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Trudy
Lieberman, Director
Center For Consumer Health Choices
Sambhavi Cheemalapati, Research Librarian
June 2003
Table
of Contents
Introduction and Overview
Key Findings from the Nursing Home Watch List
Key Findings from the State Penalty Survey
Implications for Consumers and Policymakers
What's A Family to Do?
Methodology
List of Tables
About Consumers Union
Consumers Union, publisher of Consumer Reports, is an independent, nonprofit testing and information organization serving only consumers. It is a comprehensive source for unbiased advice about products and services, personal finance, health and nutrition, and other consumer concerns. CU's ratings may not be used for commercial purposes. For more information on Consumers Union, visit www.consumerreports.org
About the Consumers Union Center
for Consumer Health Choices
The Center for Consumer Health choices exists to illuminate the need for change
in the health care system, to equip consumers and other stakeholders to participate
in dialogue and debate concerning health policy and to enable consumer choice
by providing evaluations of insurers, providers, and products to drive quality
improvements in health care.
The Center would like to thank The Commonwealth Fund for its financial support for the Nursing Home Watch List.
Center for Consumer Health Choices
Consumers Union
101 Truman Avenue
Yonkers, NY 10703
E-mail: cchc@cu.consumer.org
For the Nursing Home Watch List:
click here.
"How Good Are Your State's Nursing Homes?" report available
at: www.consumersunion.org
HOW GOOD ARE YOUR'S STATE'S
NURSING HOMES?
INTRODUCTION AND OVERVIEW
Some 1.6 million people live in the nation's 17,000 nursing homes. Most of these
residents have significant limitations, both cognitive and physical. Most suffer
from three or more chronic diseases. About half have survived any relatives
who lived near their nursing home. Nursing home residents are extremely vulnerable
and dependent on the care that their facility provides. Over the years many
of the nation's nursing facilities have delivered substandard care that has
jeopardized residents' health and safety. In response to historical abuses recurring
in nursing facilities, Congress enacted provisions in the Omnibus Budget Reconciliation
Act of 1987 (OBRA 87) intended to correct many of the problems.
OBRA 87 reformed the regulatory process by setting standards and improving both the inspection process and the enforcement system. More than 95 percent of all facilities participate in the Medicare or Medicaid programs and thus fall under the federal regulations set by the Centers for Medicare and Medicaid Services (CMS). States also play an important role in the regulation of nursing homes. States conduct inspections on behalf of CMS and propose enforcement penalties when nursing homes fail to comply with federal rules. States also have independent authority to regulate and penalize homes.
Studies have shown that reforms enacted in OBRA 87 have improved quality of care somewhat, particularly in the years immediately after the law was passed. For example, many nursing facilities no longer use physical restraints or psychotropic drugs thus improving the quality of life for many residents. However, recent studies, Congressional audits, and hearings by the U.S. Senate Special Committee on Aging have revealed continuing serious problems. Studies have found widespread malnutrition, inadequate pain management, and failure to prevent pressure ulcers and contractures. (A contracture is a permanent tightening of muscle, tendons, ligaments, or skin that prevents normal movement of the associated body part, most commonly caused by scarring and lack of use, due to immobilization or inactivity.)
Quality of care problems continue to plague the nation's nursing homes, and some of them may be attributed to the difficulty of obtaining and retaining competent staff as well as to reimbursement from the states and federal government that facilities deem too low to provide good care. Recent studies by the General Accounting Office (GAO), the Inspector General, and many researchers also point to weak enforcement of standards as a major contributor to poor quality care. Long-term care ombudsmen, the GAO, and consumer advocates note that the problem of poor care continues. They cite the "yo-yo" pattern of compliance in which facilities correct deficiencies one year and have recurring problems the next.
In recent years, the federal government and others have suggested that a market-based approach to regulation might be best to ameliorate the quality problems found in nursing facilities. The theory is that if families knew which facilities were the worst, they would avoid them. In order to attract new residents, facilities would do try to do a better job caring for their current residents.
