Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses in State and Federal Oversight of Quality of Care
Published: 2004-11-12T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: GAO was asked to assess the effectiveness of nursing home oversight by considering the effect of a unique Arkansas law that requires county coroners to investigate all nursing home deaths. Coroners refer cases of suspected neglect to the state survey agency and law enforcement entities such as the state Medicaid Fraud Control Unit (MFCU). The Centers for Medicare & Medicaid Services (CMS) contracts with survey agencies in every state to periodically inspect nursing homes and investigate allegations of poor care or neglect. MFCUs are charged with investigating and prosecuting resident neglect. GAO examined (1) the results of Arkansas coroner investigations, (2) the state survey agency's experience in investigating coroner referrals, and (3) whether weaknesses in state and federal nursing home oversight identified in prior GAO reports were evident in the survey agency's investigation of coroner referrals.
section_title: What GAO Found
paragraphs: According to the Pulaski County coroner, he referred 86 cases of suspected resident neglect to the state survey agency for the period July 1999, when the Arkansas law took effect, through December 2003. Agency officials said that other state coroners referred four cases during this time period. Importantly, these 86 referrals constituted just 2.2 percent of all nursing home deaths the coroner investigated. However, the referrals included disturbing photos and descriptions of the decedents, suggesting serious, avoidable care problems; more than two-thirds of the 86 referrals listed pressure sores as the primary indicator of neglect. Some photos of decedents' pressure sores depicted skin conditions so deteriorated that bone or ligament was visible, as were signs of infection and dead tissue. The referrals involved 27 homes, over half of which had at least 3 referrals. Arkansas state survey agency officials told GAO that they received 36 (fewer than half) of the Pulaski County coroner's referrals. The 50 referrals not received described decedents' conditions similar to those the survey agency did receive. Of the 36 referrals for alleged neglect that it received, the survey agency complaint investigations substantiated 22 and eventually it closed the home with the largest number of referrals. However, the agency's investigations often understated serious care problems--both when neglect was substantiated and when it was not. For 11 of the 22 substantiated referrals, the state survey agency either cited no deficiency for the decedent or cited a deficiency at a level lower than actual harm for the predominant care problem identified by the coroner. In contrast, MFCU investigations of many of the 11 referrals found the homes negligent in caring for decedents, and the MFCU reached settlements with the owners of several homes. In half of the 14 referrals not substantiated, the MFCU or an independent expert in long-term care either found neglect or questioned the "not substantiated" finding. Moreover, they found gaps and contradictions in the medical records for some decedents, raising a question about the survey agency's conclusions that the same records indicated appropriate care had been provided. GAO's prior work on nursing home quality of care found that weaknesses in federal and state oversight nationwide contributed to serious, undetected care problems indicative of resident neglect. GAO's review of the Arkansas survey agency's investigations of coroner referrals confirmed that serious, systemic weaknesses remain. Oversight weaknesses GAO previously identified nationwide and those it found in Arkansas included (1) complaint investigations that understated the seriousness of allegations and were not timely; (2) predictable timing of annual state surveys that could enable nursing homes so inclined to cover up deficiencies; (3) survey methodology weaknesses, coupled with surveyor reliance on misleading medical records, that resulted in missed care problems; and (4) a policy that did not always hold homes accountable for neglect associated with a resident's death.

section_title: Letter
paragraphs: An October 2002 series in the St. Louis Post Dispatch concluded that  avoidable deaths of vulnerable nursing home residents was a widespread  but rarely investigated problem. The series spotlighted an Arkansas law  requiring investigations by county officials, such as coroners, of all nursing  home deaths. Under this law, deaths associated with suspected resident  neglect, including poor quality care, are referred to the state survey agency  and to law enforcement entities. The Centers for Medicare & Medicaid  Services (CMS), the federal agency responsible for managing Medicare  and Medicaid, contracts with survey agencies in every state to oversee the  quality of nursing home care. In 1998, we reviewed allegations that  thousands of California nursing home residents died because of poor care.  We found oversight weaknesses that were systemic and not limited to  California. Despite federal and state oversight, over half of the decedents  in our sample had received unacceptable care that sometimes endangered  their health and safety. We also found that state surveyors sometimes  classified deficiencies at homes where residents had died as less serious  than warranted. Our subsequent reports on nursing home quality  continued to demonstrate that (1) an unacceptably large proportion of  nursing homes—one-fifth as of early 2002—harmed residents and   (2) states’ periodic inspections of nursing homes failed to identify all  serious deficiencies, such as preventable weight loss and pressure sores.
Our preliminary work on this report found that the 1999 Arkansas law was  the only such law nationwide. You asked us to consider Arkansas’s  experience with required coroner investigations to assess the effectiveness  of nursing home oversight by the Arkansas state survey agency and by  CMS. Specifically, we examined (1) the results of Arkansas coroner  investigations of nursing home resident deaths, (2) the experience of the  Arkansas state survey agency in investigating suspected cases of resident  neglect referred by county coroners, and (3) whether systemic weaknesses  in state and federal nursing home oversight identified in our prior reports  were evident in the survey agency’s investigations of coroner referrals.
To identify the results of nursing home death investigations by Arkansas’s  75 coroners, we asked the Arkansas Office of Long Term Care, the state  survey agency, to identify referrals from each county coroner since the  law’s effective date. Because the agency told us that all but four of the  referrals were made by the Pulaski County coroner, where the state capital  Little Rock is located, we focused on that county’s referrals. We obtained  and reviewed copies of the coroner’s referrals, including the investigative  reports, autopsy reports (if one was conducted), and photos of decedents  that documented suspected care problems. We interviewed the Pulaski  County coroner to determine how reported deaths were investigated, the  basis for determining when referrals were warranted, and the process for  transmitting referrals to the state survey agency and law enforcement  entities. To evaluate state survey agency investigations of coroner referrals  of suspected nursing home neglect, we asked the Arkansas survey agency  to provide documentation on the results of its investigations. Since the  agency treats such referrals as complaints, we reviewed the agency’s  guidance to surveyors on complaint investigations and discussed the  procedures with agency officials. We followed up with agency staff to  clarify facts regarding specific investigations of coroner referrals, as  needed. To assess the overall quality of care provided at homes with  coroner referrals, we obtained data from the survey agency on other  complaints against these homes and analyzed data in CMS’s On-line  Survey, Certification, and Reporting system (OSCAR). CMS officials  generally recognize OSCAR data to be reliable, and we judged it to be  appropriate for our work.
Since the Pulaski County coroner referrals were also sent to the Arkansas  Medicaid Fraud Control Unit (MFCU), we obtained copies of its  investigative files. MFCUs are charged with investigating and prosecuting  Medicaid provider fraud and incidents of patient abuse and neglect. In  Arkansas, the MFCU is located within the office of the state attorney  general. We compared the results of the state survey agency and MFCU  investigations to identify similarities and differences in their findings. For  some coroner referrals of suspected resident neglect for which we  questioned the state survey agency’s decision to not substantiate the  existence of serious care problems, we asked a professor of nursing with  expertise in long-term care to assess the consistency between the findings  from the agency’s investigations and the decedents’ conditions as  documented by the coroner. The expert’s assessment was based on a  review of the various investigative reports, medical records we obtained,  and photos of decedents taken by the coroner. We also discussed our  evaluation of the investigations with officials from the Arkansas state  survey agency, the MFCU, and CMS. To identify whether systemic  weaknesses in state and federal nursing home oversight were evident in  the survey agency’s investigations of coroner referrals, we reviewed our  findings regarding the Arkansas state survey agency’s investigations in the  context of our prior work on nursing home quality. We conducted our  work from August 2003 through October 2004 in accordance with  generally accepted government auditing standards.
subsections: section_title: Background
paragraphs: Combined Medicare and Medicaid payments to nursing homes for care  provided to vulnerable elderly and disabled beneficiaries totaled about   $64 billion in 2002, with total federal payments of approximately   $45.5 billion. Oversight of nursing home quality is a shared federal-state  responsibility. On the basis of statutory requirements, CMS defines  standards that nursing homes must meet to participate in the Medicare  and Medicaid programs, and contracts with states to assess, through  annual surveys and complaint investigations, whether homes meet these  standards. CMS is also responsible for monitoring the adequacy of state  survey activities. Arkansas’s unique 1999 law requires investigations by  county officials, such as coroners, of nursing home residents’ deaths and  referral of any cases of suspected neglect to the state survey agency and  the MFCU.
