Senators Seek Survey Accountability for SNFs

Last Thursday, Senators Bob Casey (Pennsylvania), Ron Wyden (Oregon), and Chucky Grassley (Iowa) sent a letter to CMS asking that the agency “take immediate steps to strengthen the nursing home oversight system”. Their letter is a follow-up to a report from the Senate Committee on Aging, chaired by Casey, detailing a myriad of problems with the survey and certification system, operated by the states. The full report is available here: UNINSPECTED & NEGLECTED – FINAL REPORT

According to the report, 1 out of 9 SNFs in the nation, haven’t had a survey (annual) in 2 years.  The report also detailed widespread surveyor/staff vacancies across the survey agencies with 32 states have staff vacancy rates exceeding 20%.  Surveys (annual Federal Medicare/Medicaid) are supposed to occur no less than once every 16-18 months.  Good performing facilities may go longer and poor performers (those with a history of extensive violations and/or serious violations) are supposed to be surveyed more frequently.

Facilities classified as SFF (Special Focus Facilities) are supposed to be surveyed twice as often as a facility with good compliance history.  The SFF designation occurs, per CMS, when,

  • A facility has more problems than other nursing homes (about twice the average number of
    deficiencies which, is six to seven deficiencies per annual visit)
  • More serious problems than most other nursing homes (including harm or injury
    experienced by residents), and
  • A pattern of serious problems that have persisted over a long period of time (as measured
    over approximately three years before the date the nursing home was first put on the SFF

The objective of the program is to more closely monitor these facilities with a problematic compliance history and to use various enforcement techniques to improve compliance (money penalties, denial of payment for new Medicare admissions, etc.).  Ultimately, the state agency may force the facility to close for consistent non-compliance, revoking the license.  CMS may also terminate the facility’s provider agreement (participation in Medicare), even if the state does not revoke the license.  Across my many decades in health care/post-acute care and senior housing, I have known many SFFs and yet, not seen many corresponding revocations of licenses and/or provider agreements.  Most of the time, the difficulty in revocation lies with finding new locations for the residents to move to (capacity is not as great as many would think). Details on the SFF program and the current list of facilities within that program are available here: SFF Posting with Candidate List – July 2023

The challenges within the survey and certification system are numerous, for facilities and state agencies alike. Contractors have been used to augment survey agency shortfalls though, the same are expensive and not in number, sufficient to meet the regulatory requirements.  All other provider types, post-acute and hospitals, use a deemed status system whereby compliance if determined via a private accrediting bodies such as Joint Commission (JCAHO) or ACHC (Accreditation Commission for Health Care).  CMS and Congress have not adopted deemed status for SNFs.

The SNF industry is often compared to nuclear energy in terms of the number of regulations and the depth.  SNFs in some states, face federal and state regulations, often with crossover confusion.  The regulatory approach remains principally punitive relying on penalties (civil monetary) as a means of achieving compliance.  Substantial compliance, the buzzword for being in compliance with regulatory requirements, means ALL: somewhat misleading when substantial means essential, not total. Despite increasing penalties and regulations, the overall percentage of poor performing facilities remains consistent.  The violation classified as Immediate Jeopardy (resident at-risk of a serious negative outcome) has risen 102% since 2015.

While Congress calls for more diligence in enforcement, CMS states it remains committed to improving regulatory functions.  State agencies, however, complain that additional resources don’t come forth and it is money that is required to ultimately, improve wages for survey workers.  As with the facilities, COVID caused a huge shift in labor locale, detaching staff form their positions, often into retirement or into other industries.

Perhaps it is time to revisit in total, the regulations for SNFs and the regulatory process. More of the same, more frequent, doesn’t seem to really be effective at improving quality. Without a proper incentive and more resources, it will be difficulty for facility performance to improve.  Consider, a night in a decent motel comes at a higher price than the daily reimbursement rate an SNF will receive under Medicaid, in many states. And notice lately, the motels rarely offer daily housekeeping or any other perks.



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