage of Immediate Jeopardy 

Complaints Investigated 

2 days or fewer 

3–10 days 

11–45 days 

46–365 days 

No survey 

3,234 

78 

49

76 

30 

93 

2 

1 

2 

1

 Total 3,467 100* 

*Data may not add to 100 because of rounding.

Source: Office of Inspector General Analysis of ACTS and State complaint data, 2005.

State-level analysis of the data showed that 27 State agencies did not 

investigate all of their complaints alleging immediate jeopardy within 

2 working days.23 Eight State agencies did not investigate more than 

20 percent of their complaints alleging immediate jeopardy within the 

2-day timeframe. Mississippi did not investigate 93 percent of 

complaints alleging immediate jeopardy within 2 working days. 

Mississippi also accounts for 67 of the 76 immediate jeopardy 

complaints nationwide that State agencies investigated more than 

45 days after complaint receipt. 

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F I NDING S 

In 2004, State agencies did not investigate 27 percent of complaints alleging 

actual harm (high) in the required 10-day timeframe 

In 2004, complaints alleging actual harm (high) accounted for 44 percent 

of complaints in the ACTS database. Because of their severity, the SOM 

requires State agencies to investigate complaints alleging actual harm 

(high) onsite within 10 working days of complaint receipt. The 

2004 complaint data show that, nationwide, State agencies did not 

investigate 8,398 of 30,588 complaints (27 percent) alleging actual harm 

(high) within this timeframe. (See Table 2.) As an example of a complaint 

alleging actual harm (high), one State agency assigned actual harm (high) 

when a complainant alleged that a family member’s nursing home failed to 

treat her urinary tract infection, locked her in a dark room, and then 

dropped her in the bathroom, fracturing her arm and injuring her knee. 

Even based on the weaker State Performance Standard of investigating all 

complaints within 20 working days, State agencies did not investigate all 

complaints alleging actual harm (high) timely. State agencies took more 

than 20 working days to investigate 5,437 of these complaints (18 percent). 

Table 2: Timeliness of Actual Harm (High) Complaint Investigations 

Number of Workdays 

Number of Actual Harm 

(High) Complaints 

Investigated 

Percentage of Actual Harm (High) 

Complaints Investigated* 

10 days or fewer 

11–15 days

16–20 days

21–24 days

25–45 days

46–365 days

No survey

22,190 

 1,822

 1,139

 699

 1,943

 2,422

 373

73 

6 

4 

2 

6 

8 

1

 Total 30,588 100 

*Percentages are rounded.

Source: Office of Inspector General Analysis of ACTS and State complaint data, 2005.

The 2004 data show that 46 State agencies did not investigate all of 

their complaints alleging actual harm (high) within 10 working days.24 

While 24 of these State agencies investigated more than 90 percent of 

complaints alleging actual harm (high) within 10 working days, some 

State agencies fell considerably short of the 10-day standard. Eleven 

State agencies did not investigate over 50 percent of complaints alleging 

actual harm (high) within 10 working days. For example, Maryland did 

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F I NDING S 

not investigate 66 percent of complaints alleging actual harm (high) 

within 10 working days. In addition, 24 State agencies took more than 

45 working days to investigate at least 1 complaint alleging actual harm 

(high), and 5 of these State agencies took more than 45 working days to 

investigate at least 200 of their complaints alleging actual harm (high). 

Appendix B presents 2004 data concerning timeliness of complaint 

investigations for every State agency. 

CMS regional offices and State agencies report that staff shortages and 

insufficient training hinder timely nursing home complaint investigations 

Twenty-two State agencies and 9 of the 10 CMS regional offices cited 

insufficient State agency staffing as a major barrier to timely complaint 

investigations. Seven CMS regional offices reported that State agencies 

in their regions have difficulty recruiting and retaining qualified staff. 

Nursing home complaint investigations require both clinical and 

regulatory knowledge. Staff who lack these skills may have difficulty 

completing investigations timely and appropriately. Officials at State 

agencies and CMS regional offices explained that a rise in complaint 

volume, high staff turnover, and the demands of higher-priority State 

agency tasks (such as nursing home recertification surveys) all 

contribute to insufficient complaint investigation staffing levels at the 

State agencies. 

CMS regional offices and State agencies identified two types of State 

agency training limitations that hinder timely complaint investigations. 

First, 39 State agencies reported a need for additional ACTS training to 

make the system a more useful complaint management tool. CMS 

regional offices and State agencies explained that sufficient ACTS 

training is crucial because small data errors create time-consuming 

data problems. Second, 12 State agencies reported a need for additional 

staff training on CMS complaint investigation policy, particularly 

regarding complaint prioritization.25 

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F I NDING S 

While the ACTS shows potential for managing 

complaints, State agencies have not taken full 

advantage of this system 

In addition to capturing required 

complaint data, the ACTS enables 

State agencies to manage complaint 

investigation information, schedule surveys, generate letters to 

complainants and nursing homes, and create reports related to 

complaint investigation performance. Despite these capabilities, 

21 State agencies reported operating their own complaint system in 

addition to the ACTS. State agencies that maintain separate systems 

say they do so to fulfill State licensure requirements, State regulations, 

and State reporting needs since, to date, the ACTS is unable to 

accommodate these needs. As a result, these State agencies enter the 

same complaint data into two systems: their own and the ACTS. 