subsections: section_title: Standard Surveys
paragraphs: Every nursing home receiving Medicare or Medicaid payments must  undergo an unannounced standard survey not less than once every   15 months, and the statewide average interval for these surveys must not  exceed 12 months. A standard survey entails a team of state surveyors,  including registered nurses, spending several days in the nursing home to  assess compliance with federal long-term care facility requirements,  particularly whether care and services provided meet the assessed needs  of the residents and whether the home is providing adequate quality of  care, such as preventing avoidable pressure sores, weight loss, or  accidents. State surveyors assess the quality of care provided to a sample  of residents during the standard survey, which is the basis for evaluating  nursing homes’ compliance with federal requirements. CMS establishes  specific investigative protocols for state surveyors to use in conducting  these comprehensive surveys. These procedural instructions are intended  to make the on-site surveys thorough and consistent across states. When a  deficiency is identified, the nursing home is required to prepare a plan of  correction that must be approved by the state survey agency. Our earlier  work indicated that facilities could mask certain deficiencies, such as  routinely having too few staff to care for residents, if they could predict  the survey timing; CMS therefore directed states, effective in 1999, to   (1) avoid scheduling a home’s survey for the same month of the year as the  home’s previous standard survey and (2) begin at least 10 percent of  standard surveys outside the normal workday (either on weekends, early  in the morning, or late in the evening).
section_title: Complaint Investigations
paragraphs: Complaint investigations provide an opportunity for state surveyors to  intervene promptly if quality-of-care problems arise between standard  surveys. A nursing home resident, family member, friend, nursing home  employee, or others may file complaints. CMS requires the investigation of  complaints that represent immediate jeopardy to resident health and  safety within 2 working days and considers such complaints to be those  where one or more of the conditions alleged in the complaint, if true, may  have caused or is likely to cause serious injury, harm, impairment, or  death to a resident. Beginning in 1999, CMS required investigation of  complaints that allege harm to a resident (but which do not rise to the  level of immediate jeopardy) within 10 working days, but did not provide  detailed guidance to the states about what constitutes harm until  November 2003. In November 2003 guidance, CMS generally defined two  categories of complaints representing harm: (1) those that, if true, would  impair the resident’s mental, physical, and/or psychosocial status, which  must be investigated within 10 working days, and (2) those that would not  significantly impair the resident’s mental, physical, and/or psychosocial  status, which must be investigated within 45 calendar days. Other  complaints that do not rise to the level of either immediate jeopardy or  harm do not have to be investigated until the home’s next survey, or in  some cases, not at all if the state survey agency can determine with  certainty that no investigation, analysis, or action is necessary. The  requirements identified in the November 2003 guidance became effective  on January 1, 2004.
Generally, nurse surveyors investigate complaints onsite at the nursing  home by reviewing medical records and interviewing staff and residents.  The investigations typically include a sample of residents in addition to the  resident who is the subject of the complaint to help determine if the  problems are systemic. Depending on the volume of complaints against a  particular home, several complaints for different residents may be  investigated concurrently. Each complaint may contain one or more  allegations that a facility is violating federal quality-of-care standards. For  example, a single complaint could allege problems with resident abuse,  treatment of pressure sores, and proper feeding and hydration. In the  course of complaint investigations, the state survey agency can either  substantiate or not substantiate the specific allegations or discover other,  unreported violations of federal standards (see table 1). A substantiated  complaint, however, does not necessarily mean that the state survey  agency found neglect of the resident who was the subject of the complaint  but rather may indicate other, unrelated care problems. If the state survey  agency finds a current violation of a federal standard during a complaint  investigation—even if the violation does not relate to the specific  allegations being investigated or the residents who are the subject of the  complaint—it is required to cite a deficiency against the home. If a  complaint investigation reveals no current violation of federal standards  but determines that an egregious violation of federal standards occurred in  the past that was not identified during earlier surveys, a deficiency known  as past noncompliance should be cited and a civil monetary penalty  imposed. CMS does not define egregious but indicates that it includes  noncompliance related to a resident’s death.
section_title: Deficiency Reporting
paragraphs: Quality-of-care deficiencies identified during either standard surveys or  complaint investigations are classified in 1 of 12 categories according to  their scope (i.e., the number of residents potentially or actually affected)  and their severity. An A-level deficiency is the least serious and is isolated  in scope, while an L-level deficiency is the most serious and is considered  to be widespread in the nursing home (see table 2). States are required to  enter information about surveys and complaint investigations, including  the scope and severity of deficiencies identified, in CMS’s OSCAR  database. Since 1998, such information has been available to the public  through CMS’s Nursing Home Compare Web site.
section_title: CMS Oversight
paragraphs: CMS is responsible for overseeing each state survey agency’s performance  in ensuring nursing homes’ compliance with federal standards for quality  of care. Its primary oversight tools are statutorily required federal  monitoring surveys conducted annually in at least 5 percent of Medicare  and Medicaid nursing homes surveyed by each state, on-site annual state  performance reviews instituted during fiscal year 2001, and analysis of  periodic oversight reports that have been produced since 2000. Federal  monitoring surveys can be either comparative or observational. A  comparative survey involves a federal survey team conducting a complete,  independent survey of a home within 2 months of the completion of a  state’s survey in order to compare and contrast the findings. In an  observational survey, one or more federal surveyors accompany a state  survey team to a nursing home to observe the team’s performance.  Roughly 81 percent of federal surveys conducted in fiscal year 2003 were  observational. State performance reviews, implemented in October 2000,  measure state performance against seven standards, including statutory  requirements on survey frequency, requirements for documenting  deficiencies, timeliness of complaint investigations, and timely and  accurate entry of deficiencies into OSCAR. These reviews replaced state  self-reporting of their compliance with federal requirements. In October  2000, CMS also began to produce 19 periodic reports to monitor both state  and regional office performance. The reports are based on OSCAR and  other CMS databases. Examples of reports that track state activities  include pending nursing home terminations (weekly); data entry  timeliness (quarterly); tallies of state surveys that find homes deficiency- free (semiannually); and analyses, by state, of the most frequently cited  deficiencies (annually). These reports, in a standard format, enable  comparisons within and across states and regions and are intended to help  identify problems and the need for intervention. Certain reports—such as  the timeliness of state survey activities—are used to monitor compliance  with state performance standards.
section_title: The Arkansas Law
paragraphs: In July 1999, Arkansas enacted a law requiring nursing homes to  immediately report the deaths of residents to the local coroner, regardless  of the cause of death. The law included a similar reporting requirement  for a hospital when a resident died within 5 days after transferring from a  nursing home. Coroners who find reasonable cause to suspect that the  death is due to maltreatment are directed to report their findings to the  state Department of Human Services and to law enforcement and the  appropriate prosecuting attorney. The statute leaves the scope of the  investigation up to each coroner.
Like most states, Arkansas already required unnatural deaths to be  reported to the coroner for investigation before enactment of the 1999  law. According to a coroner who was instrumental in demonstrating the  need for the legislation, nursing home administrators chose to release  decedents to funeral homes despite the existing requirement for a coroner  investigation of deaths that occurred under suspicious circumstances.  From 1994 to 1998, this coroner’s office conducted six exhumations of  nursing home residents and, after full postmortem examinations, all six  were determined to have died unnatural deaths. Two cases were ruled  medication errors and four were deaths caused by suffocation. For  example, one resident was found to have suffocated while tied to his  nursing home bed, but the home never reported the death to the coroner.
section_title: Coroner Referrals of Suspected Resident Neglect
paragraphs: The Arkansas state survey agency, an entity within the Department of  Human Services, and the MFCU, an organization within Arkansas’s Office  of the Attorney General, receive and investigate coroner referrals.  Referrals also may be sent to a local city or county prosecutor.
The Arkansas state survey agency treats referrals of suspected neglect of  nursing home residents as complaints. As with other complaints, they are  prioritized for investigation on the basis of the seriousness of the  allegations. Arkansas, like other states, has additional categories with  longer investigation time frames (45 days and next survey) for complaints  judged to be less serious than immediate jeopardy (2 working days) and  actual harm (10 working days). Complaint allegations are entered on an  intake form that also includes the source of the complaint and eventually  the outcome of the investigation. To document their actions, Arkansas  surveyors generally prepare a one-to two-page summary specifically  describing how the complaint was investigated and which specific  allegations were or were not substantiated. Typically, the individual who  filed the complaint is informed about the results of the complaint  investigation. The Arkansas state survey agency uses a computerized  system to track the status of complaint investigations.
