Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents
Published: 2007-03-26T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: In 1998 and 1999 reports, GAO concluded that enforcement actions, known as sanctions, were ineffective in encouraging nursing homes to maintain compliance with federal quality requirements: sanctions were often rescinded before being implemented because homes had a grace period to correct deficiencies. In response, the Centers for Medicare & Medicaid Services (CMS) began requiring immediate sanctions for homes that repeatedly harmed residents. Using CMS enforcement and deficiency data, GAO (1) analyzed federal sanctions from fiscal years 2000 through 2005 against 63 homes previously reviewed and (2) assessed CMS's overall management of enforcement. The 63 homes had a history of harming residents and were located in 4 states that account for about 22 percent of homes nationwide.
section_title: What GAO Found
paragraphs: From fiscal years 2000 through 2005, the number of sanctions decreased for the 63 nursing homes GAO reviewed that had a history of serious quality problems, a decline consistent with nationwide trends. While the decline may reflect improved quality or changes to enforcement policy, it may also mask survey weaknesses that understate quality problems, an issue GAO has reported on since 1998. Although the number of sanctions decreased, the homes generally were cited for more deficiencies that caused harm to residents than other homes in their states. Almost half of the homes reviewed continued to cycle in and out of compliance; 19 did so 4 times or more. These homes temporarily corrected deficiencies and, even with sanctions, were again found out of compliance on subsequent surveys. Several weaknesses appeared to undermine the effectiveness of the sanctions implemented against the homes reviewed. First, civil money penalties (CMP), which by statute are not paid while under appeal--a process that can take years--were generally imposed at the lower end of the allowable dollar range. For example, the median per day CMP ranged from $350 to $500, significantly below the maximum of $3,000 per day. Second, CMS favored the use of sanctions that give homes more time to correct deficiencies, increasing the likelihood that the sanctions would not be implemented. Thus, more than half of the denial of payment for new admissions (DPNA) that CMS imposed were the type that give homes 3 months to correct deficiencies rather than those that only give homes up to 15 days. Third, there was no record of a sanction for about 22 percent of the homes reviewed that met CMS's criteria for immediate sanctions, a problem GAO also identified in 2003; moreover, 60 percent of DPNAs imposed as immediate sanctions were not implemented until 1 to 2 months after citation of the deficiency. Finally, involuntary termination of homes from participating in the Medicare or Medicaid programs was rare because of concerns about access to other nearby homes and resident transfer trauma; 2 of the 63 homes reviewed were involuntarily terminated because of quality problems. CMS's management of enforcement is hampered by the complexity of its immediate sanctions policy and by its fragmented and incomplete data. Its policy allows some homes with the worst compliance histories to escape immediate sanctions. For example, a home cited with a serious deficiency and that has not yet corrected an earlier serious deficiency is spared an immediate sanction. Such rules may in part explain why the 63 homes reviewed only had 69 instances of immediate sanctions over a 6-year period despite being cited 444 times for deficiencies that harmed residents. Although CMS initiated development of a new enforcement data system 6 years ago, it is fragmented and has incomplete national reporting capabilities. CMS is taking additional steps to improve nursing home enforcement, such as developing guidance to encourage more consistency in CMP amounts, but it is not clear whether and when these initiatives will address the enforcement weaknesses GAO found.

section_title: Letter
paragraphs: The nation’s 1.5 million nursing home residents are a highly vulnerable  population of elderly and disabled individuals for whom remaining at  home is no longer feasible. The federal government plays a key role in  ensuring that nursing home residents receive appropriate care by setting  quality requirements that nursing homes must meet to participate in the  Medicare and Medicaid programs and by contracting with states to  routinely inspect homes and conduct complaint investigations. Moreover,  to encourage compliance with these requirements, Congress has  authorized certain enforcement actions, known as sanctions, including  civil money penalties (CMP) or termination from participating in these  programs. With the aging of the baby boom generation, the number of  individuals needing nursing home care and the associated costs are  expected to increase dramatically. Combined Medicare and Medicaid  payments for nursing home services were about $67 billion in 2004,  including a federal share of about $46 billion.
In 1998 and 1999 reports, we identified significant weaknesses in federal  and state activities designed to detect and correct quality problems at  nursing homes. A key finding was that sanctions imposed on nursing  homes, including those that repeatedly harmed residents, often did not  take effect. Instead, the sanctions were rescinded prior to their effective  dates because homes had a grace period in which they could and often did  correct deficiencies. We referred to this phenomenon as a “yo-yo” pattern  of compliance because homes cycled in and out of compliance, harming  residents while avoiding sanctions. Overall, we concluded that the goal of  the enforcement process—to help ensure that homes maintain compliance  with federal quality requirements—was not being realized. In response to  our recommendations, the Centers for Medicare & Medicaid Services  (CMS), the federal agency that manages these two public health care  programs, took several steps, including the introduction of an immediate  sanctions policy for homes found to repeatedly harm residents and the  development of a new data system to improve management of the  enforcement process. Under CMS’s immediate sanctions policy, sanctions  may be imposed without giving homes an opportunity to correct serious  deficiencies that resulted in actual resident harm or put residents at risk of  death or serious injury. We also reported that the deterrent effect of CMPs  can be hampered by a backlog of appeals, which further delays payment of  CMPs; by statute, CMPs are not paid until appealed cases are closed.
You asked us to assess CMS’s progress in improving the enforcement  process, particularly for homes with a history of harming residents. In  response to your request, we (1) analyzed federal sanctions from fiscal  years 2000 through 2005 against 63 homes with a history of harming  residents as well as nationwide trends in nursing home sanctions for the  same time period, (2) evaluated the extent to which the homes cycled in  and out of compliance and the impact of CMS’s immediate sanctions  policy, and (3) assessed CMS’s management of enforcement activities. The  nursing homes were located in California, Michigan, Pennsylvania, and  Texas and their prior compliance and enforcement histories formed the  basis for the conclusions in our March 1999 report. These homes were  selected for that report because of their serious or sustained compliance  problems prior to 1999 and are not representative of homes in those states  or homes nationwide. The 63 homes we reviewed for this report  participated in Medicare and Medicaid for at least 6 months during fiscal  years 2000 through 2005. Table 1 shows the number of homes that  participated by fiscal year. Changes in the number of homes from year to  year are a result of homes’ closure, termination, or reinstatement of  participation. For example, the change from 61 homes in fiscal year 2000  to 59 homes in fiscal year 2001 represents the voluntary closure of   2 homes, the involuntary termination of 1, and the reinstatement of 1, for a  net decrease of 2 homes.
Our analysis relied primarily on (1) deficiency data from CMS’s On-Line  Survey, Certification, and Reporting system (OSCAR) and the CMS  Providing Data Quickly (PDQ) Web site; (2) sanctions data from its Long  Term Care Enforcement Tracking System (LTC) and ASPEN Enforcement  Manager (AEM); and (3) CMP payment information from its CMP  Tracking System (CMPTS). We also examined CMS regional office and  state enforcement case files for the nursing homes we reviewed. We  analyzed deficiency and sanctions data to identify the number and type of  sanctions implemented and their implementation rates; the extent to  which homes cycled in and out of compliance; the use of immediate  sanctions for homes that repeatedly harmed residents, including their  deterrent effect; the use of termination; and variability in state approaches  to enforcement. To identify trends, we compared deficiency and sanctions  data across two time periods: fiscal years 2000 through 2002 and fiscal  years 2003 through 2005. We focused our analysis on three types of  sanctions—CMPs, denial of payment for new admissions (DPNA), and  terminations—which accounted for about 81 percent of all sanctions from  fiscal years 2000 through 2005. Although termination was used  infrequently—less than 1 percent of all sanctions—we included it in our  analysis because it is the most severe sanction, resulting in the loss of  Medicare and Medicaid revenue. Based on our assessment of the data  from the case file review, we determined that the sanctions data were  sufficiently reliable to assess general nationwide trends in implemented  sanctions. Because we could not conduct such checks of the data in all   50 states and the District of Columbia, we did not analyze trends across  the individual states. We also reviewed CMS enforcement policy and  guidance and discussed the immediate sanctions policy and data reliability  issues with CMS and state officials. Finally, we obtained perspectives from  regional office and state officials on the sanctions used for the homes we  reviewed. Our findings on sanctions, such as implementation rates and use  of the available range of sanctions, against these homes cannot be  generalized to all homes in the 4 states or to all nursing homes nationwide.  However, we believe that the findings are illustrative of the overall  adequacy of federal and state responses to nursing homes with a history of  serious noncompliance with federal quality requirements. Appendix I  provides a more detailed description of our scope and methodology,  including steps taken to ensure the reliability of the data used in this  report. We performed our work from January 2005 through January 2007  in accordance with generally accepted government auditing standards.
subsections: section_title: Background
paragraphs: Ensuring the quality and safety of nursing home care has been a focus of  considerable congressional attention since 1998. Titles XVIII and XIX of  the Social Security Act establish minimum requirements in statute that all  nursing homes must meet to participate in the Medicare and Medicaid  programs, respectively. With the Omnibus Budget Reconciliation Act of  1987 (OBRA 87), Congress focused the requirements on the quality of care  actually provided by a home. To help ensure that homes maintained  compliance with the new requirements, OBRA 87 also established the  range of available sanctions, to include CMPs, DPNAs, and termination.
subsections: section_title: Ensuring Compliance with Federal Quality Requirements
paragraphs: CMS contracts with state survey agencies to assess whether homes meet  federal quality requirements through routine inspections, known as  standard surveys, and complaint investigations. The requirements are  intended to ensure that residents receive the care needed to protect their  health and safety, such as preventing avoidable pressure sores, weight  loss, and accidents. While a standard survey involves a comprehensive  assessment of federal quality requirements, a complaint investigation  generally focuses on a specific allegation regarding resident care or safety;  complaints can be lodged by a resident, family member, or nursing home  employee. Deficiencies identified during either standard surveys or  complaint investigations are classified in 1 of 12 categories according to  their scope (i.e., the number of residents potentially or actually affected)  and severity. An A-level deficiency is the least serious and is isolated in  scope, while an L-level deficiency is the most serious and is considered to  be widespread in the nursing home (see table 2). When state surveyors  identify and cite B-level or higher deficiencies, the home is required to  prepare a plan of correction and, depending on the severity of the  deficiency, surveyors conduct revisits to ensure that the home actually  implemented its plan and corrected the deficiencies.