Technical problems with the ACTS hinder its use as a complaint 

management tool. First, State agencies reported that using the ACTS is 

cumbersome during complaint intake. The ACTS was designed to allow 

State agency staff to enter intake information directly while the 

complainant is on the phone. Notwithstanding this design, 26 State 

agencies cited the ACTS as a barrier to collecting the necessary 

information during complaint intake; 9 of these 26 State agencies 

specifically mentioned that the ACTS is unreliable for real-time entry. 

State agencies stated that intake information must be entered in a 

certain order in the ACTS, which may not reflect the way the 

complainant gives the information. Additionally, State agencies 

mentioned that the ACTS becomes unavailable during upgrades and 

can be too slow to keep up with the complainant’s comments. To deal 

with these data entry problems, 11 State agencies reported entering 

intake data somewhere else first and then taking additional time to 

enter the data into the ACTS. 

Most State agencies received ACTS training, but many reported that it 

did not sufficiently prepare them to use the system effectively. 

Forty State agencies reported receiving ACTS training prior to 

implementation. While 33 of these State agencies rated the training’s 

content as very or somewhat useful, 24 reported that they received too 

little ACTS training. State agencies explained that the training 

occurred too long before ACTS implementation; thus, many of the 

trainees had forgotten the details of the training by the time CMS 

implemented the ACTS. The only classroom training CMS offered was 

in April 2002, which was over a year and a half prior to ACTS 

implementation. In addition, CMS upgraded the ACTS in the period 

between training and implementation, which made some of the training 

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F I NDING S 

outdated by the time of implementation. Finally, State agencies cited 

limits with the “train the trainer” approach, whereby each State agency 

sent at least two people to training who then tried to train the rest of 

the State agency staff. State agencies reported problems with this 

training method when trained persons were unable to convey the 

information to the rest of the staff or left the State agency. 

To address the need for more ACTS guidance, CMS convenes a national 

ACTS workgroup. Representatives from State agencies, CMS regional 

offices, and CMS central office participate in a monthly conference call 

to discuss updates to the system or problems they have encountered. 

CMS has also offered Internet-based training for the States and 

regional offices prior to each ACTS update. In addition, CMS contracts 

with a technical support hotline that State agencies can call for 

assistance. Of the 30 State agencies that told us they reported problems 

to the hotline, 25 found the technical support somewhat or very useful 

while 5 found it not useful. State agencies can also electronically post 

suggestions for ACTS improvement and participate in scheduled 

technical conference calls with CMS central office and regional offices. 

Most State agencies’ written policies and 

procedures generally incorporate the SOM; 

however, those policies do not incorporate all of 

the SOM’s guidelines 

State agencies’ policies and 

procedures do not incorporate 

several SOM guidelines 

pertaining to intake, triage and 

prioritization, and followup. 

While all 42 State agencies’ policies and procedures we received 

specifically listed some of the intake items addressed in the SOM, only 

5 State agencies require the collection of all the suggested intake items. 

The items most frequently absent concern information that the State 

agencies should provide to the complainant. For example, fewer than 

half of the State agencies direct intake staff to determine the 

complainant’s expectations for the complaint or to provide the 

complainant with State agency complaint policies, including timeframes 

and expected actions, or with specific contact information, all of which 

the SOM addresses. 

Most State agencies’ policies, triage categories, and timelines 

incorporate the SOM guidelines. Of the 42 State agencies for which we 

reviewed policies, almost all require that complaints alleging immediate 

jeopardy and actual harm (high) be investigated within the 

SOM-required timeframes. However, only 19 State agencies’ policies 

OE I-01-04-00 340 NURSI N G H O M E C O M P L A I NT I NVES T I G ATION S 12 
F I NDING S 

incorporate the SOM requirement that the agencies prioritize all 

nonimmediate jeopardy complaints “within two working days of receipt, 

unless there are extenuating circumstances that impede the collection of 

relevant information.”26 

While most of the State agencies’ policies direct their staff to send 

follow-up letters to complainants, many of the policies provide little or 

no detail about the required content of these letters. The SOM lists 

several pieces of information that State agencies should convey to 

complainants in follow-up letters. However, of the 42 policies we 

reviewed, only 9 require that follow-up letters to complainants include 

all of the components cited in the SOM. Conversely, seven State 

agencies’ policies did not include any of the letter components cited in 

the SOM. 