Consumers Union was one of the first groups to present information on nursing home performance. In 1995, Consumer Reports published ratings of nursing homes in the U.S. Those ratings were based on data generated from the annual surveys of facilities and reported in the CMS Online Survey and Certification Reports, also known as OSCAR. Consumer Reports also examined the effect of ownership on quality and found that not-for-profit facilities affiliated with religious organizations ranked higher than those affiliated with for-profit, multi-facility organizations-in other words, nursing home chains. In 1996, The Commonwealth Fund and the Robert Wood Johnson Foundation funded Consumers Union to produce a book The Consumer Reports Complete Guide to Health Services for Seniors. The book, published in late 2000, introduced the Consumers Union Nursing Home Watch List. The list identified approximately 10 percent of nursing homes in each state whose inspection reports raise questions in CU's judgment about the quality of care delivered to residents. (See page 12 for a description of methodology.) A second Watch List was published on ConsumerReports.org in late 2001, and a third was published online in late 2002.
The aim of the Nursing Home Watch List is to warn consumers about nursing homes, which CU judged to put consumers at risk of receiving questionable care, and give them objective guidance for avoiding certain facilities. It is also intended to publicly name facilities deemed to have a poor pattern of performance, with the expectation that the facilities would not want to be on the list, and would strive to improve the quality of care they deliver.
With three years of information available, CU's Center for Consumer Health Choices analyzed the data to identify nursing facilities that had been on all three Watch Lists and those that represented "yo-yo" compliance; that is, they were on the first list and then again on the third. Using the nursing facilities that were on all three Watch Lists and those that were on the list for "yo-yo" compliance as a sample (a total of 368), the Center then looked at whether these homes had received any civil monetary penalty assessed by their state. Fines are only one penalty states can assess. They can also close the home to new admissions, or shut it down entirely, an action many are reluctant to take because of the disruption it causes to residents.
The Centers for Medicare and Medicaid
Services (CMS) has authority to levy fines against nursing homes that receive
Medicare and/or Medicaid funds -- about 17,000 facilities around the country.
Many states send their cases to CMS for additional penalties. The Center for
Consumer Health Choices attempted to find out whether CMS had assessed any fines
against the homes in our sample. We made a request for this information under
the Freedom of Information Act (FOIA) in December 2002. To date, CMS has not
provided us with any information about fines. A letter from CMS in April 2003
indicated that other pending FOIA requests took precedent.
KEY FINDINGS FROM THE NURSING HOME WATCH LIST
An analysis of our 2000-2002
Nursing Home Watch List data shows:
· 290 nursing facilities have been on all three of our watch lists. That represents 17 percent, or nearly one-fifth, of the 1709 facilities that appear on the 2002 Watch List.
· There appears to be a "yo-yo" pattern of compliance for many facilities that have appeared on the Watch List. 78 facilities were on our first watch list published in 2000 in the Consumer Reports Complete Guide to Health Services for Seniors and on our latest one published in 2002.
· There was an increase in the proportion of facilities that were cited for an "immediate jeopardy" deficiency; that is, a deficiency that places residents at immediate risk for being seriously harmed. 5.6 percent of facilities were cited for an "immediate jeopardy" deficiency in 2001 compared to 6.8 percent in 2002.
· The number of states in which 10 percent or more of facilities were cited for immediate jeopardy violations nearly doubled from 2001 to 2002. In 2001, six states (Arkansas, Kentucky, Louisiana, New Mexico, Oregon, and Washington) had more than 10 percent of their facilities with at least one immediate jeopardy citation. In 2002, 11 states (Alabama, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, New Mexico, Oregon, Tennessee, Texas, and Washington) had more than 10 percent of their facilities with at least one immediate jeopardy citation.
· From 2001 to 2002, there was a 41 percent increase in the proportion of facilities that had more than 15 percent of their facilities receiving a citation for giving substandard care to residents. Seventeen states fell into this category in 2001; 24 states did in 2002. Substandard quality of care means a facility delivers care that constitutes either immediate jeopardy to a resident's health or safety, or a pattern of widespread actual harm.
The 17 states in 2001 were: Arkansas, California, Florida, Hawaii, Idaho, Indiana, Kansas, Kentucky, Maine, Michigan, Mississippi, New Hampshire, Ohio, Oregon, South Carolina, Texas, and Washington.