In Arkansas, the MFCU’s authority to investigate resident abuse and  neglect is limited to nursing homes that receive Medicaid reimbursement;  therefore, it cannot investigate such allegations in a nursing home that  only participates in Medicare or that only accepts private pay patients.  Generally, MFCUs have concurrent jurisdiction with local investigative  and prosecutorial authorities and can both investigate and prosecute such  cases statewide. On the basis of an investigation, a MFCU can initiate  criminal actions in state court but must first obtain permission from the  local prosecutor. In such cases, the focus is not on whether a home is  providing appropriate care but rather on whether the MFCU can  substantiate in court that an act of neglect occurred. These cases may be  settled out of court by a payment to the state’s Medicaid program without  an admission of guilt.
section_title: Coroner Referrals of Suspected Neglect, While Few in Number, Indicated Serious Care Problems
paragraphs: Of the approximately 4,000 nursing home deaths investigated by the  Pulaski County coroner from July 1999 through December 2003, the  coroner informed us that he identified and referred 86 cases (2.2 percent)  of suspected resident neglect to the state survey agency and the MFCU.  Even when measured against the number of complaints filed against  nursing homes and abuse and neglect case referrals to the MFCU, the  number of coroner referrals was very small. However, the coroner’s  referrals, many accompanied by photos, often depicted signs of serious,  avoidable care problems.
According to the Pulaski County coroner, his staff generally arrives at the  nursing home or hospital within 15 to 20 minutes after the notification,  which is expected to be immediate, of a resident’s death. Facilities have  been instructed not to disturb the resident’s body. The initial on-site  investigation consists of (1) a physical examination of the body, which is  photographed; (2) interviews with the treating physician, staff, and  perhaps family members; and (3) a review of the decedent’s medical  records, including a comparison of doctors’ prescriptions and nurses’  notes to ensure that medications were properly administered. During the  investigation, the coroner’s staff looks for several key indicators of  whether a decedent may have received poor care, including significant  weight loss; dehydration; pressure sores; undocumented injuries, such as  bruises or skin tears; and interviews with family members. Many of these  care indicators are similar to those examined during the state survey  agency’s annual inspection of every nursing home. Before releasing the  body to a funeral home, the coroner may order a toxicology report or ask  the state medical examiner to conduct an autopsy to determine whether  care problems, such as a medication error or blood poisoning (sepsis)  from infected pressure sores, contributed to the resident’s death. Of the 86  residents referred by the coroner to the state survey agency and the  MFCU, 14 had autopsies completed.
Pressure sores, typically serious and often numerous, were the  predominant indication of care problems identified in 67 percent of the  coroner’s referrals (see fig. 1). Pressure sores are caused by unrelieved  pressure on the skin that squeezes the tiny blood vessels supplying the  skin with nutrients and oxygen, causing the skin and ultimately,  underlying tissue to die. Most pressure sores can be prevented with  adequate nutrition, sanitation and frequent repositioning of the resident.
In some of the coroner’s photos, bone or ligament was visible, as were  signs of infection or dead tissue, indicating a serious stage IV pressure  sore (see table 3).
Other indications of care problems identified by the coroner included  bruises, abrasions, and skin tears (12 percent) and falls or broken bones   (6 percent). For one referral, the bruise covered the decedent’s entire  upper chest and for another the arm from the elbow to the shoulder. In  about 15 percent of referrals, the indications of care problems identified  by the coroner were difficult to categorize, such as a decedent with a  catheter whose penis was bloody and irritated, a resident who died when  he attempted to burn off his restraints with a cigarette lighter, and a  resident who was taken to the hospital with breathing problems. An  autopsy of the last resident revealed the presence of toxic or excessive  levels of drugs that likely caused the respiratory problems and contributed  to the development of pneumonia and to death.
For some referrals, the coroner found evidence of multiple care problems.  For example, a 1999 referral involved a decedent with a 9-square inch  pressure sore on her lower back, a gangrenous foot, and ants on her  feeding tube and wounds. According to the resident’s daughter, the odor in  her mother’s room at the nursing home was so great that she had to leave.  The autopsy attributed the gangrene to arteriosclerosis that restricted the  blood supply to her legs but also found that the resident suffocated when  dried mucus that had accumulated in her mouth broke off and blocked her  breathing passage. According to the MFCU, her wounds and oral care  appeared to have been neglected for some time.
The 86 cases of suspected resident neglect occurred in 27 nursing homes.  Although it is difficult to precisely identify the proportion of Pulaski  County nursing homes that had referrals because facilities closed and  opened during the time period we examined, over half of the 27 homes had  three or more referrals (see fig. 2). Fourteen homes accounted for almost  80 percent of the referrals. Some homes had a pattern of referrals  spanning several years. For example, one home had seven referrals—one  in 1999, two in 2000, two in 2001, and another two in 2002. Three of these  seven referrals involved stage IV pressure sores, some of which were  blackened with dead tissue, and one referral involved a resident who died  because of an overdose of drugs administered by the nursing home.  Nineteen of the 27 nursing homes were referred by the Pulaski County  coroner, many of them more than once, because the deceased residents  had pressure sores (see app. I). Eleven of the 12 referrals for one home  involved pressure sores. The standard surveys of these homes, however,  infrequently raised concerns about the care provided to prevent and treat  pressure sores. As of November 2003, 15 of the 19 homes had not been  cited on any of the previous four standard surveys for a pressure sore  deficiency at the actual harm level or higher, while 3 homes each had one  such deficiency.
section_title: The State Survey Agency’s Investigation of Coroner Referrals Often Understated Neglect of Residents
paragraphs: According to Arkansas state survey agency officials, the agency received  36 coroner referrals of suspected resident neglect, less than half of the 86  referrals the coroner said he made. The agency’s investigations of these  coroner referrals often understated serious care problems—both when  neglect was substantiated and not substantiated (see app. II). Even in the  majority of substantiated referrals, the state survey agency failed to cite  serious deficiencies involving care problems for the decedents who were  the subject of the referrals, in effect not confirming the predominant care  problems identified by the coroner. The MFCU’s investigations of many of  these same referrals, however, frequently found that facilities had been  negligent in caring for the decedents by identifying serious lapses in care.  In half of the referrals not substantiated by the state survey agency, either  the MFCU investigation found neglect or we questioned the basis for the  “not substantiated” findings, and our concerns were confirmed by a  professor of nursing with expertise in long-term care. Moreover, the MFCU  found inconsistencies in the medical records for some decedents, raising a  question about the state survey agency’s conclusion that the same records  indicated care had been provided.
subsections: section_title: Fewer than Half of the Coroner Referrals Were Received by the State Survey Agency
paragraphs: Although the Pulaski County coroner told us that he had referred 86 cases  of suspected resident neglect from July 1999 through December 2003,  Arkansas state survey agency officials said that they received fewer than  half (see table 4) and investigated all but one of the referrals they  received. MFCU officials, however, indicated that they received almost  three-fifths of the 86 referrals. The MFCU received all but three of the  referrals received by the state survey agency. Overall, 32 coroner referrals  were not investigated by either agency.
According to the coroner, all the referrals were hand delivered rather than  mailed to ensure that none were lost, but officials at the state survey  agency and the MFCU told us that they did not know how referrals were  delivered. We found inconsistencies in agency and MFCU recordkeeping.  For example, the state survey agency told us that it had received five  referrals on the coroner’s list but could not provide a copy of any  complaint intake forms for them or the results of its investigations for  three of the five referrals. While a MFCU official told us that three other  referrals were forwarded to it by the state survey agency, not the coroner,  the state survey agency had no record of these referrals.
The 50 coroner referrals not received by the state survey agency were  similar to those received. For example, one decedent had large,  unexplained bruises on her chest, upper right arm, and back, including a  mass of more than nine square inches that likely consisted of clotted blood  from a broken blood vessel. A second decedent had five pressure sores— lower leg, heel, lower back, and both hips; according to the coroner’s  report, one of the pressure sores was “draining a dark-colored, pus-filled,  and foul-smelling fluid.” The decedent’s medical records indicated  admission to the nursing home 6 months before death without any  pressure sores. A third decedent had 10 pressure sores with dead tissue on  one heel. A fourth decedent had a large tear on the upper arm, a pressure  sore on one foot with dead tissue extending to mid-calf, and a stage IV  pressure sore on one buttock. Three coroner referrals not received by the  state survey agency but investigated by the MFCU found negligent care  that resulted in settlements and payments by the facilities.
section_title: Serious Deficiencies Seldom Cited for Care Problems Involving Decedents, Even Though Referrals Were Often Substantiated
paragraphs: With the exception of one home, we found that state survey agency  complaint investigations of coroner referrals often failed to cite serious  deficiencies for the decedents being investigated, even though over half of  the referrals investigated were substantiated. Overall, the state survey  agency substantiated 22 of the 36 coroner referrals it investigated at 12  nursing homes. However, the state survey agency cited actual harm or  higher-level deficiencies in quality of care, abuse/neglect, or both for only  11 of these 22 substantiated referrals (see table 5).
