Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses in State and Federal Oversight of Quality of Care
Released: 2004-11-17T00:00:00

Letter

Background

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

Standard Surveys

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

Complaint Investigations

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

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

Deficiency Reporting

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

CMS Oversight

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

The Arkansas Law

In July 1999, Arkansas enacted a law requiring nursing homes to immediately report the deaths of residents to the local coroner, regardless of the cause of death. 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.

Coroner Referrals of Suspected Resident Neglect

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

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

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

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

Of the approximately 4,000 nursing home deaths investigated by the Pulaski County coroner from July 1999 through December 2003, the coroner informed us that he identified and referred 86 cases (2.2 percent) of suspected resident neglect to the state survey agency and the MFCU. 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.

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

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

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

Although the Pulaski County coroner told us that he had referred 86 cases of suspected resident neglect from July 1999 through December 2003, Arkansas state survey agency officials said that they received fewer than half (see table 4) and investigated all but one of the referrals they received. 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.

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

With the exception of one home, we found that state survey agency complaint investigations of coroner referrals often failed to cite serious deficiencies for the decedents being investigated, even though over half of the referrals investigated were substantiated. Overall, the state survey agency substantiated 22 of the 36 coroner referrals it investigated at 12 nursing homes. 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.

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

On the basis of the MFCU’s investigations and our own review, we question the state survey agency’s decision not to substantiate more of the coroner’s referrals or forward them to another agency for further investigation. Overall, the state survey agency did not substantiate 14 of the 36 coroner referrals that it investigated. 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.

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

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

Serious Complaints Were Inappropriately Prioritized and Not Promptly Investigated

In 1999, we reported that many survey agencies in the 14 states we examined often assigned inappropriately low investigation priorities to complaints and failed to investigate serious complaints promptly. 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.

Predictable Surveys Allow Nursing Homes to Conceal Care Problems

In 1998 and subsequent work, we found that nursing homes could conceal care problems if they chose to do so because annual state surveys were often predictable. 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.

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

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

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

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

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

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

Moreover, CMS policy discourages citing past noncompliance unless the violation is egregious. Although CMS officials indicate that “egregious” includes noncompliance related to a resident’s death, the term is undefined and is not used in CMS’s scope and severity grid, which defines serious deficiencies as actual harm or immediate jeopardy. 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.

Conclusions

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

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

Recommendations for Executive Action

We recommend that the Administrator of CMS revise the agency’s current policy on citing deficiencies for past noncompliance with federal quality standards by taking the following two actions: hold homes accountable for all past noncompliance resulting in harm to residents, not just care problems deemed to be egregious, and develop an approach for citing such past noncompliance in a manner that clearly identifies the specific nature of the care problem both in the OSCAR database and on CMS’s Nursing Home Compare Web site.

Agency and State Comments and Our Evaluation

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

CMS Policy on Past Noncompliance

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

Shortcomings in State Survey Agency Investigations Nationwide

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

While we fully support CMS’s new initiatives, timely and sustained follow- up to ensure effective implementation is critical; earlier CMS initiatives to address these same problems were not timely or were ineffective. We reported in July 2003 that CMS began a complaint improvement project in 1999 but did not provide more detailed guidance to states until almost 5 years later. 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.

Lessons from Implementing Arkansas’s Law on Nursing Home Deaths

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

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

Both CMS and the state survey agency expressed concern about the elapsed time between the dates of death and the receipt of coroner referrals by the survey agency. In particular, they noted that our analysis excluded five referrals the coroner made in 2004 that related to deaths in 2003, with the elapsed times from the deaths to receipt of the referrals ranging from 222 to 400 days. 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.

Number of Coroner Referrals and State Survey Agency Investigations

Both CMS and the state survey agency questioned the validity of the number of Pulaski County coroner referrals, commenting that we lacked independent verification of the number actually referred; they also believed that the report’s language suggested referrals had been received but not investigated. We revised the report to make it clear that the coroner told us he had referred 86 cases of suspected neglect of deceased nursing home residents to the state survey agency and the MFCU for investigation (and, as noted below, we reviewed the related case documentation for each of the 86 referrals). We also revised the report to clarify that the state survey agency investigated the 36 coroner referrals that it told us it had received. 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.

Survey Predictability and Methodology

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

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

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

Impact of the Arkansas Law

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

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

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

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

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

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

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.

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