The 24 states in 2002 were: Alaska, Alabama, Arkansas, California, Florida, Hawaii, Idaho, Indiana, Kansas, Kentucky, Louisiana, Maine, Michigan, Mississippi, New Hampshire, New Mexico, Nevada, Ohio, Oregon, South Carolina, Tennessee, Texas, Washington, and the District of Columbia.
· More than 50 percent of the states had more than 30 percent of their facilities cited for poor food sanitation practices.
· 15 percent of all facilities in the Centers for Medicare and Medicaid Services database have received deficiencies in their most recent survey for delivering substandard care.
· Approximately 18 percent of all facilities appearing in the Centers for Medicare and Medicaid Services database have received deficiencies in their most recent survey for accident hazards.
· States that had the highest percentage of nursing homes appearing on all three Watch Lists were: California, Delaware, Georgia, Minnesota, Montana, Nebraska, New Mexico, Pennsylvania, Vermont, and Wyoming.
KEY FINDINGS FROM THE STATE PENALTY SURVEY
Given that residents in some states appear to be getting poor care, we investigated whether states have the ability to sanction bad facilities, and if they do, are they using those sanctions, particularly civil monetary penalties (CMPs) or fines to encourage facilities to do a better job. We looked at which states could fine facilities and which ones could not. To obtain this data, we contacted all the states by phone and e-mail.
All states except Minnesota responded. Some states have no authority to issue their own fines, and instead rely on the Centers for Medicare and Medicaid Services to sanction bad facilities. States without this authority include: Alabama, Georgia, Mississippi, New Hampshire, New Mexico, North Carolina, North Dakota, Ohio, Utah, Virginia, and Wyoming. (Georgia can fine facilities not covered by federal regulations and neither Nebraska nor the District of Columbia had authority to levy fines during the period we studied.) For the purpose of analysis within these data constraints, we eliminated from our sample facilities in states without authority to assess fines, as well as homes in Minnesota. That left a sample of 276 facilities that were eligible to receive a fine over the entire period.
An analysis of fines levied against these facilities shows:
· 58 percent of the states that could levy fines actually assessed them against the facilities on our lists; nearly 42 percent did not. (Hawaii and Maine had no facilities on our lists, and we don't know about Minnesota since state officials did not respond to our survey.)
· In states with authority to levy fines, 55 percent of the homes on our lists received monetary penalties; 45 percent did not.
· About 2 percent of the facilities received a fine of $100,000 or more.
· While some states like Wisconsin, California, and Texas assess large fines, most states do not. In 1998, the median fine was $4500; in 2002, it was $2825.
· The average fine has increased from $8505 in 1998 to $13,058 in 2002.
· 29 percent of the facilities on our lists that were fined at some point between 1998 and 2002 received a fine of less than $10,000; 52 percent were fined less than $100,000. The average fine per home over the five years we studied was $12,225. The average fine per home per year was $2445.
· The willingness to assess fines varies by geographic region. The Northeast region has the highest percentage of states with the ability to levy civil monetary penalties, but the states collectively used that authority to levy fines against only 33 percent of the homes on our lists, indicating that they rarely penalize questionable facilities. By contrast, the states in the West fined 82 percent of the facilities on our lists.
· The states assessing the highest fines were California, Pennsylvania, Texas, and Wisconsin, which all levied fines totaling more than $100,000 over the five years.
· Arkansas, California, Kentucky, Texas, Washington, and Wisconsin levied the largest fines per home -- at least $11,000 -- over the five years studied.
· States assessing the lowest fines are: New Jersey, Nevada, and Tennessee levied the lowest fine per home-less than $1000---over the five years.
· Connecticut levied the lowest fine of $1. Olympic Health Care Center located at 333 Bidwell Street in Manchester was fined $1 three times over the period.
IMPLICATIONS FOR CONSUMERS AND POLICYMAKERS
· Some nursing home administrators are doing little to correct deficiencies and problems in their facilities.
Nearly one-fifth of the nursing facilities on our 2002 Watch List have been on all of our Watch Lists, indicating that administrators of those facilities and of those on the list for "yo-yo"compliance appear to be doing little to correct deficiencies and problems found by state inspectors working on behalf of the Centers for Medicare and Medicaid Services. As Tables 8 and 9 show, inspectors in some states appear to be finding more serious violations that potentially could harm residents. However, it is hard to say whether those inspectors have become more diligent in citing errant facilities, nursing homes in those states are delivering worse care, or both.