In a five-State file review, State agencies 

followed protocols for complaint intake and 

triage; however, many follow-up letters to 

complainants lacked meaningful information 

Our file review of 498 nursing 

home complaints that resulted in 

an onsite survey found that State 

agencies generally collected 

appropriate information during 

intake, employed qualified professionals to assign priorities to the 

complaints, and provided the complainant and the nursing home with a 

written report of the investigation findings. 

Although 86 and 92 percent of complaint files included letters to the 

nursing homes and complainants, respectively, letters sent to 

complainants often lacked comprehensive information about the 

complaints. The SOM lists several items to guide State agencies in the 

preparation of follow-up letters to complainants. These elements are 

important because, for most complainants, this is the only official 

feedback they receive from the State agencies. Letters to complainants 

mostly lacked references to the State agency’s decisionmaking process. 

Table 3 shows the percentage of follow-up letters to complainants that 

lack each of the letter items the SOM suggests State agencies include. 

The information contained in the letters was inconsistent both across 

and within some States. Oklahoma and Massachusetts sent 

complainants standard letters that contained all of the SOM items. In 

contrast, Florida’s follow-up letters varied based on which field office 

sent them. While some letters contained all of the elements suggested 

by the SOM, others contained just the date the State agency conducted 

the survey and whether the State agency cited deficiencies. 

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F I NDING S 

Table 3: Percentage of Follow-Up Letters in the Five States That 

Lacked Information Listed in the SOM 

Letter Items Cited by the SOM 

Letters to 

Complainant Missing 

Item 

(n=327*) 

Acknowledge the complainant's concern 

Summarize the investigation methods 

Provide the date of investigation 

Discuss the State agency's decisionmaking process 

Provide a summary of the State agency's findings

47 

50 

28 

27 

9 

*Due to nursing home self-reports and anonymous complaints, 171 of the 498 complaints do 

not include a complainant letter. 

Source: Office of Inspector General analysis of State agency nursing home complaint files, 2005. 

CMS oversight of nursing home complaint 

investigations is limited 

CMS’s State Performance Standard emphasis for nursing home complaints 

is not consistent with SOM requirements for complaints alleging actual 

harm (high) 

While the State Performance Standard emphasis for complaints alleging 

immediate jeopardy reflects the SOM requirement, its emphasis for 

complaints alleging actual harm (high) has changed since 2002 and is 

presently inconsistent with and weaker than the SOM requirement. The 

2004–2005 State Performance Standard emphasis for complaints alleging 

actual harm (high) is more lenient than both the SOM’s requirement of 

investigating complaints alleging actual harm (high) within 10 working 

days and prior State Performance Standard emphases for these 

complaints. The State Performance Standard emphasis for complaints 

alleging actual harm (high) no longer measures whether State agencies 

investigate all complaints alleging actual harm (high) within the SOM 

requirement of 10 working days. In 2002 and 2003, the emphasis for 

complaints alleging actual harm (high) measured whether State agencies 

investigated 100 percent and 95 percent of complaints alleging actual 

harm (high), respectively, within 10 working days. (See the box below.) In 

fiscal year 2004, the emphasis changed to measure whether State agencies 

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F I NDING S 

investigated all complaints alleging actual harm (high) within an average 

of 10 working days, with all complaints completed within 20 working 

days.27 

CMS’s State Performance Standard Emphases for Complaints Alleging 

Actual Harm (High), 2002–2005 

2002: The State agency triages and initiates investigation of 100 percent of the 

complaints it receives alleging or involving actual harm (high) to individuals 

consistent with CMS and State policy. 

2003: The State agency investigates 95 percent of the complaints about Medicareand Medicaid-certified facilities it receives alleging or involving actual harm (high) to 

residents consistent with CMS and State policy. 

2004: The State agency investigates all complaints about long term care Medicareand Medicaid-certified facilities it receives alleging or involving actual harm (high) to 

individuals within an average of 10 working days, with all complaints completed 

within 20 working days (long term care only). 

2005: For Medicare- and Medicaid-certified nursing homes, the State agency 

initiates an investigation for all complaints and those incidents that require a Federal 

onsite survey alleging a higher level of actual harm within an average of 10 working 

days, with all onsite investigations completed by 20 working days. For fiscal year 

2005, measuring the 20-working-day completion is in a developmental stage (nursing 

homes only). 

Source: Office of Inspector General analysis of CMS State Agency Performance Review Standards, 2005. 

Changes to the State Performance Standard emphases also limit CMS’s 

ability to track State agency performance over time. In addition, the 

weakening of this standard can mask deteriorating State agency 

performance over time. For example, a State agency that failed to meet 

this emphasis in 2002 could meet the 2004 standards while performing 

worse in 2004 than in 2002. 

