Federal Nursing Home Enforcement System is Not Punitive: Setting the Record Straight Again

The Department of Health and Human Services' Inspector General recently reported that nearly one third-of nursing home residents suffered an adverse event or other harm during a stay in a Medicare-participating nursing home in August 2011, and that most of the adverse events or other harm were preventable and the result of problems in staffing.[1]  Despite evidence of poor quality of care, the nursing home industry continues calls for a "new examination" of the public oversight process, choosing to believe the oversight process, rather than the care itself, is the problem.[2]

Industry challenges to the federal oversight system are certainly not new.[3]  Nevertheless, in light of the industry's continued attacks on the regulatory system and its call for a new method of nursing facility oversight, it is time to set the record straight again: the regulatory system does not need a "new examination." Rather, it needs to be fully and effectively implemented.

Industry Claims

LeadingAge, the national trade association of not-for-profit nursing facilities, claims that the current enforcement system is punitive and does not serve its primary purpose of protecting residents and ensuring quality.  It proposes what it calls "an objective, third-party examination of the present federal-state nursing home oversight process."[4]  In support of its proposal, the trade association cites the Inspector General's March 2014 report about adverse events and harm, a series of reports by the Government Accountability Office (GAO) "issued over the past decade [that] have found that the present nursing home oversight process is inadequate to ensure quality care and is overwhelming for regulatory agencies to administer,"[5] and its own 2006 report, Broken and Beyond Repair.[6]  LeadingAge describes the regulatory system as "a punitive oversight process, built on fines and punishment"[7] and touts its own initiatives, notably Advancing Excellence in America's Nursing Homes and Quality First, as the solution to poor quality of care.

The Federal Regulatory System Is Not Punitive

The Inspector General's (IG's) recent report identifying extraordinarily poor care for Medicare residents does not support LeadingAge's thesis that the regulatory system is poorly designed and punitive.  Similarly, reports issued by the Government Accountability Office (GAO) offer no support for LeadingAge's claim.  Over the past decade, the IG and the GAO have uniformly reported that it is not the regulatory system itself that is the problem, but rather the implementation of the system, finding, specifically, that implementation has been too ineffectual, too timid, and too poorly used to make a difference.  Not even the reports cited by industry groups claim that the enforcement system has been fully implemented and nevertheless failed to improve care for residents.  GAO report titles graphically make this point: Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Commitment,[8] Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses,[9] Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents,[10] Nursing Home Deaths: Arkansas Coroner Referrals Confirm Weaknesses in State and Federal Oversight of Quality of Care.[11]

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Federal Nursing Home Enforcement System is Not Punitive: Setting the Record Straight Again