· Given the widespread authority among states to fine questionable nursing facilities, many states are not using it to penalize homes with deficiencies in the care they deliver.
This year we took the analysis a step further examining whether nursing facilities appearing on all of our lists were being fined by state regulators. We chose to look at fines since they are the sanction that causes least disruption to residents and potential residents. Almost half the states had not used this authority to sanction homes that have repeatedly appeared on our lists, and in the states that used the authority, only about half the homes had received any penalty. Furthermore, many of the penalties appear to be "slaps on the wrist." These observations raise questions about facilities delivering questionable care receive any sanctions or are allowed by regulators to continue business as usual. Further research is needed to determine whether penalties and the size of them act as catalysts to improve quality of care nursing home residents receive.
· States and the Federal government make it hard for consumers to learn about penalties assessed against nursing homes, thus keeping consumers in the dark about vital information they should know before placing a loved one in a facility.
As Table 10 indicates, 24 states
that have authority to issue fines do not announce them through press releases
or post them on a web site. The Centers for Medicare and Medicaid Services (CMS)
does not have a publicly available list of penalties assessed against nursing
homes that do not meet their standards for delivering good quality care. Public
information about sanctions against bad facilities apparently is available only
through a Freedom of Information Act (FOIA) request. Needless to say, submitting
a FOIA request is something families who may quickly need to place a loved one
in a facility are not likely to do. Six months after making a Freedom of Information
Act request to CMS, Consumers Union still has not obtained this information.
WHAT'S A FAMILY TO DO?
Families that have time to shop for
a nursing home for a relative should first look at the Consumers Union Nursing
Home Watch List, available on the Web by clicking
here.
If you can, avoid those facilities that have been on all three lists as well
as the list for "yo-yo" compliance. In some areas, particularly rural
locations, there may be few choices for families. Better facilities might be
full, and the only facility accepting new admissions may be one of the homes
on our lists. If you find yourself with that choice, you need to take additional
steps.
· Obtain the state survey report that must be posted in every facility. Some facilities don't make the state report readily available, so you may have to be persistent in finding it. See what deficiencies the facility has been cited for. If the nursing home, for example, has failed to provide adequate hydration for residents, you will have to make sure your relative gets enough fluids to drink. If the facility has been cited because residents have bed sores, you will have to make sure precautions are taken so your relative does not develop them.
· Be extra vigilant and visit the facility often. If you have to use a nursing home where consumers are at high risk for receiving questionable care, you will have to keep close tabs on the facility to make sure your family member is well cared for.
· Get involved in the initial care planning that all facilities are required to do for each resident. Once the plan is in place, make sure that it is followed and when your relative has different needs, make sure the facility administrator knows what they are so the care plan can be appropriately modified.
· Join the family council that most facilities have established. Banding together with other families and speaking up when care is not good can bring positive changes that will improve the quality of life your relative experiences.
WATCH LIST METHODOLOGY
The Watch List consists of at least the 10 percent of the facilities in each state with the highest overall scores. We developed the total scores by adding together the earned penalty points for each of five categories: immediate jeopardy deficiencies; substandard quality of care deficiencies; number of repeat deficiencies; total deficiencies; and receiving a deficiency for not making the state inspection survey available to the public. A facility may acquire up to 100 penalty points, although it is unlikely that any of them would acquire that many.
To determine scores for immediate jeopardy violations, we assigned points based on the date of their state surveys. A deficiency occurring on the most recent survey received four points; a deficiency on the next most recent survey received three points, and so on. After determining the deficiency points for each facility, we ranked the facilities by state. The facility with the most deficiency points received a maximum of 35 penalty points. All other facilities in the state received a proportionate number of penalty points based on the relationship between their number of deficiency points and the most deficiency points in the state. Similar methodology was used for the other categories. The maximum penalty points for substandard quality of care deficiencies was 25; for repeat deficiencies, 15; for total deficiencies, 10; and for having an unavailable survey, 15.
The 2002 Watch List was based on a facility's last four surveys dating from April 1997 through March 2002.
Center for Consumer
Health Choices
Consumers Union
101 Truman Avenue
Yonkers, NY 10703
E-mail: cchc@cu.consumer.org
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