Nursing home A accounted for 6 of 11 citations for neglect of decedents at  the actual harm or higher level (see table 5). The neglect involved  inadequate care to prevent and treat pressure sores. The home was  terminated from participation in Medicare and Medicaid in November  2000, about 5 months after the first of a series of state survey agency  complaint investigations initiated as a result of coroner referrals.  Although the agency found that six of the coroner-referred decedents had  been neglected by home A, the results of this home’s March 2000 standard  survey and the timing and results of some complaint investigations prior to  its closure were inconsistent with those findings. We identified the  following inconsistencies in surveys of this home:    The home’s March 3, 2000, standard survey found no deficiencies other  than a C-level deficiency (potential for minimal harm) for inadequate  housekeeping and maintenance, including a water-damaged ceiling tile,  soiled carpeting, and worn upholstery on a sofa. The survey’s resident  sample, however, included a resident who died in mid-April, less than 6  weeks after the standard survey, with five stage IV pressure sores.
Even though the photos accompanying coroner referrals for four  decedents suggested serious, systemic care problems, the state survey  agency did not initiate a complaint investigation until May 16, 2000, about  3 weeks after receiving the referrals, which were all sent at the same  time. CMS guidance requires that such complaints be investigated within  2 to 10 days, but state survey agency officials told us that they often gave a  higher priority to investigating serious complaints for living residents. The  state survey agency cited actual harm deficiencies for quality of care for  three of the four decedents because similar care problems were found for  current residents at the facility.
The May 16 investigation, however, included March 27 and April 3  complaints from family members of one resident alleging that he (1) had  deteriorating, unbandaged pressure sores and (2) was left wet and soiled  for long periods, a situation that could have contributed to worsening  pressure sores. These allegations went uninvestigated for almost 2  months until they were confirmed in May. Investigation of a subsequent  July complaint for this resident documented further deterioration of the  pressure sores that began on his buttocks and extended all the way up his  back.
Although this same resident was included in the sample of a subsequent  September 2000 complaint investigation, his continuing pressure sores  were not cited during that investigation. A final complaint investigation at  the home about 6 weeks later—following the resident’s death—found that  he had 28 pressure sores when he died; 7 of the pressures sores, 2 of  which were stage IV, did not have a physician’s order for treatment.
Only five of the referrals for decedents at other homes resulted in the  citation of a deficiency at the actual harm or higher level for the decedent  in question (see table 5). The deficiencies cited involved quality of care or  abuse/neglect for four of the five decedents. For one of the five decedents,  who had numerous, serious pressure sores, no current violations of  federal standards were identified during the investigation of the coroner’s  referral. Under CMS guidance, surveyors would need to identify a current  resident with inadequate treatment to prevent and heal pressure sores in  order to cite a pressure sore deficiency at the actual harm level. However,  the surveyor determined that an egregious past violation of federal  standards involving this decedent warranted citing a deficiency known as  past noncompliance and imposition of a civil monetary penalty. Because  the deficiency occurred in the past and was assumed to have been  corrected by the facility, a plan of correction was not required and no  deficiency could be cited for the underlying care issue—inadequate  treatment to prevent and heal pressure sores. Although Arkansas state  survey agency officials told us that they frequently cite past  noncompliance, we found that it was cited for only one coroner referral.
For the remaining 11 substantiated coroner referrals, the state survey  agency cited either no deficiency for the decedent or cited a deficiency at  a level lower than actual harm for the predominant care problem identified  by the coroner, even though the MFCU’s investigations found neglect for  six of the decedents, in effect substantiating the existence of serious care  problems in these cases (see table 6). The MFCU’s findings raise a  question about the thoroughness of state survey agency complaint surveys.  Because the nature of the problems identified by the coroner in these 11  referrals did not appear to differ significantly from referrals for home A  that were substantiated at the actual harm or higher level (see table 5), we  asked the state survey agency to review the 11 referrals to determine why  no serious deficiencies were cited and if past noncompliance should have  been cited. Noting their current heavy workload, state survey agency  officials agreed to review 2 of the 11 cases. They told us that they could  not cite an actual harm pressure sore deficiency for either decedent  because the decedents were not in the facility at the time of the complaint  investigations and under CMS guidance, surveyors would need to identify  a current resident with inadequate treatment to prevent and heal pressure  sores in order to cite a pressure sore deficiency at the actual harm level. In  one of these cases, however, agency officials told us that they should have  cited past noncompliance because of the serious nature of the decedent’s  condition.
section_title: State Survey Agency Decision Not to Substantiate Some Coroner Referrals Was Questionable
paragraphs: On the basis of the MFCU’s investigations and our own review, we  question the state survey agency’s decision not to substantiate more of the  coroner’s referrals or forward them to another agency for further  investigation. Overall, the state survey agency did not substantiate 14 of  the 36 coroner referrals that it investigated. Although we did not assess  each of the 14 unsubstantiated referrals in detail, the state survey agency’s  findings for 7 decedents were challenged either by the results of the  MFCU’s investigations or by an expert review conducted at our request.  Both the MFCU and our expert noted omissions and contradictions in the  medical records of some of the 14 decedents, raising a question about the  state survey agency’s conclusions that the same records indicated care had  been provided.
The MFCU’s investigations identified neglect of two decedents that the  state survey agency failed to substantiate. In one of the cases, the MFCU  found that the nursing home failed to (1) accurately assess changes in the  resident’s status, allowing the resident to develop stage II pressure sores  before the staff was even aware that he had a skin problem; (2) track the  resident’s ability to perform certain basic activities of daily living;   (3) routinely monitor his weight despite continued weight loss; and   (4) follow physician orders, sometimes delaying prescribed treatment. In  the other case, the MFCU found that the nursing home failed to provide  necessary treatment, rehabilitation, care, food, and medical services. In  particular, the resident had no skin breakdown upon admission to the  facility. But 7.5 months later, she had six pressure sores, including one on  her right hip that was almost 4 inches across and had progressed to stage  IV and two others that had progressed to stage III. There was no  comprehensive care plan to address the resident’s pressure sores. Other  care was also found negligent. For example, during a hospital stay about   2 months before the resident’s death, the hospital found a large area on the  back of her tongue with a thick buildup of saliva that had not been  properly cleaned at the nursing home for up to 7 days.
For five other coroner referrals not substantiated by the state survey  agency, the expert agreed that we had a basis to question the state survey  agency’s findings. For example, the expert found that (1) some facilities  were not removing the dead tissue around pressure sores; (2) the color of  one decedent’s skin suggested it was urine stained, a situation that  contributes to skin breakdown and infection; and (3) two decedents were  not receiving oral care, the lack of which the expert characterized as  “profound” for one decedent. For three of the five cases, the expert found  evidence that neglect contributed to the residents’ physical condition as  documented in the coroner’s referrals. In general, the expert found the  degree of skin damage and pressures sores in the reviewed cases to be  “very suspicious” and concluded that preventive measures, such as special  mattresses, would have precluded the development of such severe  pressure sores, despite the decedents’ health status. The expert also found  the scarce and inconsistent mention of pain assessment and management  to be suspicious enough to warrant concern about abuse. Although three  of the five deceased residents were receiving hospice care at the nursing  home, our expert questioned the apparent lack of care for these residents.  Ideally, hospice care provides consistent pain assessment and  intervention, measures to prevent further skin breakdown and the  associated discomfort, and local treatment to minimize odor. These  standards are inconsistent with not changing pressure sore dressings, even  if a family member asks not to have them changed. Finally, our expert  questioned if some of the facilities had a quality assurance process in place  to identify systemic problems, such as the incidence of pressure sores. We  found that the state survey agency had cited the facility where two of the  five decedents had resided for immediate jeopardy regarding the federal  requirements to maintain a quality assurance committee that meets  regularly. This deficiency was cited about 9 months before and 9 months  after the residents’ deaths.
In two of the five cases, the state survey agency had concluded that  serious pressure sores were acquired during hospitalizations but did not  identify other care problems noted by our expert consultant. For example,  one of the nursing homes failed to remove dead tissue around the pressure  sores, an indication of poor care. In addition, the expert noted the lack of  oral care for one of these decedents, again raising questions about the  quality of care provided by the home. Even if the state survey agency had  justifiably concluded that the decedents’ serious pressure sores were  acquired during hospitalizations rather than in the nursing homes where  the residents died, neither case was referred to Arkansas’s Division of  Health Facility Services, the entity responsible for oversight of hospitals  that serve Medicare and Medicaid beneficiaries. State survey agency  officials agreed that it might have been appropriate to refer such cases to  this division. CMS’s 1999 guidelines for complaint investigations instruct  state survey agencies to refer cases to another agency when it lacks  jurisdiction.