CMS regional offices conduct few FOSSs 

The FOSS provides CMS regional offices with a valuable oversight tool 

for nursing home complaint investigations. However, the SOM states 

that State survey agencies should provide CMS with at least 2 weeks’ 

notice of all complaint investigations. Because this 2-week period 

exceeds the investigation timeframes for complaints alleging immediate 

jeopardy and actual harm (high), such advance scheduling hinders 

regional offices from conducting the FOSSs for the most serious nursing 

home complaints.28 

Overall, CMS regional offices conduct few FOSSs of complaint 

investigations. Nine of the ten CMS regional offices conducted FOSSs 

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F I NDING S 

for nursing home complaint investigations in 2004. However, regional 

offices reported conducting the FOSS in only half of the States in their 

region. Five regional offices reported they would like to conduct more of 

these surveys. 

Many CMS regional offices do not follow up formally on State Performance 

Standard Reviews until the subsequent performance review 

All 10 CMS regional offices require State agencies to submit a plan of 

correction when the agency fails to meet a performance standard. 

However, six regional offices do not conduct any additional followup on 

the performance reviews until the subsequent annual performance 

review, a year after the State agency fails to meet a performance 

standard. Two CMS regional offices report that although they do not go 

onsite for formal followup, they do evaluate midyear data samples from 

the State agencies and require State agencies that fail to meet 

performance standards to provide performance updates between 

performance reviews. 

Some CMS regional offices lack sufficient expertise in the ACTS to help 

State agencies or to use it for oversight 

The ACTS equips CMS to examine complaint investigations in detail 

and to assess State agency actions. However, 6 of the 10 CMS regional 

offices reported that they lacked sufficient staff with enough knowledge 

about the ACTS to provide assistance to the State agencies. 

CMS regional offices cite staffing shortages and insufficient training as 

reasons for the lack of ACTS expertise within their offices. Three regional 

offices report that ACTS training did not prepare staff to use the ACTS for 

oversight functions, such as running reports or troubleshooting State 

agencies’ data entry, because the training primarily covered data entry 

rather than complaint management. Five regional offices cite staff 

turnover and shortage for the lack of ACTS expertise within their offices. 

Four of these regions report that the only person proficient with the ACTS 

in their office is also responsible for using it to oversee other provider 

types and has insufficient time to focus on nursing home complaint 

investigations. 

OE I-01-04-00 340 NURSI N G H O M E C O M P L A I NT I NVES T I G ATION S 16 
Δ RECOMME NDA TIONS 

The nursing home complaint investigations process continues to have 

problems. Many State agencies did not meet investigation timeframes 

for the most serious complaints, State policies and file reviews indicate 

that State agencies did not incorporate some aspects of the investigation 

process suggested in the SOM, and oversight by CMS regional offices is 

limited. In addition, State agencies are not fully utilizing the ACTS 

despite its potential for complaint management. To address these 

problems, we recommend that CMS take the steps listed below. 

Strengthen the oversight of nursing home complaint investigations by: 

Requiring State agencies to meet the 10-day timeframe for investigating 

complaints alleging actual harm (high) 

CMS uses the State Performance Standard to hold State agencies 

accountable for the timeliness of their complaint investigations, yet 

the performance standard for complaints alleging actual harm (high) 

is more lenient than the 10-day standard required by the SOM. The 

2004 and 2005 State Performance Standard emphasis for complaints 

of actual harm (high) requires that State agencies initiate 

investigations for complaints alleging a higher level of actual harm 

within an average of 10 working days, with all onsite investigations 

completed by 20 working days. CMS should make the State 

Performance Standard timeframe consistent with the SOM. This 

would strengthen the State Performance Standard emphasis for 

complaints alleging actual harm (high) in nursing homes by 

measuring whether State agencies investigate 100 percent of these 

complaints within 10 working days. 

Conducting meaningful followup to the State Performance Standard 

Reviews 

Many CMS regional offices reported that they generally do not 

follow up with the State Performance Standard failures until the 

next performance review, a year later, despite the fact that the 

annual State Performance Standard is CMS’s primary oversight 

mechanism for State agencies’ nursing home complaint 

investigations. Rather than waiting until the next annual 

performance review, CMS regional offices should increase oversight 

on the State Performance Standard, which includes the timely 

investigation of complaints that allege both immediate jeopardy and 

actual harm (high) and the proper prioritization and investigation of 

complaints. This could be accomplished by following up throughout 

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R E C O MMENDA T I O N S 

the year, either through onsite visits or regular checks of the State 

agency’s ACTS data. 

Eliminating the 2-week advance notice for FOSS contained in the SOM to 

allow regional offices the option of overseeing complaint investigations 

for the most serious nursing home complaints 

The FOSS provides CMS regional offices with a valuable oversight 

tool for nursing home complaint investigations. The SOM, however, 

states that State survey agencies must provide CMS with at least 

2 weeks’ notice of all scheduled surveys. Because of this provision, it 

is unlikely that CMS can conduct the FOSS for complaints alleging 

immediate jeopardy and actual harm (high) because of the 

respective 2- and 10-day investigation timeframes. CMS should 

eliminate this advance notification to allow its regional offices to 

more fully oversee State agencies’ investigations of the most severe 

complaints. 