Homes with deficiencies at the A, B, or C levels are considered to be in  substantial compliance with federal quality requirements, while homes  with D-level or higher deficiencies are considered noncompliant. A  noncompliance period begins when a survey finds noncompliance and  ends when the home either achieves substantial compliance by correcting  the deficiencies or when the home is terminated from Medicare and  Medicaid. Since 1998, the deficiencies cited during standard surveys have  been summarized on CMS’s Nursing Home Compare Web site, and CMS  subsequently added data on the results of complaint investigations. These  data are intended to help consumers select a nursing home that takes into  account the quality of care provided to residents.
section_title: Range of Federal Sanctions
paragraphs: CMS and the states can use a variety of federal sanctions to help  encourage compliance with quality requirements ranging from less severe  sanctions, such as indicating the specific actions needed to address a  deficiency and providing an implementation time frame, to those that can  affect a home’s revenues and provide financial incentives to return to and  maintain compliance (see table 3). Overall, two sanctions—CMPs and  DPNAs—accounted for 80 percent of federal sanctions from fiscal years  2000 through 2005.
The majority of federal sanctions implemented from fiscal years 2000  through 2005—about 54 percent—were CMPs. CMPs may be either per  day or per instance. CMS regulations specify a per day CMP range from  $50 to $10,000 for each day a home is noncompliant—from $50 to $3,000  for nonimmediate jeopardy and $3,050 to $10,000 for immediate jeopardy.  The overall amount of the fine increases the longer a home is out of  compliance. For example, a home with a per day CMP of $5,000 that is  out of compliance for 10 days would accrue a total penalty of $50,000. A  per day CMP can be assessed retroactively, starting from the first day of  noncompliance, even if that date is prior to the date of the survey that  identified the deficiency.
Per instance CMPs range from $1,000 to $10,000 per episode of  noncompliance. While multiple per instance CMPs can be imposed for  deficiencies identified during a survey, the total amount cannot exceed  $10,000. Per day and per instance CMPs cannot be imposed as a result of  the same survey, but a per day CMP can be added when a deficiency is  identified on a subsequent survey if a per instance CMP was the type of  CMP initially imposed. Unlike other sanctions, CMPs require no notice  period. However, if a home appeals the deficiency, by statute, payment of  the CMP—whether received directly from the home or withheld from the  home’s Medicare and Medicaid payments—is deferred until the appeal is  resolved.
DPNAs made up about 26 percent of federal sanctions from fiscal years  2000 through 2005. A DPNA denies a home payments for new admissions  until deficiencies are corrected. In contrast to CMPs, CMS regulations  require that homes be provided a notice period of at least 15 days for other  sanctions, including DPNAs; the notice period is shortened to 2 days in the  case of immediate jeopardy. As a result, homes can avoid DPNAs if they  are able to correct deficiencies during the notice period, which provides a  de facto grace period. Unlike CMPs, DPNAs cannot be imposed  retroactively, and payment denial is not deferred until appeals are  resolved.
Although nursing homes can be terminated involuntarily from  participation in Medicare and Medicaid, which can result in a home’s  closure, termination is used infrequently. Terminations were less than   1 percent of total sanctions from fiscal years 2000 through 2005. Four of  the seven types of sanctions described above were used less frequently  than CMPs and DPNAs—directed plan of correction, state monitoring,  directed in-service training, and temporary management—these sanctions  accounted for about 19 percent of sanctions nationwide from 2000 through  2005.
section_title: Imposition of Sanctions
paragraphs: The statute permits and, in some cases, requires that DPNAs or  termination be imposed for homes found out of compliance with federal  quality requirements. Mandatory termination and DPNA are required, as  follows:    Termination—Termination is required by regulations under the statute if  within 23 days of the end of a survey a home fails to correct immediate  jeopardy deficiencies, or within 6 months of the end of a survey the home  fails to correct nonimmediate jeopardy deficiencies.
DPNA—A DPNA is required by statute if within 3 months of the end of a  survey a home fails to correct deficiencies and return to compliance or  when a home’s last three standard surveys reveal substandard quality of  care.
The statute also authorizes CMS to impose discretionary DPNAs and  discretionary terminations in situations other than those specified above.  Federal regulations further stipulate that such discretionary sanctions may  be implemented as long as a facility is given the appropriate notice period.  By regulation, the notice period for implementing both discretionary and  mandatory DPNAs and terminations is 15 days; in cases of immediate  jeopardy, however, the notice period is 2 days.
In imposing sanctions, CMS takes into account four factors: (1) the scope  and severity of the deficiency, (2) a home’s prior compliance history,   (3) desired corrective action and long-term compliance, and (4) the  number and severity of all the home’s deficiencies. In general, the severity  of the sanction increases with the severity of the deficiency. For example,  for immediate jeopardy deficiencies (J, K, and L on CMS’s scope and  severity grid) the regulations require that either or both temporary  management or termination be imposed, and also permits use of CMPs of  from $3,050 to $10,000 per day or $1,000 to $10,000 per instance of  noncompliance. Similarly, for deficiencies at the actual harm level (G, H,  and I on the scope and severity grid) the regulations require one or a  combination of the following sanctions: temporary management, a DPNA,  a per day CMP of $50 to $3,000, or a per instance CMP of $1,000 to $10,000  per instance of noncompliance. In addition to these required sanctions,  other sanctions can be included; for example, depending on the severity of  the deficiency and a home’s compliance history, it could have a  combination of state monitoring, a DPNA, and a CMP. Finally, CMS is  required to consider the immediacy of sanctions. The statute stipulates  that sanctions should be designed to minimize the time between the  identification of violations and the final imposition of the sanctions.
section_title: State and CMS Roles in Sanctioning Homes
paragraphs: Enforcement of nursing home quality-of-care requirements is a shared  federal-state responsibility. In general, sanctions are (1) initially proposed  by the state survey agency based on a cited deficiency, (2) reviewed and  imposed by CMS regional offices, and (3) implemented—that is, put into  effect—by the same CMS regional office, usually after a required notice  period (see fig. 1). CMS regional offices typically accept state-proposed  sanctions but can modify them. The regional office notifies the home by  letter that a sanction is being imposed—that is, its intent to implement a  sanction—and the date it will be implemented. State surveyors may make  follow-up visits to the home to determine whether the deficiencies have  been corrected. The CMS regional office implements the sanctions if the  deficiencies are not corrected. Homes may appeal the cited deficiency and,  if the appeal is successful, the severity of the sanction could be reduced or  the sanction could be rescinded. Homes have several avenues of appeal,  including informal dispute resolution at the state survey agency level or a  hearing before an administrative law judge, as well as before the  Department of Health and Human Services Departmental Appeals Board.  Under CMS policy, homes automatically receive a 35 percent reduction in  the amount of a CMP if they waive their right to appeal before the  Departmental Appeals Board.
section_title: CMS Enforcement Initiatives
paragraphs: In response to our earlier recommendations, CMS undertook a number of  initiatives intended to strengthen enforcement, many of which we  reported on in 2005. For example, CMS (1) revised its revisits policy by  requiring surveyors to return to nursing homes to verify that serious  deficiencies had actually been corrected; (2) hired more staff to reduce the  backlog of appeals at the Health and Human Services Departmental  Appeals Boards, the entity that adjudicates nursing home appeals of  deficiency citations; (3) began annual assessments of state survey  activities, known as state performance reviews, which cover, among other  things, the timeliness of sanction referrals from state survey agencies to  CMS regional offices; and (4) revised its past noncompliance policy for  citing and reporting serious deficiencies that were missed by state  surveyors during earlier surveys of a home.
A key CMS enforcement initiative was the two-stage implementation of an  immediate sanctions policy. In the first stage, effective September 1998,  CMS required states to refer for immediate sanction homes found to have  a pattern of harming or exposing residents to actual harm or potential  death or serious injury (H-level or higher deficiencies on the agency’s  scope and severity grid) on successive surveys. Effective January 2000,  CMS expanded the policy, requiring referral of homes found to have  harmed one or a small number of residents (G-level deficiencies) on  successive routine surveys or intervening complaint investigations. After  expansion of the immediate sanctions policy to include G-level  deficiencies, it became known as the double G immediate sanctions  policy.
CMS also took steps to improve its ability to manage and oversee the  enforcement process. Our 1999 report described how CMS regions and  states were using their own systems to track sanctions rather than CMS’s  OSCAR database. Regional office systems ranged from manual, paper- based records to complex computer programs; none of the four states  included in our 1999 report had tracking systems compatible with OSCAR  or the regional office systems in use. Until it implemented a new  enforcement data collection system, CMS used LTC, an interim  enforcement tracking system developed and first used by its Chicago  regional office. LTC was operational in all 10 regions by January 2000.  CMS’s enforcement data collection system—AEM—replaced LTC and was  implemented 4 years later, on October 4, 2004.
Recognizing the need to focus more attention on homes that historically  provided poor care, CMS designed and launched a Special Focus Facility  program in January 1999, instructing states to select 2 homes each for  enhanced monitoring. Surveys were to be conducted at 6-month intervals  rather than annually. In September 2000, CMS reported that semiannual  surveys had been conducted at a little more than half of the original   110 facilities. In late 2004, CMS modified the program by (1) expanding its  scope to include more homes, (2) revising the selection criteria for homes,  and (3) strengthening sanctions for homes that did not improve within   18 months. In a relevant but unrelated initiative, CMS established a  voluntary program to help nursing homes improve the quality of care  provided to residents. In 2002, Medicare Quality Improvement  Organizations (QIO) began working intensively on issues such as  preventing pressure sores and pain management with 10 percent to   15 percent of nursing homes in each state. Responding to concerns that  QIOs were not working with homes that needed the most help, CMS  established a separate pilot program in 2004; QIOs worked for 12 months  with 1 to 5 nursing homes with significant quality problems in 18 states to  help them redesign their clinical practices. Unlike the Special Focus  Facility program, the participation of homes in the pilot was voluntary. To  distinguish it from the Special Focus Facility program, the pilot was  known as the Collaborative Focus Facility program.
section_title: Number of Sanctions Has Decreased
paragraphs: Among the homes we reviewed in four states, the number of implemented  sanctions and serious deficiencies declined across two time periods— fiscal years 2000 through 2002 and fiscal years 2003 through 2005. Federal  data show similar declines for homes nationwide, a trend consistent with  the decline in the proportion of homes cited for serious deficiencies that  generally result in sanctions. Despite the decline in the number of serious  deficiencies, the homes we reviewed generally were cited for more  deficiencies that caused harm to residents than other homes in the four  states. While the numbers of implemented CMPs and DPNAs at the homes  we reviewed declined across the two time periods, the amount of CMPs  paid increased. Not all imposed sanctions for these homes were  implemented, however, which may reduce the deterrent effect of  sanctions; in fact, we found that the implementation rate of certain  sanctions, such as DPNAs, decreased. The deterrent effect of sanctions for  the homes was further eroded because CMS generally imposed CMPs on  the lower end of the allowable dollar range and did not exercise its  authority to use discretionary DPNAs and terminations, allowing the  homes more opportunities to escape sanctions prior to implementation.
subsections: section_title: Sanctions Have Declined Nationwide
paragraphs: Among all nursing homes nationwide, sanctions declined across the two  time periods—fiscal years 2000 through 2002 and fiscal years 2003 through  2005. Implemented terminations declined the most across the two time  periods (about 41 percent) and CMPs declined the least (about   12 percent), while the number of DPNAs declined by about 31 percent. In  the same time periods, the average number of serious deficiencies per  home declined by about 33 percent nationwide, from about 0.8 to about  0.5. These downward trends are also consistent with the nationwide  decline in the proportion of homes with serious deficiencies—from about  28 percent in fiscal year 2000 to about 17 percent in fiscal year 2005 (see  app. II). While the reported decline in serious deficiencies and the  proportion of homes cited for such deficiencies may be due to improved  quality, our earlier reports noted similar declines that masked   (1) understatement of serious quality problems, and (2) inconsistency in  how states conduct surveys. For example, our current analysis found that  the proportion of homes cited for serious deficiencies ranged from a low  of about 4 percent in Florida to a high of about 44 percent in Connecticut  during fiscal year 2005. Across the four states we reviewed, the  proportion of homes with serious deficiencies in fiscal year 2005 ranged  from 8 percent in California to 23 percent in Michigan. As we previously  reported, such disparities are more likely to reflect inconsistency in how  states conduct surveys rather than actual differences in the quality of care  provided by homes. In addition, in commenting on a draft of this report,  CMS noted concerns about whether the immediate sanctions policy has  had a negative effect on state citations of serious deficiencies.
section_title: Decline in Sanctions and Deficiencies for the Homes Reviewed Is Consistent with Nationwide Trends
paragraphs: The number of implemented sanctions at the homes we reviewed as well  as the number of serious deficiencies cited in these homes declined across  two time periods—fiscal years 2000 through 2002 and fiscal years 2003  through 2005—consistent with nationwide trends.