Omissions and contradictions in the medical records for four other  decedents whose referrals were not substantiated raise a question about  the state survey agency’s conclusions that these same records indicated  care had been provided. For example, in two cases, the MFCU found  numerous omissions in the facility’s care and treatment records, such as  missing entries on the medication records and nurse assistant flow sheets,  as well as a discrepancy as to when a pressure sore was first noted. In  another case, the MFCU concluded that there were so many  documentation problems that it was difficult to follow the course of one  decedent’s care, including late entries that were “questionable and too  many.” In addition, in another case, our expert consultant found that the  seriousness of a pressure sore was understated by the home.
Federal surveyors also found evidence that state surveyors missed or  failed to cite deficiencies, including some that harmed residents. A March  2000 federal comparative survey of an Arkansas nursing home, some of  whose residents were the subject of coroner referrals, found care issues  that had not been identified by the state survey agency. A comparative  survey is conducted within 2 months of a state survey to independently  verify its accuracy. Overall, federal surveyors cited 19 health-related  deficiencies that state surveyors did not, including failure of the nursing  home to develop and implement effective procedures to prevent neglect  and abuse of residents. Three of the 19 deficiencies that state surveyors  did not identify were cited by federal surveyors at the actual harm level:  failure to provide (1) necessary care and services to maintain a resident’s  highest well being; (2) good nutrition, grooming, and personal and oral  hygiene; and (3) treatment and services to increase and prevent further  degradation in a resident’s range of motion. Federal surveyors also cited a  widespread failure in infection control procedures at the potential for  more than minimum harm level. One of the coroner-referred deaths at this  facility occurred within 6 weeks of both the state and federal surveys that  were about 1 month apart. The decedent arrived in the hospital emergency  room with a fever of 104°, an indication of infection, as well as ragged  tears on his right knee and shin and serious pressure sores on both  buttocks. Though documentation was not available, a state survey agency  official told us that this complaint was unsubstantiated.
section_title: Resident Neglect May Go Undetected Because of Well- Documented Oversight Weaknesses
paragraphs: Because of oversight weaknesses that are well-documented nationwide,  neglect of nursing home residents may often go undetected. We found the  same systemic oversight weaknesses in the Arkansas state survey agency’s  investigation of coroner referrals that our prior work on nursing home  quality of care identified nationwide. These oversight weaknesses include  (1) complaint investigations that understated the seriousness of the  allegations and were not conducted promptly; (2) annual standard survey  schedules that allowed nursing homes to predict when the next survey  would occur; (3) survey methodology weaknesses, coupled with surveyor  reliance on misleading medical records, that resulted in overlooked care  problems; and (4) a policy that did not always hold nursing homes  accountable for care problems identified after a resident’s death.
subsections: section_title: Serious Complaints Were Inappropriately Prioritized and Not Promptly Investigated
paragraphs: In 1999, we reported that many survey agencies in the 14 states we  examined often assigned inappropriately low investigation priorities to  complaints and failed to investigate serious complaints promptly. Such  practices may delay the identification and correction of care problems that  may involve other residents of a nursing home in addition to the resident  who is the subject of the complaint. Based on our draft report, CMS  reviewed the Arkansas state survey agency’s prioritization of the 36  coroner referrals the agency said it received. CMS concluded that about   31 percent of the referrals should have been prioritized for more prompt  investigation. Furthermore, CMS found that 5 referrals prioritized by the  state as requiring an investigation within 10 working days suggested the  potential for immediate jeopardy and should have been prioritized for  investigation within 2 working days. The state survey agency prioritized 6  other referrals as not requiring investigation for up to 45 days, but CMS  indicated that 1 of these referrals should have been prioritized for  investigation within 2 days, and the remaining referrals within 10 working  days (actual harm).
Although the state survey agency classified most of the 36 referrals as  requiring investigation within 10 working days, we found a significant  disparity between the prioritization it assigned and the time it actually  took to conduct the investigations. As shown in figure 3, 16 referrals were  investigated in 10 working days or less and 19 referrals took between 11  and 290 working days to investigate. Identifying time frames in terms of  working days, as CMS’s guidance requires, however, understates the actual  elapsed time between receipt and investigation of referrals. The average  elapsed time from the date the survey agency received a referral until it  initiated its investigation was 46 calendar days. Seven referrals were not  investigated for between 91 and 425 calendar days and the investigation of  an additional 11 referrals took between 21 and 90 calendar days (see fig.  3). State survey agency officials told us that because of surveyor turnover  and the number of complaints received from all sources, the agency could  not investigate all coroner complaints quickly; CMS has identified  untimely complaint investigations in many other states. Moreover,  Arkansas state survey agency officials told us that they gave priority to  allegations involving residents who were still living in a facility over  comparable allegations involving deceased residents, even though the  coroner’s referrals were accompanied by photos that suggested the  possibility of systemic care problems.
section_title: Predictable Surveys Allow Nursing Homes to Conceal Care Problems
paragraphs: In 1998 and subsequent work, we found that nursing homes could conceal  care problems if they chose to do so because annual state surveys were  often predictable. For example, a home could (1) significantly change its  level of care, food, and cleanliness by temporarily augmenting its staff just  prior to or during the period of the survey and (2) adjust resident records  to improve the overall impression of the home’s care. We believe that the  striking disparity between annual survey findings that failed to identify  serious problems in preventing and treating pressure sores and the  numerous instances of serious pressure sores identified by the coroner is  partly the result of the predictability of annual surveys. In July 2003, we  reported that standard surveys in Arkansas, as well as those nationwide,  continued to be highly predictable.
In 2003, we reported that the timing of 36 percent of Arkansas’s most  recent surveys (34 percent nationwide) could have been predicted by  nursing homes. We considered nursing home surveys predictable if  homes were surveyed within (1) 15 days of the 1-year anniversary of their  prior survey (28 percent for Arkansas) or (2) 1 month of the maximum   15-month interval between standard surveys (8 percent for Arkansas).  The director of the Arkansas state survey agency acknowledged that the  predictability of the state’s standard surveys allowed homes to mask  problems by having more staff on hand during surveys. On the basis of the  finding in our 2003 report, she told us she has tried to reduce survey  predictability, in part by using computer programs to vary the timing of  homes’ surveys. For 168 of Arkansas’s approximately 236 nursing homes  surveyed since our last report (August 1, 2003, through June 22, 2004),   22.6 percent of the surveys were predictable.
In 1998, we recommended that CMS segment the standard survey into  more than one review throughout the year, simultaneously increasing state  surveyor presence in nursing homes and decreasing survey predictability.  Although CMS disagreed with segmenting the survey, it did recognize the  need to reduce predictability. CMS directed states in 1999 to (1) begin at  least 10 percent of standard surveys outside the normal workday (either  on weekends, early in the morning, or late in the evening) and (2) avoid  scheduling, if possible, a home’s survey for the same month of the year as  the home’s previous standard survey. We reported previously that CMS’s  focus on so-called staggered surveys, though beneficial, was too limited to  reduce survey predictability.
section_title: Survey Methodology Weaknesses and Misleading Medical Records Contribute to Undetected Care Problems
paragraphs: Our 1998 work on California nursing homes revealed that surveyors may  overlook significant care problems because (1) the federal survey protocol  they follow does not rely on an adequate sample for detecting potential  problems and their prevalence and (2) some resident medical records omit  or contain misleading information. Because CMS has not yet completed  the redesign of the survey methodology, nearly 7 years later Arkansas  surveyors, as well as those in other states, still rely on a flawed survey  methodology to detect resident care problems. As noted earlier, omissions  and contradictions in the decedents’ medical records, as well as the  coroner’s photos, sometimes raised questions about whether appropriate  care had been provided in cases the state survey agency did not  substantiate.
Our 1998 report recommended that CMS revise federal survey procedures  by using a stratified random sample of resident cases and reviewing  sufficient numbers and types of resident cases. Under development since  1998, CMS’s redesigned survey methodology is intended to more  systematically target potential problems at a home and give surveyors new  tools to better document care outcomes and conduct on-site  investigations. Use of the new methodology could result in survey findings  that more accurately portray the quality of care provided by a nursing  home to all residents. CMS officials told us that the new methodology  would be piloted in 2005 in conjunction with an evaluation that compares  its effectiveness with that of the current survey methodology. Our work in  Arkansas suggested the existence of sampling problems, underscoring the  importance of implementing the revised survey methodology. For  example, three residents with serious pressure sores who died on March 7,  March 29, and April 3, 2000, and were the subject of coroner referrals were  not included in the resident sample for one home’s March 3, 2000, annual  standard survey. The survey failed to identify any pressure sore or other  quality of care deficiencies. It is difficult to understand how residents with  such serious care problems could have been omitted from the survey. In  addition, the extent of the physical deterioration of some decedents where  the MFCU identified neglect but the state survey agency did not find  similar problems for current residents also raises a question about state  survey agency sampling methodology because the seriousness of  decedents’ conditions suggested that care problems were systemic.