Offer additional ACTS training to its regional offices, as well as to State 

agencies 

The ACTS has the potential to improve complaint management and 

oversight at the State agencies and CMS regional offices. However, 

both groups reported insufficient ACTS training to fully utilize the 

system. CMS should offer the State agencies further training targeted 

to complaint management. In addition, CMS should continue to train 

its regional office staff on the ACTS functions specifically related to 

overseeing State agencies. 

To help minimize the time State agencies spend manually entering 

complaint information into both the ACTS and State-specific complaint 

tracking systems, CMS should provide specific training regarding how 

State agencies can use ACTS features designed to download information 

into a State system or capture State-required information. 

AGENCY COMMENTS 

In its comments on the draft report, CMS concurred with three of our 

four recommendations. CMS concurred with our recommendation to 

strengthen the oversight of nursing home complaint investigations by 

requiring State agencies to meet the 10-day timeframe for investigating 

complaints alleging actual harm (high). While CMS outlined specific 

steps it would take to address this recommendation, such as clarifying 

the language in the State Performance Standard for 2007, it also noted 

 OE I-01-04-00 340 NURSI N G H O M E C O M P L A I NT I NVES T I G ATION S 18 
that the increase in nursing home complaints as well as resource 

limitations affect its ability to meet these performance expectations. 

CMS concurred with our recommendation to conduct meaningful 

followup to the State Performance Standards and listed steps it is 

implementing to enhance followup. These steps include strengthening 

regional office followup, particularly in States with significant 

performance failures; holding face-to-face meetings with States at least 

twice per year, with performance as a prominent agenda item; making 

performance standard fulfillment a significant feature of CMS’s annual 

National Leadership Summit; and ensuring that ACTS produces reports 

that provide feedback to States on their performance. 

CMS also concurred with our recommendation to offer additional 

training to CMS regional offices as well as State agencies. The agency 

highlighted a pilot program that would evaluate the extent to which the 

ASPEN information system is integrated with office business practices 

and other State operations. CMS noted that while it recognizes the 

potential benefits of using ACTS to support States’ management, ACTS 

is a Federal system and was not intended to support all States’ possible 

uses. 

CMS did not concur with our recommendation to eliminate the 2-week 

advance notice for the FOSS set forth in the SOM to allow regional 

offices the option of overseeing complaint investigations for the most 

serious nursing home complaints. CMS does not consider this advance 

notice to be an important barrier to conducting a FOSS survey and 

indicated it could not assume the added administrative costs and 

challenges under the current resource constraints. CMS also notes that 

regional offices have the authority to conduct onsite visits at nursing 

homes at any time and for any reason. The full text of CMS’s comments 

is in Appendix C. 

OFFICE OF INSPECTOR GENERAL RESPONSE 

With respect to our third recommendation, we remain concerned that 

the 2-week advance notice hinders CMS’s ability to conduct FOSS for 

complaints alleging immediate jeopardy or actual harm (high). The 

2-week advance notice requirement limits the effectiveness of CMS 

oversight of State agencies’ investigations of nursing homes. We 

encourage CMS to develop a policy that balances the resource 

constraints and the logistical challenge of scheduling surveys in a tight 

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timeframe with the need for CMS to monitor State agency 

investigations of the most serious nursing home complaints. 

 OE I-01-04-00 340 NURSI N G H O M E C O M P L A I NT I NVES T I G ATION S 20 
Δ ENDNOTE S 

1 See Department of Health and Human Services (HHS), Office of 

Inspector General (OIG), Office of Audit Services, Final Report, “Survey 

of Physical and Sexual Abuse in Alabama Nursing Homes,” 

A-04-03-07027, June 2004; Government Accountability Office (GAO), 

“Nursing Homes: Prevalence of Serious Quality Problems Remains 

Unacceptably High, Despite Some Decline,” GAO/03-1016T, July 2003. 

2 42 CFR § 488.308. 

3 Centers for Medicare & Medicaid Services (CMS), “State Operations 

Manual,” Chapter 5—Complaint Procedures. 

4 We refer in this report to provisions of the State Operations Manual 

as “requirements” even though for two of the States reviewed, 

Pennsylvania and Washington, we were unable to distinguish which 

nursing homes were certified for Medicare and which were certified for 

Medicaid only. 

5 CMS, “Guidelines to Support Management of Complaints and 

Incidents and the National Implementation of the ASPEN 

Complaints/Incidents Tracking System,” S&C-04-09, November 13, 2003. 

6 In June 2005, CMS released another memorandum to State agency 

directors that offered guidance on complaint allegation intake and triage. 

The memorandum offers specific intake questions for collecting 

comprehensive information as well as criteria for making triage 

assessments. CMS based the memorandum on complaint management 

practices shared by State agencies. However, because these are not 

statutory requirements, State agencies are not required to incorporate 

the practices from the memorandum. 