Deficiency trends. The average number of serious deficiencies per home  we reviewed decreased from about 1.8 in fiscal years 2000 through 2002 to  about 0.7 in fiscal years 2003 through 2005, about a 61 percent decline; this  decline was consistent with the national trend. During both time periods,  however, the homes we reviewed generally performed more poorly than  other homes in their states, having, on average, more G-level or higher  deficiencies and more double Gs. For example, the Texas homes we  reviewed had on average 1.3 times as many G-level or higher deficiencies  as all other homes in the state and the California homes we reviewed had  on average 3 times as many as all other California nursing homes.
CMP trends. Due in part to the closure of some poorly performing homes  and the citation of fewer serious deficiencies, the homes we reviewed had  fewer CMPs in fiscal years 2003 through 2005 than in the prior 3 fiscal  years, but the amount paid was higher (see table 4). Among the homes, the  number of implemented CMPs declined by about 42 percent from the first  to the second time period. Although the number of CMPs among the  homes we reviewed decreased, the amount of CMPs paid in Michigan  more than doubled between the two time periods, accounting for much of  the increase in the amount of CMPs paid across the two time periods (see  app. III). States’ preferences for either state or federal CMPs may in part  affect their use. In Michigan, state officials are more likely to use federal  CMPs and implement them in greater amounts than other states we  reviewed. In contrast, the homes we reviewed in Pennsylvania had only  one implemented CMP and paid no federal CMPs from fiscal years 2003  through 2005; however, during the same period, the Pennsylvania state  survey agency implemented seven state CMPs and collected $12,050. A  Pennsylvania state survey agency official said that the state prefers to use  state sanctions because they can be implemented more quickly and are  believed to be more effective than federal sanctions. The Texas state  survey agency does not recommend more than one type of money penalty  for the same deficiency and chooses among one of two state money  penalties or a federal CMP.
DPNA trends. The number of DPNAs declined by 42 percent from fiscal  years 2000 through 2002 to fiscal years 2003 through 2005 for the homes  we reviewed. Overall, the duration of the DPNAs decreased by 12 percent  from the first to the second time period. The duration of DPNAs among the  Texas homes we reviewed decreased the most—from an average of   46 days in the first time period to an average of 26 days in the second time  period. The duration of DPNAs among the Michigan and Pennsylvania  homes also decreased (see app. III). In California, however, the DPNAs  were in effect longer in the second time period—from an average of   39 days in fiscal years 2000 through 2002 to an average of 63 days in fiscal  years 2003 through 2005. As a result, homes in California were out of  compliance for longer periods of time.
Termination trends. Only two of the homes we reviewed closed  involuntarily—that is, they were terminated for cause by CMS because of  health and safety issues. One of the two homes has since been certified to  participate in Medicare again. An additional nine other homes closed  voluntarily, although four reopened at some point during fiscal years 2000  through 2005. However, a home’s voluntary closure may not accurately  reflect the degree to which the home had quality problems, such as a  history of harming residents, that put the home at risk of involuntary  termination. The reasons for closure, as recorded by CMS, are general and  do not always reflect that homes may have histories of harming residents  and may have been at risk of involuntary termination.
section_title: Implementation Rate of Some Sanctions Has Declined for the Homes Reviewed
paragraphs: The implementation rate of DPNAs and terminations declined for the  homes we reviewed, while the implementation rate of CMPs increased  across three time periods (see fig. 2). Some sanctions are never  implemented because CMS rescinds them if homes correct deficiencies  before the implementation date, a situation we noted in our 1999 report.  Thus, sanctions may be considered more of a threat than a real  consequence of noncompliance.
We compared the implementation rates of CMPs, DPNAs, and  terminations across three time periods: (1) July 1995 to October 1998, the  time period covered in our March 1999 report; (2) fiscal years 2000  through 2002; and (3) fiscal years 2003 through 2005. From the first time  period to the third, the implementation rate for DPNAs declined by about  20 percent and the implementation rate for terminations declined by about  97 percent. In contrast, across the same time periods, the overall  implementation rate for CMPs increased from 32 percent in the first time  period to 86 percent in the third time period, an almost threefold increase.  The timing of this increase coincides with the January 2000  implementation of the immediate sanctions policy, suggesting that the  increase may in part be related to the policy’s implementation.
section_title: CMS Did Not Take Advantage of the Full Range of Sanctions for the Homes Reviewed
paragraphs: Among the homes we reviewed, CMS did not use the full range of its  sanctions authority, generally imposing CMPs on the lower end of the  allowable range. In addition, CMS imposes DPNAs and involuntary  terminations when they are mandatory, but generally not when they are  discretionary. Homes subject to such mandatory sanctions have more  opportunities to escape sanctions prior to implementation. The median  per instance CMP implemented was $2,000 in fiscal years 2000 through  2002 and $1,750 in fiscal years 2003 through 2005, although the maximum  per instance CMP can be as high as $10,000. The median per day CMP  implemented for nonimmediate jeopardy deficiencies was $500 in fiscal  years 2000 through 2002 and $350 in fiscal years 2003 through 2005,  significantly below the maximum of $3,000 per day. In cases in which  homes were cited for immediate jeopardy and the maximum potential per  day CMP is $10,000, the median per day CMP implemented was $3,050 in  fiscal years 2000 through 2002 and $5,050 in fiscal years 2003 through 2005.  According to one CMS official, the agency generally hesitates to impose  CMPs that are higher than $200 per day, in part because of concerns that  higher per day CMPs could bankrupt some homes. But the same official  noted that the CMPs being imposed are not enough to “make nursing  homes take notice” or to deter them from deficient practices. Another  CMS official stated that some homes consider CMPs a part of the “cost of  doing business” or as having no more effect than a “slap on the wrist.”  Table 5 provides examples of homes we reviewed with implemented CMPs  that were at the low end of the allowable CMP range.
CMS is likely to impose DPNAs and terminations only when required to do  so. However, CMS also has broad authority to impose DPNAs and  terminations at its discretion, which can facilitate quicker implementation.  Discretionary DPNAs and terminations can be implemented any time after  a survey if the sanction is appropriate for the cited deficiencies and the  required notice period is met. In contrast, the soonest that mandatory  DPNAs and terminations for nonimmediate jeopardy can be implemented  is 3 and 6 months, respectively, after the survey on which the deficiencies  were cited. Despite the greater expediency of discretionary DPNAs,   64 percent of the DPNAs CMS imposed were mandatory for fiscal years  2000 through 2005 for the homes we reviewed. For example, CMS imposed  a total of six DPNAs during fiscal years 2000 through 2003 on a  Pennsylvania home with demonstrated compliance problems. Of those six  DPNAs, the first five were mandatory DPNAs. Only the last DPNA— imposed after multiple years of repeated noncompliance at the G-level or  higher—was a discretionary DPNA.
Moreover, CMS imposed significantly more mandatory terminations than  discretionary terminations; in fiscal years 2000 through 2005, 118  mandatory and 5 discretionary terminations were imposed on the homes  we reviewed. None of the mandatory terminations were implemented,  but 2 discretionary terminations were implemented—one each in Michigan  and Texas. An official from the Texas state survey agency said that the  CMS regional office in Dallas prefers to impose mandatory terminations,  unless there is cause to believe there will be no improvements in the care  provided by the nursing home. Mandatory terminations give homes   6 months to correct deficiencies before being implemented, as opposed to  discretionary terminations, which can be implemented more quickly.
Even when CMS imposes terminations, their deterrent effect is weakened  because the agency sometimes extends the termination dates. For  example, CMS extended the discretionary termination dates for up to   6 months for some of the Texas homes we reviewed if the nursing homes  had lower-level deficiencies on subsequent surveys. The termination date  imposed on one Texas nursing home we reviewed was extended three  times in fiscal year 2001 from the original date of April 18 to June 26, then  to July 26, and finally to September 26. The first extension occurred  because the home corrected the deficiencies that caused immediate  jeopardy cited during the first survey. Therefore, despite the fact that this  home continued to be found out of compliance for deficiencies such as  mistreatment or neglect of residents during subsequent surveys, CMS  extended the termination date twice to give the home an additional  opportunity to correct those deficiencies and achieve substantial  compliance. The termination ultimately was rescinded because the home  corrected the deficiencies, but the home was subsequently cited for eight  G-level deficiencies such as inadequate treatment or prevention of  pressure sores, employing convicted abusers, and poor accident  supervision or prevention. In 2004, the home closed voluntarily.
section_title: Despite Changes in Federal Enforcement Policy, Many Homes Continued to Cycle In and Out of Compliance
paragraphs: Despite changes in federal enforcement policy, almost half of the homes  we reviewed—homes with prior serious quality problems—continued to  cycle in and out of compliance, continuing to harm residents. These homes  corrected deficiencies only temporarily and, despite having sanctions  implemented, were again found to be out of compliance during subsequent  surveys. Our analysis also showed that in some cases the double Gs did  not result in immediate sanctions as required, even though about   40 percent of the homes were cited for double Gs during fiscal years 2000  through 2005. In addition, the term “immediate sanctions policy” is  misleading because the policy requires only that sanctions be imposed,  that is, that homes be notified immediately of CMS’s intent to implement  sanctions, not that sanctions must be implemented immediately.  Furthermore, when a sanction is implemented for a double G citation,  there is a lag time between when the double G occurs and the sanction’s  effective date. CMS cited double Gs multiple times at several of the homes  we reviewed, suggesting that immediate sanctions did not deter future  noncompliance as intended. Terminations of homes is infrequent, in part  because of concerns such as local access to other nursing facilities and the  effect on residents if they are moved, and in part because CMS allows  some problem homes to continue operating until the homes eventually  close voluntarily.
subsections: section_title: Many Homes Cycled In and Out of Compliance, Continuing to Harm Residents
paragraphs: Consistent with our earlier work, our current analysis showed that  sanctions appear to have induced homes to correct deficiencies only  temporarily because surveyors found that many of the homes we reviewed  with implemented sanctions were again out of compliance on subsequent  surveys. Commenting on this phenomenon, state survey agency officials  said that improvements resulting from sanctions might last about   6 months. From fiscal years 2000 through 2005, 31 of the 63 homes we  reviewed (about 49 percent) cycled in and out of compliance more than  once, harming residents, even after sanctions had been implemented,  including 8 homes that did so seven times or more (see fig. 3).