In some coroner referrals that the state survey agency did not substantiate,  surveyors noted that the medical records indicated that care had been  provided. However, the MFCU found omissions and contradictions in  decedents’ medical records, including missing entries and late entries that  were “too many and questionable.” The medical record for one decedent  showed the resident’s height as 10 inches different from the height in her  nutritional assessment (height is an important factor in determining a  resident’s appropriate weight). Since surveyors screen residents’ medical  records for indicators of improper care, misleading or inaccurate data may  result in care deficiencies being overlooked. We also found evidence that  Arkansas surveyors took medical records at face value even when these  records were contradicted by color photos that documented decedents’  physical conditions. For example, our expert consultant found that the  coroner’s photos of one decedent clearly showed that dead tissue around  pressure sores had not been removed even though the state surveyor cited  medical records indicating such care was provided just 11 days before the  resident’s death. The coloration of the same decedent’s skin also  suggested that she was left in her own waste for extended periods.  However, the surveyor noted that the family’s concern about staff’s  unresponsiveness to resident call lights was not substantiated because  residents who were interviewed said that staff response was prompt.
section_title: Under CMS Policy, Nursing Homes Not Always Held Accountable for Past Noncompliance
paragraphs: In our current work, we found that many Arkansas nursing homes with  coroner referrals escaped accountability for providing poor care when the  state survey agency investigated the neglect of nursing home residents  after their deaths. We believe that CMS’s vague policy on past  noncompliance is partly responsible for this situation. First, the Arkansas  state survey agency did not always cite past noncompliance when  warranted. For example, the MFCU found that nursing homes had  neglected eight decedents referred by the coroner but the state survey  agency either cited no deficiency for the decedents, cited a deficiency at a  level lower than actual harm for the predominant care problems identified  by the coroner, or found the referrals to be unsubstantiated. According to  state survey agency officials, care problems similar to those of the  decedents were not identified in a sample of current residents and, under  CMS policy, the decedents’ care problems were assumed to have been  identified and corrected by the home. Second, for the one coroner referral  that the Arkansas state survey agency did cite for past noncompliance, the  home was not required to prepare a plan of correction because no current  deficiency was identified. When past noncompliance is identified, it is  recorded in OSCAR and on CMS’s Nursing Home Compare Web site simply  as past noncompliance without additional information on the specific  deficient practice(s), such as failure to prevent and treat pressure sores.
Moreover, CMS policy discourages citing past noncompliance unless the  violation is egregious. Although CMS officials indicate that “egregious”  includes noncompliance related to a resident’s death, the term is  undefined and is not used in CMS’s scope and severity grid, which defines  serious deficiencies as actual harm or immediate jeopardy. According to  CMS officials, the objective of its survey policy is to focus surveys on  current residents and care problems rather than on poor care provided in  the past. We question CMS’s assumption that if a decedent’s care problem  is not found to affect other residents at the time of a complaint  investigation, it was identified earlier by the home and corrected. On the  basis of our past work, it is also possible that the state survey agency’s  complaint investigation missed serious care issues. CMS and Arkansas  state survey agency officials agreed that the poor physical condition of the  decedents referred by the coroner suggested the existence of systemic  care problems.
section_title: Conclusions
paragraphs: The Arkansas law requiring coroner investigations of nursing home  residents’ deaths has helped to demonstrate that a small number of  residents died in deplorable physical condition. The Arkansas law also  confirmed the systemic weaknesses in state and federal oversight of  nursing home quality of care that we identified in prior reports. On the  basis of our prior work, we believe it is likely that serious care problems  similar to those identified by the Pulaski County coroner exist in other  Arkansas counties and in other states. Despite Arkansas’s annual standard  surveys and intervening complaint investigations, the negligent care  provided to some residents before they died was never detected. In  addition, complaint investigations initiated by the state survey agency in  response to coroner referrals often failed to cite deficiencies for serious  care problems that, according to the MFCU’s investigations and our expert  consultant, constituted or suggested neglect. Even when the Arkansas  state survey agency found the neglect to be egregious, it did not hold the  nursing home accountable by citing a little used deficiency known as past  noncompliance.
We believe that CMS’s policy on past noncompliance is flawed for three  reasons. First, the policy involves considerable ambiguity. CMS does not  define what constitutes an egregious violation yet implies that one exists  where care problems relate to a resident’s death, which is often difficult to  demonstrate without an autopsy. Moreover, the term egregious is not  clearly related to CMS’s scope and severity grid, which defines serious  deficiencies as actual harm or immediate jeopardy. Second, CMS’s policy  on past noncompliance does not hold homes accountable for negligence  associated with a resident’s death unless similar care problems are  identified for current residents. CMS assumes that (1) similar care  problems were not found because they have already been identified and  corrected by the home and (2) the state survey agency did not miss the  deficiency for current residents. However, our prior work demonstrated,  and our work in Arkansas confirmed, that (1) nursing home records can  contain misleading information or omit important data, making it difficult  for surveyors to identify care deficiencies during their on-site reviews and  (2) states’ surveys of nursing homes do not identify all serious  deficiencies, such as preventable weight loss and pressure sores. Third,  the policy obscures the nature of the specific care problem, such as  avoidable pressure sores, because the only deficiency reported in OSCAR  and to the public on CMS’s Nursing Home Compare Web site is “past  noncompliance.” We believe that the goal of preventing resident neglect by  requiring nursing homes to comply with federal quality standards is  inconsistent with a policy that discourages citing deficiencies because the  harm was simply not egregious enough or was potentially missed for  current residents.
section_title: Recommendations for Executive Action
paragraphs: We recommend that the Administrator of CMS revise the agency’s current  policy on citing deficiencies for past noncompliance with federal quality  standards by taking the following two actions:    hold homes accountable for all past noncompliance resulting in harm to  residents, not just care problems deemed to be egregious, and    develop an approach for citing such past noncompliance in a manner that  clearly identifies the specific nature of the care problem both in the  OSCAR database and on CMS’s Nursing Home Compare Web site.
section_title: Agency and State Comments and Our Evaluation
paragraphs: We provided a draft of this report to CMS; the Arkansas Department of  Human Services, Office of Long Term Care (the state survey agency); the  Arkansas MFCU; and the Pulaski County coroner. We received written  comments from CMS and the survey agency, and oral comments from the  coroner. The MFCU stated that it did not have comments. CMS concurred  with our recommendations to revise its policy on citing deficiencies for  past noncompliance and also identified more than a dozen additional  initiatives it plans to take to address shortcomings in the nursing home  survey process. CMS commented that the focus of its initiatives, such as  additional guidance on the scope and severity of deficiencies, would be  broad, in effect supporting our conclusion that the shortcomings we  identified were systemic and not limited to Arkansas. CMS and the state  survey agency raised concerns about (1) the discrepancy we reported  between the number of referrals the coroner said he made (86) and the  number the survey agency said it received (36) and (2) the relevance of  survey predictability to complaint investigations based on coroner  referrals. In addition, the state survey agency commented that we had  understated the number of investigations it actually conducted. (CMS’s  comments are reproduced in app. III, and the state survey agency’s  comments are reproduced in app. IV.) Our evaluation of CMS, survey  agency, and coroner comments covers the following six areas: CMS’s past  noncompliance policy, shortcomings in state survey agency investigations,  lessons from implementing the Arkansas law, the number of coroner  referrals and survey agency investigations, survey predictability and  methodology redesign, and the impact of the Arkansas law.
subsections: section_title: CMS Policy on Past Noncompliance
paragraphs: CMS agreed with our recommendations to revise its past noncompliance  policy. We found that some nursing homes were not held accountable for  serious deficiencies, even though some coroner referrals were  substantiated, because of flaws in CMS’s policy governing past  noncompliance. Following a planned review of the policy, CMS indicated  that it would (1) clarify expectations for the manner in which state survey  agencies should address past deficiencies that have only recently come to  light, (2) further define important terms, particularly egregious, (3) ensure  that the specific nature of the care problems was identified in OSCAR, and  (4) strengthen criteria for determining whether a nursing home had  actually taken steps to address deficiencies that contributed to past  noncompliance. CMS did not indicate whether it also planned to identify  the specific nature of deficiencies associated with past noncompliance on  its Nursing Home Compare Web site, but we continue to believe that  posting such information would provide valuable assistance to consumers.
section_title: Shortcomings in State Survey Agency Investigations Nationwide
paragraphs: Because of the seriousness of the shortcomings identified in our report,  CMS sent a clinical fact-finding team to Arkansas for 3 days after receiving  a draft of our report. The CMS clinical team found that some, but not all,  of the referrals for which lower-level deficiencies were cited should have  received a higher-level severity rating. In addition, from among six coroner  referrals that were not substantiated by the survey agency, the team  believed two should have been substantiated, a higher disparity rate than  CMS said it has typically found for Arkansas surveys in general. As a result  of its team’s visit, CMS concluded that additional training and clarification  of its guidance were warranted, including (1) increased training for state  surveyors in determining the appropriate scope and severity of  deficiencies as well as the development of additional CMS guidance and  analysis of patterns in state deficiency citations and (2) the development  of an advanced course in complaint investigations to be piloted in  Arkansas and evaluated for potential expansion and replication  nationwide. CMS noted that these initiatives would be applied broadly, a  recognition that the shortcomings we identified were systemic and not  limited to Arkansas.
