The Role of Nursing Homes

In most places in this country, when an elderly (or disabled younger^*) person requires more assistance in the activities of daily living³⁰ than can be provided by immediate family or friends, and especially if the individual is incontinent and/or mentally impaired, he or she may be placed in a nursing home. Also, when an elderly patient, after surgery or an acute medical episode in a hospital, requires rehabilitative/convalescent nursing care for several weeks or months, and neither a rehabilitation hospital bed nor home health services are available in the community, the patient may be discharged to a nursing home. Home health services, congregate housing, domiciliary care, day-care centers, and other professionally organized arrangements exist in some communities and provide long-term care services to elderly persons with disabilities comparable to those found among some residents in nursing homes. Although more of these types of long-term care arrangements are being developed, they still represent collectively only a small fraction of the total person-days of care provided by nursing homes.³¹ In 1985, in most communities in this country, long-term care services for the physically frail and mentally impaired elderly are available only through informal support provided by family or friends or in nursing homes.

Nursing homes must provide care to a very heterogeneous resident population. Some require short-term, intense rehabilitation services. Many others are incontinent, mentally impaired, or so seriously disabled that they require extensive and continuous care for months or years. A small fraction are younger people who are severely disabled. A few are simply very old and very frail but are mentally competent and alert and require only moderate assistance in the activities of daily living and opportunities to participate in activities to satisfy their psychosocial needs.

It is not easy to provide high-quality care to meet such a broad spectrum of physical, medical, and psychosocial needs in one facility. Not all nursing homes admit all of these types of residents, but many do. If, in the future, alternate arrangements become available to provide proper care to some individuals requiring intensive short-term rehabilitation services (for example, stroke patients), and for those requiring on a long-term basis only moderate amounts of support services, nursing homes will not be expected to accommodate these kinds of residents. Nursing home beds are increasingly being filled with long-term, very disabled residents who cannot be cared for anywhere else. Pressures to admit a higher proportion of residents requiring "heavy care" (nursing home jargon referring to residents requiring at least 2-1/2 hours per day of personal and nursing care), many of whom are mentally impaired, has been experienced by nursing homes for some time. These pressures are certain to increase.³²

There were about 15,000 nursing homes in operation in the United States in 1985, with a total of about 1.5 million beds, that are certified to receive patients/ residents under the Medicare and/or Medicaid programs.³³ About 1,000 nursing homes and perhaps 6,000-7,000 "board and care" homes (sometimes referred to as "domiciliary care" facilities) without nursing services are licensed by the states but are not certified to accept Medicare or Medicaid payments.³⁴

There are two types of nursing homes recognized in federal regulations: Skilled Nursing Facilities (SNFs) and Intermediate Care Facilities (ICFs). SNFs are required to be staffed and equipped to care for residents requiring skilled nursing care. ICFs are required to be staffed and equipped to care for residents requiring less nursing care and more personal service care. In practice, the states are not consistent in making distinctions between the two types of nursing homes: some states have almost no SNFs; others have almost no ICFs. Forty-three percent of all nursing homes are ICFs (Appendix D, Table C). The mix of characteristics and service needs of the residents found in SNFs in those states that have few ICFs do not appear to differ significantly from those found in ICFs in states that have few SNFs.

About 70 percent of the certified nursing homes, with 80 percent of the beds, are operated on a for-profit basis. Of the rest, 22 percent of the facilities are operated by nonprofit organizations and the other 8 percent are government-owned and -operated.³⁵ In almost every state, occupancy rates average well over 90 percent, an indication that the demand for nursing home beds is very high. ³⁶ Demographic trends—the rapidly growing numbers of persons over 75 years old, about I in 10 of whom are now in nursing homes—make it certain that the demand for nursing home beds will continue to grow. A recent report projected the population aged 75 and over in the year 2000 to be 17.3 million, a 46 percent increase over the 1985 population of that age group. For people 85 years of age or older, one in five of whom is currently in a nursing home, the numbers are projected to increase from 2.85 million in 1985 to 5.1 million in 2000, an 80 percent increase.³⁷ In 1984, over $30 billion was spent on nursing home care.³⁸ According to Department of Labor estimates, "nursing and personal care" facilities employed over 1 million people in 1982.³⁹

Quality of Care and Quality of Life

Providing consistently high quality care in nursing homes to a varied group of frail, very old residents, many of whom have mental impairments as well as physical disabilities, requires that the functional, medical, social, and psychological needs of residents be individually determined and met by careful assessment and care planning—steps that require professional skill and judgment. This process must be repeated periodically and the care plans adjusted appropriately. Not all nursing homes have enough professional staff who are trained and motivated to carry out these tasks competently, consistently, and periodically. Care is expensive because it is staff-intensive. To hold down costs, most of the care is provided by nurse's aides who, in many nursing homes, are paid very little, receive relatively little training, are inadequately supervised, and are required to care for more residents than they can serve properly. Not surprisingly, the turnover rate of nurse's aides is usually very high—from 70 percent to over 100 percent per year—a factor that causes stress in resident-staff interactions.