Each of the 31 homes that cycled in and out of compliance more than once  during the period we reviewed had at least one G-level or higher  deficiency in at least one period of noncompliance; 19 had at least one   G-level or higher deficiency in every noncompliance period. Table 6 shows  the number and length of noncompliance periods for a Michigan home we  reviewed that cycled in and out of compliance nine times from fiscal years  2000 through 2005; the home remained open as of November 2006.  Appendix IV provides similar examples for homes in California,  Pennsylvania, and Texas. Homes’ correction of deficiencies often was  temporary, despite receiving sanctions. Thus, once the homes we reviewed  corrected deficiencies, they maintained compliance for a median of   133 days and then cycled out of compliance again. Some homes cycled out  of compliance more quickly—homes were again out of compliance in   30 days or less about 8 percent of the time and within 60 days about   28 percent of the time.
section_title: Relatively Few Homes Reviewed Were Cited for Double Gs
paragraphs: Despite the large number of G-level or higher deficiencies cited for the  homes we reviewed, relatively few of these homes were cited for double  Gs, and some double G citations did not result in sanctions. Over the   6-year period, 27 of the homes we reviewed had 69 double Gs. However,   47 of the homes had 444 G-level or higher deficiencies. We found no  record that CMS imposed a sanction for 15 of the 69 double Gs, but the  data did show that CMS implemented sanctions for the remaining double  G cases.
Across the four states we reviewed, there was variation in the citation of  G-level or higher deficiencies and the implementation of immediate  sanctions. For example, from fiscal years 2000 through 2005, 35 percent of  G-level or higher deficiencies and 52 percent of double Gs among the  homes we reviewed were cited in Michigan, while 9 percent of the G-level  or higher deficiencies and 4 percent of the double Gs were cited in homes  in California. In California, complaints typically are investigated under  state licensure authority and the findings generally are not recorded in the  same manner as deficiencies cited under the federal process, which may  contribute to lower double G citation rates in the state. Thus, California  homes are not cited for a double G when the subsequent deficiency  equivalent to a G-level or higher deficiency was found during a complaint  investigation. Complaint surveys with G-level or higher deficiencies often  lead to double Gs. One CMS official stated that if complaints against  California nursing homes were investigated under the federal complaint  investigation procedure, more double Gs would be cited in California.  The California Department of Health Services conducted a pilot to test the  use of the federal complaint procedure in select district offices, in part  because of the low double G citation rate. As of November 2006, the  department decided not to expand or complete a formal evaluation of the  pilot; instead, the department is focusing on eliminating its backlog of  complaints and initiating complaint investigations within required time  frames.
section_title: Immediate Sanctions Often Not Immediate and Do Not Appear to Deter Noncompliance
paragraphs: Although referred to as the “immediate sanctions” policy, the term is  misleading because (1) there is a lag between when the double G is cited  and when the sanction is implemented, negating the sanction’s immediacy;  (2) the policy only requires that sanctions be imposed immediately, which  does not guarantee that the sanction will be implemented; and (3) homes  may not actually pay a CMP, the most frequently implemented sanction,  until years after citation of the double G because payment is suspended  until after appeals have been adjudicated. Delays in implementing DPNAs  and in collecting CMPs—which diminish their immediacy—coupled with  their nominal amounts may undermine their deterrent effect.
Immediate sanctions often are not immediate because there is a lag time  between the identification of deficiencies during the survey and when a  sanction (i.e., a CMP or DPNA) is actually implemented. CMS  implemented about 68 percent of the DPNAs for double Gs among the  homes we reviewed during fiscal years 2000 through 2005 more than   30 days after the survey (see app. V). In contrast, CMPs can go into effect  as early as the first day the home was out of compliance, even if that date  is prior to the survey date, because, unlike DPNAs, CMPs do not require a  notice period. About 98 percent of CMPs imposed for double Gs took  effect on or before the survey date. Figure 4 illustrates the lag time that  can occur between the survey date and the implementation date of the  sanction, especially with regard to DPNAs. For example, in fiscal years  2000 through 2005, 60 percent of the DPNAs in the homes we reviewed  were implemented 31 to 60 days from the date of the survey citing  deficiencies. In contrast, nearly all CMPs were implemented on or before  the survey date.
While the immediate sanctions policy requires that sanctions be imposed  immediately, it is silent on how quickly sanctions should be implemented.  A sanction is considered imposed when a home is notified of CMS’s intent  to implement a sanction—15 days from the date of the notice. If during the  15-day notice period the nursing home corrects the deficiencies, no  sanction is implemented. Thus, even under the immediate sanctions  policy, which is intended to eliminate grace periods for nursing homes  repeatedly cited for deficiencies at the actual harm level or higher, nursing  homes have a de facto grace period.
While CMPs can be implemented closer to the date of survey than DPNAs,  the immediacy and the effect of CMPs may be diminished by (1) the  significant time that can pass between the citation of deficiencies on a  survey and the home’s payment of the CMP and (2) the low amounts  imposed, as described earlier in this report. By statute, payment of CMPs  is delayed until appeals are exhausted. For example, a Michigan home did  not pay its CMP of $21,600 until more than 2 years after a February 2003  survey had cited a G-level deficiency. (See fig. 5.) The February G-level  citation was a repeat deficiency: less than a month earlier, the home had  received another G-level deficiency in the same quality of care area. The  delay in collecting the fine in this case is consistent with a 2005 report  from the Office of Inspector General of the Department of Health and  Human Services that found that the collection of CMPs in appealed cases  takes an average of 420 days—a 110 percent increase in time over  nonappealed cases—and “consequently, nursing homes are insulated from  the repercussions of enforcement by well over a year.”
Unlike the Social Security Act, the federal Surface Mining Control and  Reclamation Act of 1977 provides for the collection of CMPs prior to  exhaustion of administrative appeals. Under this statute, mining  operators charged with civil money penalties have 30 days to either pay  the penalty in full or forward the proposed amount for placement in an  escrow account pending resolution of appeals. This provision, requiring  escrow deposit of a proposed penalty assessment, has been upheld by  three federal circuit courts of appeal, all citing the various procedural  safeguards as helping to ensure sufficient due process to affected  operators. For example, these courts cited the availability of an informal  conference at which mining operators may present information relevant to  an assessment of a penalty. It is unclear whether the informal dispute  resolution process available to nursing homes would provide due process  similar to that provided under the Federal Mining statute. Nonetheless, the  Social Security Act would preclude a more expeditious collection of  nursing home CMPs.
Despite the potentially negative consequences, CMS’s implementation of  the immediate sanctions policy does not appear to deter homes from  harming residents in the future. Two-thirds (18) of the 27 nursing homes  cited for double Gs that subsequently had sanctions implemented went on  to be cited again for one or more additional double Gs. (See fig. 6.)
section_title: Termination Used Infrequently
paragraphs: Nursing homes, even those that repeatedly harm residents, are  infrequently terminated because of CMS’s concerns about access to other  sources of nursing care and the impact of moving residents. Of the homes  we reviewed, two were terminated involuntarily for cause. Another nine  homes closed voluntarily, which is not a sanction because the homes  chose to close. However, the actual reason for closure is not always clear;  a home may close to avoid involuntary termination because of quality  problems cited by state surveyors. Allowing a problem home to close  voluntarily rather than terminating it may result in continuing harm to  residents until the home decides to close. For example, two homes we  reviewed in Pennsylvania and Texas closed voluntarily, but the histories of  both homes show that they were repeatedly cited for harming residents  from fiscal year 2000 through the time of their closures, over 4 years later  in January 2004. The Pennsylvania home cycled in and out of compliance   4 times during the period we reviewed and had noncompliance periods  lasting an average of 170 days. The Texas home cycled in and out of  compliance 10 times during the period reviewed and had average  noncompliance periods of 46 days. On average, both homes had about 6   G-level or higher deficiencies per year in areas such as inadequate  treatment or prevention of pressure sores and resident abuse. The home  in Pennsylvania had an average of 31 other deficiencies per year and the  Texas home had an average of 27.
Four homes we reviewed had similar deficiency histories. Two closed  voluntarily and two remained open as of November 2006 (see table 7).  Although the homes that remained open met the deadline to correct  deficiencies before the termination would have been implemented, a  home’s ability to correct deficiencies in a specified period of time may not  be the strongest criteria upon which to determine whether a home should  remain open, because correcting deficiencies does not ensure that the  home will improve residents’ quality of care and does not prevent the  home from again falling out of compliance. For example, the California  and Michigan homes in table 7 were still operating as of November 2006  but cycled in and out of compliance four and seven times, respectively.
According to CMS and state officials, factors that may prevent or delay  termination of problem nursing homes include (1) concerns regarding lack  of access to alternate local nursing facilities, (2) the potential for resident  trauma as a result of transfer to another home, (3) the preference of  residents’ families for homes located close by, and (4) pressure to keep  homes open from families and other stakeholders. Our analysis of  alternatives to the 4 poorly performing homes in table 7—those that closed  voluntarily or are still open—showed that there were from 2 to 37 homes  within 10 miles of these homes, and from 5 to 120 homes within 25 miles.
section_title: Complex Immediate Sanctions Policy and Data Limitations Hamper CMS Management of Enforcement
paragraphs: While the goal of enforcement is to help ensure nursing home compliance  with federal quality requirements, CMS management of the process is  hampered by the complexity of its immediate sanctions policy and by its  fragmented and incomplete data systems. The agency’s immediate  sanctions policy, intended to deter repeat noncompliance, fails to hold  some homes accountable for repeatedly harming residents. In addition,  although CMS has developed a new data system, the system’s components  are not integrated and the national reporting capabilities are not complete,  hampering the agency’s ability to track and monitor enforcement. Finally,  CMS has taken some steps intended to improve enforcement of nursing  home quality requirements, such as developing guidance to help ensure  greater consistency across states in CMP amounts, revising its Special  Focus Facility program, and commissioning two studies to examine the  effectiveness of nursing home enforcement. It is not clear, however, the  extent to which—or when—these initiatives will address the enforcement  weaknesses we found.
subsections: section_title: Immediate Sanctions Policy Is Complex and Fails to Hold Some Homes Accountable
paragraphs: The double G immediate sanctions policy is complex and fails to hold  some homes accountable. In 2003, we reported that the early  implementation of the policy was flawed. We found that between January  2000 and March 2002 over 700 cases that should have been referred for  immediate sanctions were not because (1) the policy was misunderstood  by some states and regional offices, (2) states lacked adequate systems for  identifying deficiencies that triggered an immediate sanction, and   (3) actions of two of the four states were at variance with CMS policy.  CMS developed an on-line reporting tool for use by survey agency and  regional office staff to automate the identification of double Gs. CMS also  offered training sessions and issued additional guidance to state survey  agencies and regional offices. While the on-line reporting tool and training  were useful, they did not address the underlying complexity of the policy.  For example, CMS staff told us that in developing the tool they had  initially misinterpreted the double G immediate sanctions policy. As a  result, the tool produced many false positives: that is, it identified  deficiencies as triggering an immediate sanction that in fact did not occur.  Moreover, a December 2005 report by the Office of the Inspector General  of the Department of Health and Human Services also reported that state  survey agency staff continued to have difficulty identifying double G  cases.