While we fully support CMS’s new initiatives, timely and sustained follow- up to ensure effective implementation is critical; earlier CMS initiatives to  address these same problems were not timely or were ineffective. We  reported in July 2003 that CMS began a complaint improvement project in  1999 but did not provide more detailed guidance to states until almost 5  years later. Similarly, we reported that CMS began developing more  structured guidance for surveyors in October 2000 to address  inconsistencies in how the scope and severity of deficiencies are cited  across states, but the first installment on pressure sores had not yet been  released as of September 2004. Our 2003 report also noted that CMS  began annual reviews of a sample of deficiency citations from each state in  October 2000 to identify shortcomings and the need for additional training,  but CMS’s recognition that additional guidance and training are required  raises a question about the sufficiency and effectiveness of these reviews.  Furthermore, we believe that other factors may be contributing to survey  shortcomings. Our 2003 report noted that some state officials cited  inexperienced surveyors, the result of a high turnover rate, as a factor  contributing to the understatement of serious quality of care deficiencies.
CMS commented that the photos conveyed from the coroner’s office were  graphic, serious, and require careful investigation. The CMS clinical team  found that the photos were very helpful in a number of investigations. We  agree with CMS’s view that the photos alone do not represent sufficient  evidence to render a conclusion that there was poor care, neglect, or  avoidable outcomes, or that the nursing home caused the death. On the  basis of its visit to Arkansas, the CMS clinical team concluded that not all  referred cases could be substantiated with the photos, medical records,  and other information available to it; as we noted in the report, our expert  consultant reached the same conclusion on two of the seven cases she  reviewed. We nevertheless continue to believe that the state survey agency  at times appeared to dismiss photographic evidence of potential neglect  and to rely instead on observations of and interviews with current  residents. In response to our findings, CMS said it would study the issues  involved in the use of photos and would issue additional guidance for use  by state survey agencies.
section_title: Lessons from Implementing Arkansas’s Law on Nursing Home Deaths
paragraphs: CMS made a number of observations about lessons from the Arkansas  experience that would improve the effectiveness of mandatory reporting  systems, such as the coroner referrals required by the Arkansas law. These  lessons related to the implementation of the Arkansas law by local  coroners and the quality and timeliness of referrals made by the Pulaski  County coroner. We agree that these factors are important to the ability of  state survey agencies to promptly and effectively complete their own  investigations based on coroner referrals of potential neglect. However,  because we lack the authority to evaluate the implementation of state  laws, we excluded such an analysis from the scope of our work. We do  have the authority to evaluate the performance of federally funded  entities—such as the state survey agency and the MFCU—that are  responsible for ensuring that Medicare and Medicaid nursing home  residents receive quality care, and we therefore focused our work on how  these entities responded to the cases referred to them.
In particular, CMS highlighted the lack of referrals from most Arkansas  coroners and the processes followed by coroners, primarily the Pulaski  County coroner, in making referrals to the state survey agency. During our  interviews, the Pulaski County coroner and MFCU officials demonstrated  their awareness of the absence of an enforcement mechanism in the state  law to ensure that nursing homes and coroners comply with the law; the  Pulaski County coroner told us that he intends to pursue this issue with  the state legislature. According to CMS, the quality of the documentation  provided by coroners did not conform to key principles of forensic  science, such as embedded photo dating and subject identification, photo  scale metrics and color charting, and interviews with residents’ physicians.  While the coroner referrals may have lacked these features, the referral  packages we examined clearly identified the decedents, the time the  coroner’s office was notified of the deaths, and the time the coroner’s staff  arrived at the homes. It is also clear from the documentation that the  photos were taken shortly after death. Requiring such a level of forensic  evidence from the coroner substantially exceeds the burden of proof the  state survey agency requires for other complaints filed, which is how the  coroner referrals are treated. The coroner referrals are intended to be the  starting point for the state’s investigation, not a substitute for its own  thorough investigation.
Both CMS and the state survey agency expressed concern about the  elapsed time between the dates of death and the receipt of coroner  referrals by the survey agency. In particular, they noted that our analysis  excluded five referrals the coroner made in 2004 that related to deaths in  2003, with the elapsed times from the deaths to receipt of the referrals  ranging from 222 to 400 days. We excluded these five referrals because  they had not yet been referred when we completed our data collection for  this report, which covered referrals for the period July 1999 through  December 2003. In principle, we agree with CMS’s view that the value of  a timely investigation by the state survey agency can be influenced by the  length of time associated with referrals, even though we found that the  coroner’s referral of several cases up to 4 months after the residents’  deaths did not appear to have handicapped the investigations. For  example, the state survey agency substantiated three coroner referrals  with deficiencies at the actual harm and immediate jeopardy level even  though the referrals were not received for between 65 and 106 calendar  days after residents’ deaths. Although the survey agency did not  substantiate one coroner referral that was not received until 102 days after  the resident’s death, the MFCU found neglect. For the 36 referrals the  survey agency said it received from the coroner for the period we  analyzed, the average elapsed time from the date of death until the coroner  made his referral was 38 days (ranging from zero to 180 days), whereas the  average elapsed time from the date the survey agency received the referral  until it initiated its investigation was 46 days (ranging from zero to 425  days). Notwithstanding these elapsed times for coroner referrals and  state investigations, CMS commented that it would study its priority  criteria for complaint triage and refine its policy with regard to the  treatment of and response to complaints.
section_title: Number of Coroner Referrals and State Survey Agency Investigations
paragraphs: Both CMS and the state survey agency questioned the validity of the  number of Pulaski County coroner referrals, commenting that we lacked  independent verification of the number actually referred; they also  believed that the report’s language suggested referrals had been received  but not investigated. We revised the report to make it clear that the  coroner told us he had referred 86 cases of suspected neglect of deceased  nursing home residents to the state survey agency and the MFCU for  investigation (and, as noted below, we reviewed the related case  documentation for each of the 86 referrals). We also revised the report to  clarify that the state survey agency investigated the 36 coroner referrals  that it told us it had received. CMS asserted that the coroner was unable  to provide its clinical team with a list of his referrals; however, CMS’s  comments do not reflect that the coroner’s case files were not automated.  We compiled a list of the 86 referrals ourselves. Our list was based on  documentation provided by the coroner for each of the cases he told us he  referred, including a narrative summary describing the suspected neglect,  copies of decedents’ medical records, autopsy reports, and photos  documenting the decedents’ conditions. Although the state survey agency  and the MFCU told us that they did not receive all 86 coroner referrals, we  believe that the MFCU’s receipt of almost three fifths of the coroner’s  referrals (compared with the state survey agency’s receipt of fewer than  half) provides independent corroboration that the Pulaski County coroner  made more than 36 referrals during the 4.5-year period we examined. As  noted in the report, the coroner was instrumental in securing passage of  the law, a fact that is inconsistent with the suggestion that the coroner  withheld referrals. To address the disparity in the number of referrals the  coroner told us he made and the number the state survey agency and the  MFCU told us they received, the coroner began requiring signed receipts  in March 2004, a practice reflected in our draft report.
The state survey agency commented that we had understated the number  of investigations of nursing home deaths it had conducted. The agency  identified 22 investigations that, in most cases, were based on the receipt  of a complaint from individuals other than the coroner.
We excluded 9 of these 22 investigations because they were conducted  prior to the residents’ deaths. For example, one complaint of alleged rape  of a 91-year-old resident was filed by a hospital that found the resident had  a sexually transmitted disease. The complaint was not substantiated. The  coroner’s investigation of the resident’s death 5 months later resulted in a  referral based on seven serious pressure sores on the decedent’s feet,  lower back, and hips, a problem that was not noted during the  hospitalization.
We revised our analysis to include 1 of the 22 cases because the coroner  confirmed that he had indeed made the referral. Thus, we adjusted the  number of coroner referrals from 85 in the draft report to 86 in the final  report. We also revised the number of referrals the state survey agency  said it received from 35 to 36. We confirmed that this additional referral  was not received or investigated by the MFCU.