7 CMS, “State Operations Manual,” Chapter 5—Complaint Procedures 

(Section 5010A). 

8 CMS, “State Operations Manual,” Chapter 5—Complaint Procedures 

(Section 5010B). 

9 CMS, “State Operations Manual,” Chapter 5—Complaint Procedures 

(Section 5030A); 42 CFR § 489.3. 

 OE I-01-04-00 340 NURSI N G H O M E C O M P L A I NT I NVES T I G ATION S 21 
10 CMS, “State Operations Manual,” Chapter 5—Complaint Procedures 

(Section 5030B). 

11 CMS, “State Operations Manual,” Chapter 5—Complaint Procedures 

(Section 5040). 

12 GAO, “Nursing Homes: Prevalence of Serious Quality Problems 

Remains Unacceptably High, Despite Some Decline,” GAO/03-1016T, 

July 2003. 

13 CMS, “FY 2004 State Performance Review Protocol Guidance,” 

October 2003. 

14 CMS, “FY 2004 State Performance Review Protocol Guidance,” 

October 2003, p. 42. 

15 To date, CMS has waived this requirement for two States 

(Pennsylvania and Washington). 

16 CMS, “State Operations Manual,” Chapter 4—Federal Oversight 

Support Survey (FOSS) Expectations and Responsibility (Section 4158). 

17 GAO, “Nursing Homes: Additional Steps Needed to Strengthen 

Enforcement of Federal Quality Standards,” HEHS-99-46, March 18, 

1999. 

18 GAO, “ Nursing Homes: Complaint Investigation Processes Often 

Inadequate to Protect Residents,” GAO-HEHS-99-80, March 22, 1999. 

19 GAO, “Nursing Homes: Prevalence of Serious Quality Problems 

Remains Unacceptably High, Despite Some Decline,” GAO/03-1016T, 

July 2003. 

20 HHS, OIG, Office of Audit Services, Final Report, “Survey of Physical 

and Sexual Abuse in Alabama Nursing Homes,” A-04-03-07027, 

June 2004. 

 OE I-01-04-00 340 NURSI N G H O M E C O M P L A I NT I NVES T I G ATION S 22 
21 The Providence Journal, “Resident #1,” August 22, 2004; “Few 

Complaints Lead to Probes of Nursing Homes,” August 23, 2004; 

“Carcieri Calls for Stricter Nursing Home Supervision,” August 25, 2004; 

“Nursing Home Death Stirs R.I. Officials to Find Fixes,” August 28, 2004. 

22 Rhode Island General Assembly, “Press Release: Long Term Care 

Reform Act of 2005 Signed Into Law,” Rhode Island, July 5, 2005. 

23 Five States (Hawaii, North Dakota, South Dakota, Virginia, and 

Washington, D.C.) had no complaints alleging immediate jeopardy in the 

2004 ASPEN Complaints/Incidents Tracking System (ACTS) data. 

Pennsylvania had a waiver and is not included in 2004 ACTS data. 

24 South Dakota had no complaints alleging actual harm in the 

2004 ACTS data. Pennsylvania had a waiver and is not included in 2004 

ACTS data. 

25 After our survey, CMS offered additional guidance to State agencies 

on complaint prioritization and intake in a memorandum released in 

June 2005. See CMS, “Promising Practices to Support the Intake of 

Nursing Home Complaints,” S&C-05-31, June 9, 2005. 

26 CMS, “State Operations Manual,” Chapter 5—Complaint Procedures 

(Section 5020). 

27 Centers for Medicare & Medicaid Services, “FY 2004 State 

Performance Review Protocol Guidance,” p. 10. 

28 CMS, “State Operations Manual,” Chapter 4—Federal Oversight 

Support Survey (FOSS) Expectations and Responsibility (Section 4158). 

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Δ APPENDIX A 

METHODOLOGY 

We based this review on 5 data sources: (1) ASPEN 

Complaints/Incidents Tracking System (ACTS) data, (2) a file review of 

498 complaint records from 5 States, (3) a mail survey of the State 

agencies’ directors, (4) a review of 42 State agencies’ policies and 

procedures, and (5) interviews with the Centers for Medicare & 

Medicaid Services (CMS) regional office survey and certification staff. 

ACTS 

We analyzed ACTS data for calendar year 2004 to determine the 

percentage of complaints alleging immediate jeopardy and actual harm 

(high) in Medicare-certified nursing homes that State agencies 

investigated within the respective 2- and 10-working day timeframes. 

We also analyzed ACTS data to determine whether State agencies were 

using ACTS for required complaint data entry. We received ACTS data 

for all State agencies from CMS on June 16, 2005. These data included 

208,690 records. We removed duplicate records and records in which 

the State agency entered a complaint receipt date after December 31, 

2004. We then collapsed records that had the same complaint intake 

identification number but multiple allegation categories down to one 

record. We also excluded 1,406 complaints because the date 

investigated was prior to the date received. The final ACTS database 

included 68,826 complaint records. These data included a total of 

35,800 immediate jeopardy and actual harm (high) complaints. 