Furthermore, our analysis of CMS’s application of the policy to the homes  we reviewed demonstrated that the policy’s complex rules allowed homes  to escape immediate sanctions even if they repeatedly harmed residents;  these rules include (1) the requirement for an intervening period of  compliance, (2) the clearing effect of standard surveys, and (3) the lack of  differentiation between single and multiple instances of harm. Such rules  may in part explain why the homes we reviewed only had 69 instances of  immediate sanctions over a 6-year period, despite being cited 444 times for  deficiencies that harmed residents.
Intervening period of compliance. G-level or higher deficiencies only  count toward a double G immediate sanction if the home has an  intervening period of compliance between the two G-level or higher  deficiencies. In order to receive an immediate sanction, a home has to  achieve substantial compliance between the pair of surveys on which the  G-level or higher deficiencies are cited. As a result of this rule, homes that  do not correct deficiencies do not receive immediate sanctions, while  homes that do correct deficiencies do receive immediate sanctions. CMS  officials stated that the intent of the policy as written was to give nursing  homes a chance to correct deficiencies and achieve a period of  compliance. Without this provision, CMS officials believe that homes  could get caught in endless double G cycles.
The following example illustrates how the policy allows nursing homes to  escape immediate sanctions if they do not correct deficiencies and have  ongoing noncompliance periods.
In a 9-month time period, a Pennsylvania home had seven surveys, each  with at least one G-level deficiency (a total of 19 G-level deficiencies).  However, double G immediate sanctions were triggered by only two pairs  of surveys because the home had failed to correct some deficiencies  before the next survey that again found actual harm. Figure 7 illustrates  how some pairs of surveys with G-level deficiencies do not count as a  double G because of the intervening period of compliance rule. For  example, both the March and April surveys cited G-level deficiencies.  However, the pair of surveys did not result in a double G, which would  have triggered immediate sanctions because the home did not correct the  G-level deficiency cited on the March survey before the next G-level  deficiency was cited in April. Following the April survey, the home  corrected the deficiencies, resulting in a period of compliance. In July,  another survey found a new G-level deficiency. Because of the intervening  period of compliance, the March and July surveys resulted in a double G,  for which immediate sanctions would have been warranted.
Clearing effect of standard surveys. Under the double G immediate  sanctions policy, a standard survey without a G-level or higher deficiency  “clears the home’s record” for the purposes of determining whether a  double G occurred. As a result of this rule, surveys with G-level or higher  deficiencies that occurred before the standard survey without a G-level or  higher deficiency are not considered in determining whether a double G  should be cited and an immediate sanction should be imposed. CMS  officials believe that it is appropriate for standard surveys without G-level  or higher deficiencies to clear the home’s record for double G purposes  because standard surveys are comprehensive and occur regularly. Yet, we  have previously reported that weaknesses in the survey process result in  surveyors’ missing serious deficiencies on standard surveys. Moreover,  variability among states in the citation of serious deficiencies suggests that  some states may not be citing deficiencies at the appropriate scope and  severity (see app. II). For example, according to California officials, the  guidance the state received from the CMS regional office created  confusion as to what constituted actual harm, and this confusion  contributed to the decline in citations of serious deficiencies in California.  The regional office clarified its guidance in late 2004.
The following example illustrates how a standard survey without G-level  or higher deficiencies affects double G determinations and how having  uncorrected deficiencies can prevent a home from receiving an immediate  sanction.
In approximately a 12-month period, a Michigan home had five surveys,  four of which had one G-level deficiency. However, the G-level  deficiencies triggered double G immediate sanctions only once instead of  three times because in one instance a standard survey cited no G-level  deficiencies and in the other there was no intervening period of  compliance. Figure 8 illustrates how some pairs of surveys with G-level  deficiencies do not count as double Gs because of the clearing effect of  standard surveys. For example, state surveyors found a G-level deficiency  during a January 2000 complaint survey. However, on the home’s standard  survey a month later (February 2000), no G-level or higher deficiencies  were found by surveyors. As a result, when surveyors found another   G-level deficiency on a complaint survey several months later (November  2000), the G-level deficiency on the home’s January survey was not  considered, and no immediate sanctions were triggered. The pair of  surveys in January 2000 and November 2000 did not trigger immediate  sanctions because, in effect, the February 2000 standard survey cleared  the home’s record.
Multiple instances of harm. Multiple G-level or higher deficiencies  identified on a survey that results in an immediate sanction are sometimes  treated the same, in terms of enforcement, as a single instance of harm or  immediate jeopardy cited on a survey. We examined the sanctions  imposed for a single versus multiple instances of harm and found that the  sanctions can be quite similar, despite the significant differences in the  number of deficiencies. The following example involves two surveys of a  Michigan home with a history of repeated noncompliance. On a survey  with only 1 G-level deficiency, CMS implemented a $350 per day CMP and  a discretionary DPNA. On a different survey with 33 D-level or higher  deficiencies and 6 G-level or higher deficiencies, CMS implemented a   $200 per day CMP and a discretionary DPNA. We found similar examples  among other homes we reviewed.
We discussed our concerns with CMS about how the double G immediate  sanctions policy allows some homes to avoid immediate sanctions. CMS  officials stated that regardless of the policy, state and regional office  officials retain the discretion to impose immediate sanctions even when  not required by the policy. However, based on a discussion with CMS  officials, we believe that, instead of imposing sanctions of appropriate  severity, state and regional office officials may impose weaker sanctions  for problem homes that have escaped immediate sanctions because of the  complexities of the policy. CMS agreed that this could happen.
section_title: CMS Oversight Continues to Be Hampered by Data Limitations
paragraphs: Fragmented data systems and incomplete national reporting capabilities  continue to hamper CMS’s ability to track and monitor enforcement. In  March 1999, we reported that CMS lacked a system for effectively  integrating enforcement data nationwide and that the lack of such a  system weakened oversight. Since 1999, CMS has made progress in  developing an enforcement data collection system called the ASPEN  Enforcement Manager (AEM). However, while AEM collects valuable data  from the states and regions, it is not fully integrated with other CMS  systems used to track nursing home survey and enforcement activities.  For example, when regional and state survey officials want to evaluate  complaint and enforcement data, they must access one system for  complaint data and then access another system, AEM, for enforcement  data. Because there is no direct interface between the two systems, CMS  and states must rely on fragmented data systems for tracking and  monitoring enforcement. Furthermore, CMS officials told us that the  agency does not have a concrete plan to use the enforcement data to  improve monitoring and oversight but that some national enforcement  reports are under development.
From 2000 to 2004, CMS tracked sanctions with LTC, a data system  developed in the Chicago region that became operational in all 10 CMS  regions in 2000. LTC was a relatively simple system designed to collect  sanctions data, automatically generate sanction imposition letters, and  automatically calculate the 35 percent reduction in CMPs for homes that  waive the right to appeal deficiencies. LTC was not always useful for  enforcement oversight because it was sometimes incomplete. Data entry  into the LTC system was optional, and many regional and state surveyors  continued to rely on their own, state-specific tracking systems. Moreover,  during the time LTC was in use, states and regions were expected to  continue updating the enforcement component of OSCAR, which  duplicated some of the information in LTC. This required separate manual  data entry into both LTC and OSCAR. We were told by regional office  officials that sometimes only one of the files would be updated.  Furthermore, LTC had no internal quality control checks for ensuring all  fields were completed or that the data were accurate; in its design of LTC,  CMS chose flexibility in modifying the data to accommodate special  circumstances over a more rigid field edits system that would have  controlled the data more tightly.
Since October 1, 2004, CMS has used AEM to collect state and regional  data on sanctions and improve communications between state survey  agencies and CMS regional offices. Specifically, AEM was designed to  provide real-time entry and tracking of sanctions, issue monitoring alerts,  generate enforcement letters, and facilitate analysis of enforcement  patterns. CMS expects that the data collected in AEM will enable states,  CMS regional offices, and the CMS central office to more easily track and  evaluate sanctions against nursing homes as well as respond to emerging  issues. Developed by CMS’s central office primarily for use by states and  regions, AEM is one module of a broader data collection system called  ASPEN. There are a number of other modules under the ASPEN umbrella,  including the ASPEN Complaints/Incidents Tracking System (ACTS)  module. The ASPEN modules—and other data systems related to  enforcement such as the financial management system for tracking CMP  collections—are fragmented and lack automated interfaces with each  other. As a result, enforcement officials must pull discrete bits of data  from the various systems and manually combine the data to develop a full  enforcement picture. For example, if regional office officials want to  review a home’s complaint history, they must access ACTS to print a  report on complaints, access AEM to print a report on corresponding  sanctions, manually compare the two reports, and then access the CMP  tracking system to determine whether a corresponding CMP was paid.  Each step adds to staff workload.
AEM collects potentially useful enforcement data from the states and  regions, but, as described, CMS has not integrated AEM with the other  data collection systems (e.g., ACTS); furthermore, the agency has not  defined a plan for using the AEM data to inform the tracking and  monitoring of enforcement through national enforcement reports. In a  December 2004 CMS report, the agency stated that AEM “will permit  meaningful comparisons of like measures and will serve as a primary tool  on which to base policy decisions, new initiatives and strategies for  improving care to our Nation’s nursing home population.” While CMS is  developing a few draft national enforcement reports, it has not developed  a concrete plan and timeline for producing a full set of reports that use the  AEM data to help in assessing the effectiveness of sanctions and its  enforcement policies. In addition, while the full complement of  enforcement data recorded by the states and regional offices in AEM is  now being uploaded to CMS’s national system, CMS does not intend to  upload any historical data. Efforts to track and monitor enforcement  would be greatly enhanced by reports that contain the historical data; for  example, with historical data the agency could generate reports that  provide a longitudinal perspective of a home’s compliance history,  compare trends across states and regions, and, overall, help evaluate the  effectiveness of sanctions and policies. Finally, like LTC, AEM has quality  control weaknesses. While AEM has some automatic quality control  mechanisms to ensure that the data entered are complete and in a valid  format, there are no systematic quality control mechanisms to ensure that  the data entered are accurate. For example, while the system  automatically requires the entry of valid survey dates, CMS does not  conduct periodic data audits to check that the survey dates are correct.