For 7 cases, we determined that the allegations in the non-coroner  complaints were similar to the concerns raised by the coroner’s  investigations and have added footnotes in the appropriate sections of the  report, depending on whether the investigations substantiated (2  complaints) or did not substantiate (5 complaints) the complainants’  allegations.
For the remaining 5 cases, we made no changes in the report. In one case,  the survey agency’s complaint investigation focused on an issue different  from the suspected neglect identified by the coroner. In four other cases,  the agency included the decedents’ records in its resident samples during  standard surveys. The decedents were not included in any deficiencies  cited during these surveys and, importantly, the surveyors lacked the  coroner’s photos of pressure sores, which would have been particularly  useful in raising questions about the care provided as documented in the  decedents’ medical records.
section_title: Survey Predictability and Methodology
paragraphs: Both CMS and the state survey agency questioned the relevance of survey  predictability to complaint investigations resulting from coroner referrals  and suggested we delete this analysis from the final report. Neither  organization commented on our assessment of the impact of survey  methodology weaknesses and misleading medical records on detecting  quality-of-care problems. We retained this analysis in the final report  because we believe the issues of survey predictability and methodology  are relevant to state survey complaint investigations of coroner referrals.  Our 1998 and subsequent work found that predictable surveys allowed  homes so inclined to (1) significantly change the level of care, food, and  cleanliness by temporarily augmenting staff just prior to or during a  survey, and (2) adjust resident records to improve the overall impression  of the home’s care. We also reported in 1998 that surveyors may overlook  significant care problems during annual surveys because of survey  methodology weaknesses and omissions or misleading information in  resident medical records.
Although the predominant care problem identified in 67 percent of the  coroner’s referrals involved serious pressure sores, most of the nursing  homes referred had not been cited for a pressure sore deficiency at the  actual harm level or higher on any of their previous four standard surveys.  We believe that the striking disparity between annual survey findings and  the predominant care problems identified by the coroner relates to the  predictability of annual surveys, weaknesses in survey methodology, and  misleading medical records—all of which contribute to the phenomenon  of undetected care problems. Our work in Arkansas suggested the  existence of sampling problems in a home whose annual survey failed to  detect any quality-of-care problems, even though three residents, all with  serious pressure sores, died within 1 month. The fact that none of these  residents was included in the nursing home’s annual standard survey  underscores the importance of implementing a revised survey  methodology that CMS has had under development for 7 years. Our report  also provides several examples where misleading medical records  contributed to the failure of the Arkansas state survey agency to detect  care problems that the MFCU or our expert consultant identified and were  obvious in some of the coroner’s photos of decedents.
CMS further commented that our analysis of survey predictability  resurrected prior reports and recommendations to which CMS has  previously responded and that we failed to acknowledge CMS and state  survey agency progress in reducing survey predictability. We believe that  CMS’s comments are inaccurate. In our 1998 report, we recommended  segmenting the survey into more than one review throughout the year to  reduce survey predictability. CMS responded to this recommendation by  requiring that 10 percent of state annual surveys be conducted on  weekends, at night, or early in the morning. Despite CMS’s introduction of  “off hour” surveys, we reported in 2003 that about one-third of state  surveys remained predictable (36 percent in Arkansas). Contrary to CMS’s  comments, the draft report did acknowledge that Arkansas appeared to be  making progress in reducing survey predictability through the use of  computer programs to vary the timing of homes’ surveys.
section_title: Impact of the Arkansas Law
paragraphs: In oral comments, the Pulaski County coroner indicated that our report  was fair and accurate. He also told us that he believes the law has had a  significant, positive impact on the quality of care provided to nursing  home residents in Pulaski County. In particular, he rarely finds decedents  with serious pressure sores and the pressure sores he does find are not as  serious as those in earlier referrals. He also cited the declining number of  referrals—only six 2003 resident deaths were referred compared to 18 in  2002. He also provided technical comments that we incorporated as  appropriate.
As arranged with your offices, unless you publicly announce its contents  earlier, we plan no further distribution of this report until 30 days after its  issue date. At that time, we will send copies of this report to the  Administrator of the Centers for Medicare & Medicaid Services and  appropriate congressional committees. We also will make copies available  to others upon request. In addition, the report will be available at no  charge on the GAO Web site at http://www.gao.gov.
Please contact me at (202) 512-7118 or Walter Ochinko, Assistant Director,  at (202) 512-7157 if you or your staffs have any questions. GAO staff who  made key contributions to this report include Jack Brennan, Lisanne  Bradley, Patricia A. Jones, and Elizabeth T. Morrison.
section_title: Appendix I: Coroner Referrals for Pressure Sores and the Seriousness of Deficiencies Cited on Standard Surveys
section_title: Appendix II: Coroner Referrals That the State Survey Agency Reported as Not Received, Substantiated, or Not Substantiated
section_title: Appendix III: Comments from the Centers for Medicare & Medicaid Services
subsections: section_title: A portion of CMS’s response was based on tables presented in attachment 1 to its comments. Because the tables did not accurately reflect the coroner cases discussed in our report, CMS submitted an amended attachment 1, which we have substituted for the original attachment 1. CMS, however, did not make corresponding changes on pages 6 and 7 of its letter. We have marked the text on those pages in the letter where the information in the amended attachment 1 supercedes data presented in the letter.
section_title: Related GAO Products
paragraphs: Nursing Home Fire Safety: Recent Fires Highlight Weaknesses in  Federal Standards and Oversight. GAO-04-660. Washington, D.C.: July 16,  2004.
Nursing Home Quality: Prevalence of Serious Problems, While  Declining, Reinforces Importance of Enhanced Oversight. GAO-03-561.  Washington, D.C.: July 15, 2003.
Nursing Homes: Public Reporting of Quality Indicators Has Merit, but  National Implementation Is Premature. GAO-03-187. Washington, D.C.:  October 31, 2002.
Nursing Homes: Quality of Care More Related to Staffing than Spending.  GAO-02-431R. Washington, D.C.: June 13, 2002.
Nursing Homes: More Can Be Done to Protect Residents from Abuse.  GAO-02-312. Washington, D.C.: March 1, 2002.
Nursing Homes: Federal Efforts to Monitor Resident Assessment Data  Should Complement State Activities. GAO-02-279. Washington, D.C.:  February 15, 2002.
Nursing Homes: Success of Quality Initiatives Requires Sustained  Federal and State Commitment. GAO/T-HEHS-00-209. Washington, D.C.:  September 28, 2000.
Nursing Homes: Sustained Efforts Are Essential to Realize Potential of  the Quality Initiatives. GAO/HEHS-00-197. Washington, D.C.: September  28, 2000.
Nursing Home Care: Enhanced HCFA Oversight of State Programs  Would Better Ensure Quality. GAO/HEHS-00-6. Washington, D.C.:  November 4, 1999.
Nursing Homes: HCFA Should Strengthen Its Oversight of State Agencies  to Better Ensure Quality of Care. GAO/T-HEHS-00-27. Washington, D.C.:  November 4, 1999.
Nursing Home Oversight: Industry Examples Do Not Demonstrate That  Regulatory Actions Were Unreasonable. GAO/HEHS-99-154R. Washington,  D.C.: August 13, 1999.
Nursing Homes: HCFA Initiatives to Improve Care Are Under Way but  Will Require Continued Commitment. GAO/T-HEHS-99-155. Washington,  D.C.: June 30, 1999.
Nursing Homes: Proposal to Enhance Oversight of Poorly Performing  Homes Has Merit. GAO/HEHS-99-157. Washington, D.C.: June 30, 1999.
Nursing Homes: Complaint Investigation Processes in Maryland.  GAO/T-HEHS-99-146. Washington, D.C.: June 15, 1999.
Nursing Homes: Complaint Investigation Processes Often Inadequate to  Protect Residents. GAO/HEHS-99-80. Washington, D.C.: March 22, 1999.
Nursing Homes: Stronger Complaint and Enforcement Practices Needed  to Better Ensure Adequate Care. GAO/T-HEHS-99-89. Washington, D.C.:  March 22, 1999.
Nursing Homes: Additional Steps Needed to Strengthen Enforcement of  Federal Quality Standards. GAO/HEHS-99-46. Washington, D.C.: March  18, 1999.
California Nursing Homes: Federal and State Oversight Inadequate to  Protect Residents in Homes With Serious Care Problems. GAO/T-HEHS- 98-219. Washington, D.C.: July 28, 1998.
California Nursing Homes: Care Problems Persist Despite Federal and  State Oversight. GAO/HEHS-98-202. Washington, D.C.: July 27, 1998.