Pennsylvania and Washington had waivers exempting them from using 

the ACTS, so we collected and analyzed their complaint data separately 

from ACTS data. Like our ACTS analysis, we included both complaints 

and incidents for calendar year 2004 for all types of nursing homes. 

Though the State Operations Manual (SOM) requirements are binding 

on Medicare-certified and Medicare-Medicaid dually certified nursing 

homes, we were unable to distinguish which nursing homes in these two 

States were certified only for Medicaid. However, only 17 complaints 

for Pennsylvania and Washington combined (out of a total of 3,197 

immediate jeopardy and actual harm (high) complaints in these States) 

were not investigated within the 2- and 10-day timeframes for 

immediate jeopardy and actual harm (high). 

We analyzed the fields in the ACTS that the SOM requires State 

agencies to enter for every complaint. We did not verify the accuracy of 

the information in the fields, but rather whether the State agency 

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APP E N D I X ~ A 

populated them. We also used SAS® to calculate whether State agencies 

met the required timeframes for complaints prioritized as immediate 

jeopardy and actual harm (high). Excluding weekend days and Federal 

holidays, we calculated the number of days from the date the State 

agency received the complaint to the date the complaint survey started. 

(We did not exclude State holidays from our analysis.) This allowed us 

to determine whether State agencies met the Federal requirements that 

all complaints alleging immediate jeopardy be investigated within 

2 working days and all complaints alleging actual harm (high) within 

10 working days. 

File review 

For our file review, we drew a sample of 500 nursing home complaints 

from a purposive sample of 5 States: Florida, Illinois, Louisiana, 

Massachusetts, and Oklahoma. From the Online Survey Certification 

and Reporting (OSCAR) system, we randomly selected 100 complaints 

from each State that were reported in calendar year 2004. We used the 

OSCAR system to select the complaints because ACTS data were not 

available to us until June 2005. We selected our sample in February 

2005 and conducted the file reviews at the State agencies in March, 

April, and May 2005. We excluded 2 complaint files that did not pertain 

to Federal requirements, resulting in a review of 498 complaint files. 

We used several criteria to select the five States. We selected States 

that had a medium or high volume of complaints in 2002 and 2003. Due 

to travel constraints, we limited the file review to States with centrally 

maintained complaint files. Additionally, we selected States with 

different levels of performance on the three State Performance 

Standards’ emphases pertaining to nursing home complaint 

investigations. Two States we chose met all three emphases in 

2002 and 2003, one did not meet any, and the other two States met only 

one emphasis in 2002 or 2003. 

We reviewed the files using a protocol we developed and entered the 

data into a Microsoft Access® database. Our protocol followed CMS’s 

SOM guidelines for complaint intake, triage and prioritization, and 

complainant and nursing home followup. We evaluated complaint files 

for completeness and conformity with SOM procedural guidelines. 

However, we did not assess whether State agency staff made 

appropriate triage assignments. While onsite at the State agencies, we 

interviewed managers, surveyors, and other relevant personnel to learn 

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APP E N D I X ~ A 

more about complaint management in each State. We analyzed data 

from the file reviews using SAS® . 

Mail survey of State agency directors 

We surveyed State agency directors in the 50 States and the District of 

Columbia on nursing home complaint investigations. Our survey 

solicited information in the following areas: complaint management, 

feedback provided by CMS pertaining to management of nursing home 

complaint investigations, and ACTS use. We also included open-ended 

sections for additional comments and to solicit further explanations for 

some closed-ended answers. Before sending the survey, we solicited 

comments from CMS central office officials and a State survey director 

about the survey’s content and clarity. We incorporated their feedback 

into the final survey. 

To ensure a high response rate, in March 2005 we sent each State 

agency director in all 50 States and the District of Columbia an 

introductory letter explaining the survey and the review. Later in the 

month, we mailed the survey. In April 2005, we sent a follow-up 

mailing to those who had not responded. In May 2005, we called the 

State agencies that had not yet replied. We received completed surveys 

from 49 State agencies and the District of Columbia for a response rate 

of 98 percent. Tennessee did not respond to the survey. 

Review of policies and procedures for complaint investigations 

In conjunction with the survey of State agency directors, we requested 

State nursing home complaint investigation policies and procedures. 

We received documents from 46 State agencies. Of these, two State 

agencies responded that they rely on the SOM for nursing home 

complaint investigations and do not maintain separate policies and 

procedures. Two additional State agencies sent only CMS documents 

and did not offer additional State-specific policies and procedures. We 

excluded these States and based our analysis on 42 State agencies’ 

documents. 