CMS officials told us they will continue to develop and implement  enhancements to AEM to expand its capabilities over the next several  years. However, until CMS develops a plan for integrating the fragmented  systems and for using AEM data—along with other data the agency  collects—efficient and effective tracking and monitoring of enforcement  will continue to be hampered and, as a result, CMS will have difficulty  assessing the effectiveness of sanctions and its enforcement policies.
section_title: Other CMS Initiatives to Improve Enforcement
paragraphs: In addition to its efforts to implement a new data system for managing  enforcement, CMS has taken other steps to improve its enforcement of  nursing home quality requirements. For example, the agency has  developed guidance to help ensure greater consistency across states in  CMP amounts imposed, revised its Special Focus Facility program, and  commissioned two studies to examine the effectiveness of nursing home  enforcement.
To ensure greater consistency in CMP amounts proposed by states and  imposed by regions, CMS, in conjunction with state survey agencies,  developed a grid that provides guidance for states and regions. The CMP  grid lists ranges for minimum CMP amounts while allowing for flexibility  to adjust the penalties on the basis of factors such as the deficiency’s  scope and severity, the care areas where the deficiency was cited, and a  home’s past history of noncompliance. In August 2006, CMS completed the  regional office pilot of its CMP grid. The results of the pilot, which are  currently being analyzed, will be used to determine how the grid should be  used by states; its use would be optional to provide states flexibility to  tailor sanctions to specific circumstances.
CMS revised its Special Focus Facility program, an initiative intended to  increase the oversight of homes with a history of providing poor care. We  had previously reported that the program was worthwhile but that its  narrow scope excluded many homes that provide poor care. Moreover,  according to CMS, the goal of two surveys per home per year was never  achieved because of the relatively low priority assigned to the program  and the lack of state survey agency resources. In December 2004, CMS  announced three changes in the operation of the program. First, CMS  expanded the scope of the program from about 100 homes nationwide to  about 135 homes by making the number of Special Focus Facilities in each  state proportional to the number of nursing homes. Second, CMS revised  the method for selecting nursing homes by reviewing 3 years’ rather than   1 year’s worth of deficiency data. This change was intended to ensure that  the homes in the program had a history of noncompliance rather than a  single episode of noncompliance. Third, CMS strengthened its  enforcement for Special Focus Facilities by requiring immediate sanctions  for homes that failed to significantly improve their performance from one  survey to the next and by requiring termination for homes with no  significant improvement after three surveys over an 18-month period.  Despite these changes, however, many homes that could benefit from  enhanced oversight and enforcement are still excluded from the program.  As noted earlier, few of the homes we reviewed were or are part of CMS’s  Special Focus Facilities program. In 2005, only 2 were designated Special  Focus Facilities and in 2006, the number increased to 4. Of the 8 homes  that cycled in and out of compliance seven or more times (see fig. 3), 6 are  still open but only 1 is now a Special Focus Facility. Although CMS now  requires QIOs to work with poorly performing nursing homes, this  initiative also only targets a small number of homes—as few as 1 to 3  facilities in each state.
To enhance its understanding of and ability to improve the enforcement  process, CMS has funded two studies that will examine the steps that lead  to sanctions as well as the impact of enforcement on homes’ quality-of- care processes.
Qualitative Enforcement Case Studies. This study, which began in the  spring of 2003 and is scheduled to be completed in early 2007, required  research nurses to visit 25 nursing homes in four states to evaluate how  the survey and enforcement processes are carried out and assess the  extent to which the enforcement process results in changes in nursing  staff behavior and improved compliance with federal requirements.
Impact of Sanctions on Quality. The objective of this study is to test the  effects of sanctions on facility behavior and resident outcomes.  Researchers will identify and compare a group of nursing homes that had  both deficiencies and sanctions to a group of nursing homes that had  similar levels of deficiencies but no sanctions. A year later, researchers  will review the nursing home’s subsequent survey to determine whether  the sanctions resulted in any significant changes in the quality of care  delivered. The study began in the fall of 2004 and the first report is  scheduled to be completed by mid-2007.
Although CMS has taken several steps to improve its enforcement of  nursing home requirements, its Nursing Home Compare Web site does not  include information on sanctions. Thus, CMS does not indicate what  sanctions have been implemented against nursing homes, nor does it  identify homes that have received immediate sanctions for repeatedly  harming residents.
As noted throughout this report, we found variation among the states we  reviewed in areas such as the number and amount of CMPs implemented  and the proportion of homes with double Gs. In general, these differences  reflect the state survey agencies’ views on the effectiveness of certain  sanctions and differences in state enforcement policies. For example,  Pennsylvania state officials prefer state rather than federal sanctions  because they believe the former are more effective, have a greater  deterrent effect on providers, and are easier and quicker to impose.  Pennsylvania requires homes to pay a state CMP prior to appeal, even if  the home appeals the deficiency. In contrast, homes need not pay a federal  CMP until after an appeal is resolved. Pennsylvania rarely implemented  federal CMPs on the 14 state homes whose compliance history we  reviewed, preferring to use state sanctions instead. In Michigan, state  officials are more likely to use federal CMPs and implement them in  greater amounts than other states we reviewed. Texas state officials often  use state rather than federal sanctions for G-level or higher deficiencies, in  part because they cannot propose a federal CMP if they impose a state  sanction and because the total state money penalty that may be imposed  may be higher than federal CMPs. California had fewer sanctions than  Michigan. California typically investigates complaints under its state  licensure authority, which may partly explain why California has fewer  reported deficiencies and federal sanctions. We believe it is important for  CMS to explore the differences in state enforcement approaches and  policies so that it can both identify problem areas and identify best  practices that could be disseminated nationwide.
section_title: Conclusions
paragraphs: Although CMS has taken steps to strengthen the nursing home  enforcement process, our review of 63 homes in four states with a history  of quality problems identified design weaknesses as well as flaws in the  way sanctions are implemented that diminish their full deterrent effect.  Some of these homes repeatedly harmed residents over a 6-year period  and yet remain in the Medicare and Medicaid programs. Until these  systemic weaknesses are addressed, the effectiveness of sanctions in  encouraging homes to return to and maintain compliance will remain  questionable and the safety and security of vulnerable residents will  remain at risk.
CMS’s immediate sanctions policy fails to hold homes with a long history  of harming residents accountable for the poor care provided. The policy’s  complexity, such as the requirement for an intervening period of  compliance, prevents its use for the very homes it was designed to  address—those with systemic quality problems. Furthermore, the  immediate sanctions label is misleading because sanctions are not, in fact,  immediate. The notice period required by CMS regulations for sanctions  such as DPNAs and terminations provides homes with a de facto grace  period during which they can correct deficiencies to avoid an immediate  sanction. Moreover, in one state we reviewed, the immediate sanctions  policy does not fully identify all homes with repeat serious deficiencies  because most complaint deficiencies, which can often trigger a double G,  were being cited under state licensure authority, not federal.  Consequently, some problem homes in the state were not identified by the  policy and thus were able to avoid double G immediate sanctions.
Although CMPs and DPNAs were the most frequently used sanctions  nationwide and for the homes we reviewed, their effectiveness was  undermined by a number of weaknesses. The CMPs levied against the  homes we reviewed were often nominal, significantly less than the  maximum amounts Congress provided for in statute. To strengthen CMPs,  CMS has been developing a CMP grid since 2004 to guide states and  regional offices in determining appropriate CMP amounts, and CMS  regional offices piloted the grid in 2006. However, its implementation is  expected to be optional for states, once again contributing to interstate  variation. Despite the nominal amounts, CMPs, unlike DPNAs, do not  require a notice period and may be imposed retroactively before the date  of the survey. However, these advantages are countered by the fact that,  under the Social Security Act, payment by homes of federally imposed  CMPs is deferred if they appeal their deficiencies, a process that can take  years, diminishing the immediacy of the sanction and further undermining  the sanction’s deterrent effect. While there is precedent under the federal  surface mining statute, which permits the collection of CMPs before  exhaustion of appeals, it is unclear if the informal dispute resolution  process available to nursing homes provides the same type of procedural  safeguards that courts have pointed to in upholding the mining statute  provision. Some states choose to use their own authority to impose state  fines, which can sometimes be implemented faster than is possible under  federal law. Although CMS has the authority to implement discretionary  DPNAs after a 15-day notice period for the homes we reviewed, it did not  generally do so. It imposes mandatory DPNAs when criteria are met,  which provide homes a 3-month de facto grace period to correct  deficiencies. Because many homes we reviewed returned to compliance  within 3 months—though often only temporarily—the DPNAs frequently  were rescinded.
Termination—the most powerful enforcement tool—was used infrequently  nationwide and for the homes we reviewed because of states’ and CMS’s  concerns about potential access to care and resident transfer trauma.  However, we found that some poorly performing homes are located in  areas with several other nearby nursing homes. Even though some homes  we reviewed cycled in and out of compliance numerous times while  continuing to harm residents, CMS allowed them to determine for  themselves whether and when to leave the Medicare and Medicaid  programs. Even when terminations were imposed, their deterrent effect  was undermined by extending some termination dates to give the homes  more time to correct deficiencies. CMS’s earlier termination of such  troubled homes could have cut short the cycle of poor care. CMS’s  revamped Special Focus Facility program would provide for termination  of poorly performing homes within 18 months if they fail to show  significant improvement in the quality of care provided to residents.  Despite the expansion of the program from about 100 to about 135 homes,  the number of Special Focus Facilities is inadequate because, as our work  has demonstrated, the program still fails to include many homes with a  history of repeatedly harming residents.
Although CMS has made progress in establishing a database to help it  track and monitor the nursing home enforcement process, the  development of AEM is not yet complete. AEM is not integrated with other  important databases to help ensure that CMS has a comprehensive picture  of a home’s deficiency history, and CMS has not developed a concrete plan  for using national enforcement reports—built off of AEM data—to help  evaluate the effectiveness of sanctions and its enforcement polices. Having  longitudinal enforcement data available for homes would enable CMS to  pursue increasing the severity of sanctions for homes that repeatedly harm  residents. Furthermore, CMS has not developed a system of quality checks  to ensure the accuracy and integrity of AEM data.
CMS’s Nursing Home Compare Web site has been modified a number of  times to add important quality information about nursing homes. While  CMS now summarizes the results from both standard surveys and  complaint investigations, the Web site contains no information about  sanctions implemented against nursing homes, nor does it identify homes  that have received immediate sanctions for repeatedly harming residents.  Such information could be valuable to consumers who use the Web site to  help choose a home for family members or friends.
section_title: Recommendations for Executive Action
paragraphs: To address weaknesses that undermine the effectiveness of the immediate  sanctions policy, we recommend that the Administrator of CMS reassess  and revise the policy to ensure that it accomplishes the following three  objectives: (1) reduce the lag time between citation of a double G and the  implementation of a sanction, (2) prevent nursing homes that repeatedly  harm residents or place them in immediate jeopardy from escaping  sanctions, and (3) hold states accountable for reporting in federal data  systems serious deficiencies identified during complaint investigations so  that all complaint findings are considered in determining when immediate  sanctions are warranted.
To strengthen the deterrent effect of available sanctions and to ensure that  sanctions are used to their fullest potential, we recommend that the  Administrator of CMS take the following three actions:    Ensure the consistency of CMPs by issuing guidance such as the  standardized CMP grid piloted during 2006.
Increase use of discretionary DPNAs to help ensure the speedier  implementation of appropriate sanctions.
Strengthen the criteria for terminating homes with a history of serious,  repeated noncompliance by limiting the extension of termination dates,  increasing the use of discretionary terminations, and exploring alternative  thresholds for termination, such as the cumulative duration of  noncompliance.
To collect CMPs more expeditiously, which could increase their deterrent  effect, we recommend that the Administrator of CMS develop an  administrative process under which CMPs would be paid—or Medicare  and Medicaid payments in equivalent amounts would be withheld—prior  to exhaustion of appeals and seek legislation for the implementation of  this process, as appropriate. Payments could be refunded with interest if  the deficiencies are modified or overturned at appeal.
To strengthen sanctions for homes with a history of noncompliance, such  as a large number of deficiencies or a large number of actual harm and  immediate jeopardy deficiencies, we recommend that the Administrator of  CMS consider further expanding the Special Focus Facility program with  its enhanced enforcement requirements to include all homes that meet a  threshold, established by CMS, to qualify as poorly performing homes.
To improve the effectiveness of its new enforcement data system, we  recommend that the Administrator of CMS take the following three  actions:    Develop the enforcement-related data systems’ abilities to interface with  each other in order to improve the tracking and monitoring of  enforcement, such as by developing an automatic interface between  systems such as AEM and ACTS.
Expedite the development of national enforcement reports, including  longitudinal and trend reports designed to evaluate the effectiveness of  sanctions and enforcement policies, and a concrete plan for using the  reports.
Develop and institute a system of quality checks to ensure the accuracy  and integrity of AEM data, such as periodic data audits conducted as part  of CMS’s annual state performance reviews.
To improve public information available to consumers that helps them  assess the quality of nursing home care, we recommend that the  Administrator of CMS expand CMS’s Nursing Home Compare Web site to  include implemented sanctions, such as the amount of CMPs and the  duration of DPNAs, and homes subjected to immediate sanctions.
section_title: Agency and State Comments and Our Evaluation
paragraphs: We obtained written comments on our draft report from CMS and three of  the four states in which the homes we studied were located—California,  Michigan, and Texas. We also received e-mail comments from the Director  of the Division of Nursing Care Facilities in Pennsylvania. CMS’s  comments are reproduced in appendix VI. California’s, Michigan’s and  Texas’s comments are reproduced in appendixes VII, VIII, and IX,  respectively. CMS generally concurred with our 12 recommendations in  six areas intended to strengthen the enforcement process but did not  always specify how it would implement the recommendations. In addition,  CMS noted that implementation of 3 of our recommendations raised  resource issues and that others required additional research. California  concurred with our conclusions and recommendations, while Michigan  and Pennsylvania indicated appreciation or general agreement. However,  most state comments, including Texas’s, were technical in nature. Our  evaluation responds to CMS and state comments in the six areas covered  by our recommendations.
Addressing weaknesses in the double G immediate sanctions policy.  CMS agreed that homes that repeatedly harm residents should not escape  immediate sanctions and stated that it would remove the limitation on  applying an additional sanction when a home failed to correct a deficiency  that gave rise to a prior sanction. CMS also agreed to reduce the lag time  between citation and implementation of a double G immediate sanction by  limiting the prospective effective date for DPNAs to no more than 30 to   60 days. Reducing the lag time as much as possible is critical because it  provides homes with a de facto grace period in which to correct  deficiencies and avoid sanctions. Michigan commented about the need to  increase the immediacy of DPNAs, noting that even the 15-day notice  period associated with discretionary DPNAs was outdated now that homes  are notified electronically and delivery can be verified. Currently, CMS has  an incomplete picture of serious deficiencies cited against homes that  could result in immediate sanctions because California investigates many  nursing home complaints under state licensure authority. CMS agreed to  collect additional information on complaints for which data are not  reported in federal data systems. We believe that CMS’s commitment to do  this will help better identify and deal with consistently poorly performing  homes. CMS commented that the Social Security Act does not provide  authority for CMS to require states to report enforcement actions taken  under state-only authority if federal resources are not used for the  complaint investigation; however, to the extent that federal funds are used  for complaint investigations, our findings and recommendations remain  valid. Michigan concurred that CMS needs the complete compliance  history of a facility to assess its overall performance.
CMS acknowledged that the complexity of its immediate sanctions policy  may be an inherent limitation and indicated that it intends to either  strengthen the policy or replace it with a policy that achieves similar goals  through alternative methods. CMS noted that it is concerned about  whether the immediate sanctions policy has negatively affected the rates  of state deficiency citations and may ultimately be ineffective with the  most problematic facilities. We believe the policy has merit but that its  complex requirements have prevented many homes from receiving  immediate sanctions.
Strengthening the deterrent effect of sanctions. CMS agreed to issue  a CMP analytic tool, or grid, and to provide states with further guidance on  discretionary DPNAs and terminations. The CMP grid is a tool to help  ensure national consistency in CMPs and to assist CMS regional offices in  monitoring enforcement actions. Texas commented that it had been using  the grid since June 2006 and found it to be very helpful. Michigan noted  that it had independently developed and implemented a CMP grid in 2000  but expressed disappointment that CMS had not mandated state use of the  agency’s grid. In addition, Michigan supported the need for additional CMS  guidance on the use of discretionary termination. Such guidance, it  commented, was necessary to ensure a consistent national approach. In  response to our recommendation to increase the use of discretionary  terminations, CMS stated that it will continue its research to design  proposals that yield a more effective combination of robust enforcement  actions but that do not penalize vulnerable residents. While we encourage  CMS’s commitment to further research to improve the effectiveness of  enforcement actions, we believe that CMS must also be committed to  protecting residents from actual harm in poorly performing facilities— including terminating homes from the Medicare or Medicaid programs— when other steps fail to ensure the quality of resident care.
Collecting CMPs more expeditiously. CMS agreed to seek legislative  authority to collect CMPs prior to the exhaustion of appeals, which could  increase their deterrent effect. California commented that it supported this  recommendation.
Expanding the Special Focus Facility program. CMS agreed with the  concept of expanding the program to include all homes that meet a  threshold to qualify as poorly performing homes, but said it lacks the  resources needed for this expansion because of decreases in its budget  and increases in both the number of providers and quality assurance  responsibilities for state and federal surveyors. CMS stated that it  envisioned expansion of the program if Congress fully funds the  President’s proposed fiscal year 2008 budget for survey and certification  activities. CMS specified other initiatives it will implement to improve the  Special Focus Facility program.
Improving the effectiveness of enforcement data. CMS agreed to  develop and implement a system of quality checks to ensure the accuracy  of its data systems, including AEM. While the agency agreed to study the  feasibility of linking the separate data systems used for enforcement and  to develop other national standard enforcement reports, CMS indicated  that available resources may limit its ability to take further action on these  issues. CMS has already invested significant resources in developing  potentially powerful data systems intended to improve the tracking and  monitoring of enforcement, and we believe the agency should place a  priority on ensuring that these systems operate effectively.
Improving information available to consumers. Rather than agreeing  to report all implemented sanctions on its Nursing Home Compare Web  site, CMS proposed reporting implemented sanctions only for poorly  performing homes that meet an undefined threshold. CMS’s response was  therefore not fully responsive to our recommendation. By only reporting  sanctions for homes that meet a certain threshold—eight or more  sanctions in a 3-year period, in an example provided by CMS—consumers  might incorrectly assume that other homes have received no sanctions.  Furthermore, CMS’s plan to post such limited sanctions data in an  accessible location on its Web site is vague. We believe that consumers  must be able to easily link deficiency and sanctions data.
CMS and three of the four states also provided technical comments, which  we incorporated as appropriate.
As arranged with your office, unless you publicly announce its contents  earlier, we plan no further distribution of this report until 30 days after its  issue date. At that time, we will send copies to the Administrator of the  Centers for Medicare & Medicaid Services and appropriate congressional  committees. We will also make copies available to others upon request. In  addition, the report will be available at no charge on the GAO Web site at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact me  at (202) 512-7118 or allenk@gao.gov. Contact points for our Offices of  Congressional Relations and Public Affairs may be found on the last page  of this report. GAO staff who made major contributions to this report are  listed in appendix X.
section_title: Appendix I: Scope and Methodology
paragraphs: This appendix provides a more detailed description of our scope and  methodology and generally follows the order that findings appear in the  report. We analyzed the fiscal years 2000 through 2005 enforcement and  deficiency history for a total of 63 of the 74 nursing homes in four states— California, Michigan, Pennsylvania, and Texas—whose compliance history  informed the conclusions of our March 1999 report. These homes had a  history of providing poor quality care to residents prior to 1999. We  excluded 11 of the original 74 homes from our analysis because they either  closed before fiscal year 2000 or closed within 6 months of the beginning  of fiscal year 2000 and had few or no deficiencies or sanctions. Some of  the remaining 63 homes participated in the Medicare and Medicaid  programs for only a portion of fiscal years 2000 through 2005 because they  either closed permanently or closed temporarily and were subsequently  reinstated. For these homes, we set a criterion that required that the home  participate for at least 6 months of the fiscal year in order for its  enforcement data in that fiscal year to be included in our analysis. Table 8  shows the distribution of homes across the four states in our 1999 report,  the distribution of those homes for this report, and the number of  providers participating for at least 6 months by fiscal year. Although the  table shows some year-to-year fluctuation in the number of providers, the  changes do not significantly influence our findings. While the focus of our  analysis was the compliance history of these 63 homes, we also analyzed  general trends in (1) implemented sanctions nationwide for the same   6-year period and (2) the proportion of homes in each state cited for  serious deficiencies—that is, those at the actual harm or immediate  jeopardy level.