We reviewed the policies and procedures using a protocol based on 

CMS’s SOM guidelines for complaint intake, triage and prioritization, 

and followup. The review protocol includes 58 SOM guidelines 

regarding the information to be collected during intake, the 

establishment of triage categories and response timelines, and the 

information included in follow-up letters to complainants. We reviewed 

each State agency’s documents and noted whether written State agency 

policies addressed and incorporated these CMS guidelines. 

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APP E N D I X ~ A 

Interviews with CMS regional office staff 

We used a structured interview guide to conduct telephone interviews 

with the 10 CMS regional survey and certification branch chiefs. The 

interviews focused on information the regional offices provided to State 

agencies concerning management of complaint investigations, ACTS 

training for State agencies, and the regional offices’ complaint 

investigation oversight activities. Before the interviews, we solicited 

comments from the CMS central office and a CMS regional office branch 

chief about the interview guide’s content and clarity. We incorporated 

their feedback into the final interview guide. 

We conducted the interviews in June 2005. We asked the CMS regional 

offices to provide us with any documentation they had from State 

agency training activities; oversight actions; and any formal 

communications the regional office had with the State agencies, 

including feedback on State agency performance. Prior to each 

interview, we sent the interview guide to the CMS regional survey and 

certification branch chiefs and invited them to ask any regional staff 

members with expertise in the covered areas to participate in the 

interviews. At least two OIG staff participated in each interview. 

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Δ APPENDIX B

Table 4: 2004 State Agency Complaint Investigation Timeliness for Complaints Alleging 

Immediate Jeopardy and Actual Harm (High) 

State Immediate Jeopardy Complaints Actual Harm (High) Complaints 

Percentage Not 

Investigated Within 

2 Working Days 

Total Immediate 

Jeopardy Complaints 

in 2004 

Percentage Not 

Investigated Within 

10 Working Days 

Total Actual Harm (High) 

Complaints in 2004 

Alabama 0% 16 10% 289 

Alaska 0 2 17 6 

Arizona 7 29 83 587 

Arkansas 0 53 76 569 

California 5 173 27 903 

Colorado 16 37 20 224 

Connecticut 33 9 26 78 

Delaware 25 4 39 28 

Florida 7 153 3 896 

Georgia 0 30 3 933 

Hawaii N/A* 0 32 19 

Idaho 0 16 0 55 

Illinois 2 62 1 1,285 

Indiana 1 89 3 604 

Iowa 3 66 4 701 

Kansas 2 101 8 143 

Kentucky 0 41 5 463 

Louisiana 15 53 16 339 

Maine 21 14 4 196 

Maryland 33 6 66 804 

Massachusetts 25 4 1 643 

Michigan 0 98 71 965 

Minnesota 11 19 2 260 

Mississippi 93 131 98 461 

Missouri 0 168 12 2,167 

Montana 0 7 56 9 

Nebraska 0 25 3 129 

Nevada 0 10 17 547 

New Hampshire 0 5 0 14 

New Jersey 8 76 1 145 

New Mexico 33 6 81 156 

New York 4 255 24 2,725 

North Carolina 2 200 7 849 

North Dakota N/A* 0 100 1 

Ohio 1 100 6 973 

Oklahoma 2 258 56 552 

Oregon 0 14 12 217 

Pennsylvania 0** 40 0 2,095 

Rhode Island 0 1 43 7 

South Carolina 17 46 90 653 

South Dakota N/A* 0 N/A* 0 

Tennessee 6 205 4 636 

Texas 2 497 50 5,731 

Utah 0 56 0 68 

Vermont 25 8 39 75 

Virginia N/A* 0 19 138 

Washington 0** 213 1 849 

Washington D.C. N/A* 0 0 3 

West Virginia 0 6 7 134 

Wisconsin 2 62 8 224 

Wyoming 0 3 25 40 

*The State agency entered no complaints for this category into ACTS for calendar year 2004. 

**Pennsylvania and Washington had waivers from ACTS in 2004. Data for these States come from the State 

agencies' complaint systems. 

Source: Office of Inspector General analysis of 2004 ACTS data, 2005. 

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ΔAPP E N D I X ~ A 

 APPENDIX C 

Agency Comments 

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APP E N D I X ~ C 

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APP E N D I X ~ C 

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APP E N D I X ~ C 

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APP E N D I X ~ C 

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ΔAPP E N D I X ~ A ACKNOWLEDGMENTS 

This report was prepared under the direction of Joyce M. Greenleaf, 

Regional Inspector General for Evaluation and Inspections in the 

Boston regional office, and Russell W. Hereford, Deputy Regional 

Inspector General. Other principal Office of Evaluation and Inspections 

staff who contributed include: 

Danielle Fletcher, Team Leader 

Maria Maddaloni, Project Leader 

Rosemary Borck, Program Analyst 

Norman Han, Program Analyst 

Sandy Khoury, Program Specialist 

Barbara Tedesco, Mathematical Statistician 

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