CMS deficiency data. To determine the number, scope, and severity of  deficiencies cited for the 63 homes, we analyzed OSCAR (On-Line Survey,  Certification, and Reporting system) deficiency data resulting from  standard surveys and complaint investigations. We also used OSCAR data  on deficiencies identified during standard surveys to analyze state trends  in the proportion of nursing homes cited for actual harm or immediate  jeopardy during fiscal years 2000 through 2005. Because a home may be  surveyed more than once a year, we counted a home only once if it was  cited for actual harm or immediate jeopardy on more than one survey  during the year. CMS officials generally recognize OSCAR data to be  reliable. We have used OSCAR data in our prior work to examine nursing  home quality.
CMS enforcement data and reliability issues. Because CMS used  multiple data systems during the 6-year period we reviewed and because  of data reliability issues, such as incomplete or inaccurate data, we used  several sources to validate and analyze the enforcement history of the   63 homes. Based on discussions with CMS regional staff who were  responsible for inputting the data, our primary data source for homes in  California, Michigan, and Pennsylvania for the period fiscal years 2000  through 2004 was the Long Term Care Enforcement Tracking System  (LTC). Because CMS’s Dallas regional office expressed concern about  reliability of LTC data in the region, we relied primarily on regional office  and state enforcement case files for the Texas homes we reviewed. CMS  phased out use of LTC at the end of fiscal year 2004 and began using  Aspen Enforcement Manager (AEM) to track sanctions. We obtained data  for fiscal year 2005 sanctions from the limited AEM data stored in the  OSCAR enforcement file. To clarify data from LTC or AEM and to perform  some basic data checks, we relied on regional office and state  enforcement case files and made adjustments as appropriate. We  discussed the reliability of LTC and AEM enforcement data with CMS and  state survey agency officials. CMS informed us that the data generally  were reliable. We determined that the data were sufficiently reliable to  assess broad trends in implemented sanctions nationwide, and to analyze  sanctions among the 63 homes we reviewed because we could conduct  checks of the homes’ enforcement data using CMS regional office and  state case files. Because we could not conduct such checks of the data in  all 50 states and the District of Columbia, we did not analyze trends across  the individual states.
Trends in sanctions. Based on our assessment of data reliability, we  determined that we could assess broad trends in implemented sanctions  nationwide, but because we could not conduct checks of the data in all   50 states and the District of Columbia, we did not analyze trends across  the states. For the homes we reviewed, using data from LTC, AEM, and  regional office and state enforcement case files as described above, we  analyzed the number of civil money penalties (CMP), denial of payments  for new admissions (DPNA), and terminations implemented over two   3-year time periods—fiscal years 2000 through 2002 and fiscal years 2003  through 2005. We aggregated sanctions into fiscal years on the basis of  their implementation dates. To determine the duration of DPNAs across  the two time periods, we calculated the difference between the effective  dates and the end of the DPNAs. To determine the amount of CMPs paid,  we used the CMP Tracking System (CMPTS), a CMS financial management  system, and aggregated CMPs into fiscal years according to the year in  which they were implemented. Based on discussions with CMS officials  we determined that data in CMPTS are generally reliable. They also stated  that the system is the primary system used by CMS for the collection of  CMPs and is the only source for CMP payment data used by CMS. We  matched CMP data in LTC and CMPTS based on their collection number.  For fiscal year 2005, we relied on regional enforcement files for the  amount of paid CMPs.
Implementation rate of sanctions. We determined the implementation  rate of sanctions imposed for the homes we reviewed in fiscal years 2000  through 2005. The percentage of implemented sanctions was calculated by  dividing the number of implemented sanctions by the total number of  imposed sanctions. The total number of imposed sanctions included those  that were implemented, not implemented, and were pending. We used data  from our March 1999 report on imposed and implemented sanctions for  the period July 1995 through October 1998.
Range of sanctions. CMS enforcement data allowed us to differentiate  between per day and per instance CMPs and mandatory and discretionary  DPNAs and terminations. We counted the number of sanctions by type and  aggregated the number by fiscal year based on the date of implementation.  The data provided the value of per day and per instance CMPs, which were  used to calculate the median values of CMPs across the two time  periods—fiscal years 2000 through 2002 and 2003 through 2005.
Cycling in and out of compliance. We analyzed the enforcement data  from LTC, AEM, and CMS regional office and state records to determine if  the 63 homes we reviewed cycled in and out of compliance from fiscal  years 2000 through 2005. To determine the number of times homes cycled  in and out of compliance, we counted the number of noncompliance  cycles recorded for the 63 homes. A noncompliance cycle begins on the  date of the survey finding noncompliance and ends when the home has  achieved substantial compliance by correcting deficiencies. For  noncompliance cycles for which sanctions were implemented, we  examined survey dates, the date substantial compliance was achieved, and  the sanctions that were implemented as a result of the deficiencies cited.  To determine how quickly homes were again noncompliant, we calculated  the difference between the date of the first survey of the subsequent  noncompliance cycle and the substantial compliance date of the preceding  noncompliance cycle. To quantify the number of noncompliance cycles  during which actual harm occurred, we assessed whether homes were  cited for G-level or higher deficiencies on the surveys within the  noncompliance cycle.
Immediate sanctions policy. We identified instances in which the   63 homes we reviewed were cited for repeatedly harming residents to  determine if immediate sanctions were imposed and their effect on  deterring subsequent noncompliance. To identify sanctions imposed as a  result of the immediate sanctions policy, we first identified homes that  qualified for immediate sanctions using CMS’s Providing Data Quickly  (PDQ) system which prepares a variety of reports using survey and  certification data. CMS officials indicate that the data in Providing Data  Quickly are generally recognized as reliable. We then matched the survey  date in Providing Data Quickly with the survey date in the enforcement  data to identify the noncompliance cycle during which qualifying  deficiencies were cited. This step enabled us to identify the sanctions  imposed. We reviewed each case individually to verify that the sanction  was the result of actual harm or higher-level deficiencies that denied the  home an opportunity-to-correct period or simply resulted from another  survey in the same noncompliance cycle. We also compared the date of  survey with the imposition and effective dates of sanctions to assess how  much time passed between identification of the deficiency that led to the  immediate sanction and the imposition and implementation of the  sanction. During the course of our work, we also discussed the rationale  behind the specific formulation of the immediate sanctions policy with  CMS officials.
section_title: Appendix II: Percentage of Nursing Homes Cited for Actual Harm or Immediate Jeopardy, by State, Fiscal Years 2000-2005
paragraphs: In order to identify trends in the proportion of nursing homes cited with  actual harm or immediate jeopardy deficiencies, we analyzed data from  CMS’s OSCAR database for fiscal years 2000 through 2005 (see table 9).  Because surveys are conducted at least every 15 months (with a required  12-month statewide average), it is possible that a home was surveyed  twice in any time period. If a home was cited for a G-level or higher  deficiency on more than one survey during the fiscal year, we only  counted it once.
section_title: Appendix III: Federal Sanctions for Nursing Homes Reviewed, by State, Fiscal Years 2000-2005
paragraphs: Table 10 provides the number of CMPs, DPNAs, and terminations  implemented in the nursing homes we reviewed, by state for fiscal years  2000-2002 and fiscal years 2003-2005. It also provides the total amount of  CMPs paid and the total duration of DPNAs implemented during the two  time periods. The total amount of CMPs payable in the fiscal years may  differ from what was paid.
section_title: Appendix IV: Examples of Homes Reviewed That Frequently Cycled In and Out of Compliance
paragraphs: This appendix provides additional examples of the compliance history of  homes we reviewed that frequently cycled in and out of compliance (see  table 6). The table also includes examples of the nature of the deficiencies  cited in each noncompliance period. The three homes in table 11 were  cited for serious deficiencies—those at the actual harm or immediate  jeopardy level—and corrected these deficiencies only temporarily, despite  receiving sanctions; on subsequent surveys, they were again found to be  out of compliance, sometimes for the same deficiencies. A noncompliance  period begins on the first day a survey finds noncompliance and ends  when a home both corrects the deficiencies and achieves substantial  compliance or the home is terminated from Medicare and Medicaid. Only  federal sanctions that were imposed and implemented are included in the  table.
section_title: Appendix V: Number of Days between Survey and Implementation Date of DPNA for Homes Reviewed, Fiscal Years 2000-2005
section_title: Appendix VI: Comments from the Centers for Medicare & Medicaid Services
section_title: Appendix VII: Comments from the California Department of Health Services
section_title: Appendix VIII: Comments from the Michigan Department of Community Health
section_title: Appendix IX: Comments from the Texas Department of Aging and Disability Services
section_title: Appendix X: GAO Contact and Staff Acknowledgments
subsections: section_title: Acknowledgments
section_title: Related GAO Products
paragraphs: Nursing Homes: Despite Increased Oversight, Challenges Remain in  Ensuring High-Quality Care and Resident Safety. GAO-06-117.  Washington, D.C.: December 28, 2005.
Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses  in State and Federal Oversight of Quality of Care. GAO-05-78.  Washington, D.C.: November 12, 2004.
Nursing Home Fire Safety: Recent Fires Highlight Weaknesses in  Federal Standards and Oversight. GAO-04-660. Washington D.C.: July 16,  2004.
Nursing Home Quality: Prevalence of Serious Problems, While  Declining, Reinforces Importance of Enhanced Oversight. GAO-03-561.  Washington, D.C.: July 15, 2003.
Nursing Homes: Public Reporting of Quality Indicators Has Merit, but  National Implementation Is Premature. GAO-03-187. Washington, D.C.:  October 31, 2002.
Nursing Homes: Quality of Care More Related to Staffing than Spending.  GAO-02-431R. Washington, D.C.: June 13, 2002.
Nursing Homes: More Can Be Done to Protect Residents from Abuse.  GAO-02-312. Washington, D.C.: March 1, 2002.
Nursing Homes: Federal Efforts to Monitor Resident Assessment Data  Should Complement State Activities. GAO-02-279. Washington, D.C.:  February 15, 2002.
Nursing Homes: Sustained Efforts Are Essential to Realize Potential of  the Quality Initiatives. GAO/HEHS-00-197. Washington, D.C.:   September 28, 2000.
Nursing Home Care: Enhanced HCFA Oversight of State Programs  Would Better Ensure Quality. GAO/HEHS-00-6. Washington, D.C.:  November 4, 1999.
Nursing Home Oversight: Industry Examples Do Not Demonstrate That  Regulatory Actions Were Unreasonable. GAO/HEHS-99-154R. Washington,  D.C.: August 13, 1999.
Nursing Homes: Proposal to Enhance Oversight of Poorly Performing  Homes Has Merit. GAO/HEHS-99-157. Washington, D.C.: June 30, 1999.
Nursing Homes: Complaint Investigation Processes Often Inadequate to  Protect Residents. GAO/HEHS-99-80. Washington, D.C.: March 22, 1999.
Nursing Homes: Additional Steps Needed to Strengthen Enforcement of  Federal Quality Standards. GAO/HEHS-99-46. Washington, D.C.:   March 18, 1999.
California Nursing Homes: Care Problems Persist Despite Federal and  State Oversight. GAO/HEHS-98-202. Washington, D.C.: July 27, 1998.