Quality of life is intimately related to the quality of resident-staff relationships. Kindness, courtesy, and opportunities to choose activities, food, and mealtimes are involved, as are factors such as privacy for intimate conversations with family or friends. This is difficult when most rooms are semiprivate—as is the case in most nursing homes. Making one's room as home-like as possible is important to many residents, but fire safety codes may limit the use of personal furniture or other belongings. And, it may not be possible to choose or change one's roommate.

Difficult as these problems may be, they can be handled satisfactorily by competent management and staff. In most regions of the country, very good homes can be found—places that are well-managed, where competent, caring staff provide services in a conscientious, sensitive manner; where the dignity, privacy, and human needs of the residents are respected and provided for in thoughtful, even imaginative ways. There are both for-profit and not-for-profit homes in this group. The exact number of very good homes is unknown because no objective, reliable methods exist for making interfacility comparisons of quality. The committee has the impression, obtained primarily from the Health Care Financing Administration's data collected from state reports on nursing home deficiencies, and from discussions with knowledgeable state and federal regulatory agency personnel, that the poor-quality homes outnumber the very good homes.

The Regulatory System

Government regulation of nursing homes has two broad goals: (1) consumer protection, that is, to ensure the safety of residents, the adequacy of care they receive, and that their legal rights are protected; and (2) to control and account for the large public expenditures—mainly Medicaid—used to pay for nursing home care.

Regulation for quality assurance in nursing homes involves three main components, all of which are more or less embodied in both federal and state regulations and are, to some extent, intertwined with one another. They include

1.

developing and promulgating explicit criteria (conditions of participation and standards) governing all aspects of the operation of nursing homes;

2.

developing and applying standard procedures and criteria for monitoring the performance of nursing homes and for determining the extent to which nursing homes are complying with the performance criteria (monitoring procedures include periodic surveys of nursing homes, inspections of care, and investigations of complaints of poor care, neglect, or abuse of residents); and

3.

enforcing compliance with the performance criteria in cases where unsatisfactory performance is found.

Both the federal and state governments are actively involved in regulating nursing homes, but the states' role is much larger. There is no American nursing home regulatory system; there are regulatory systems in 50 states and the District of Columbia with substantial differences in such things as organizational arrangements, resources committed to the licensure and certification process, the size and composition of the survey teams and the amount of time they spend inspecting nursing homes, the extent and nature of the training provided to surveyors, and in organizational ethos, that is, whether the agency is ''enforcement-oriented'' or "compliance-oriented." (This issue is discussed in Chapter 4.)

The federal government prescribes detailed standards that must be met by certified nursing homes, but it is the states that inspect (survey) the nursing homes to determine the extent of compliance with the certification standards. Although the federal government has the authority to "look behind" the states' survey and certification activities, it has never allocated much staff to this function. It conducts look-behind actions in about 3 percent of the facilities annually.

The states license nursing homes, but their licensure standards vary widely. About one-quarter have made them identical to the federal certification standards. About one-quarter have licensure standards that are less stringent than the federal certification standards. About half have more stringent licensure standards. (Appendix C contains a report of a survey of state licensure and certification agencies, conducted by the committee during 1984-1985, from which these data were obtained.)

The states also are responsible for enforcing the standards. The only federal sanction available, until recently, was decertification of a facility—that is, to make the facility ineligible to receive Medicaid or Medicare funds. In 1981 a federal intermediate sanction—suspension of payments for new admissions—was authorized by law. But regulations specifying how this authority should be used had not been issued as of February 1986. Since decertification is a very drastic measure when beds are in short supply, it is seldom invoked. Most states rely on a set of "intermediate" sanctions (fines, suspension of admissions, receiverships) available under their licensure authorities. But availability and use of intermediate sanctioning authority vary widely with states, as do enforcement attitudes and actions. Tolerance of inadequate care also appears to be widespread.

The history of nursing home regulation is relatively brief. Until the passage of the Medicare and Medicaid legislation in 1965, the regulation of nursing homes was entirely a state responsibility. (The history of the development of the federal role in nursing home regulation is summarized in Appendix A.) By 1965, there were hundreds of thousands of residents in nursing homes that did not meet Hill-Burton fire and health standards and were substandard in other respects as well—for example, with poorly trained or untrained staff and few of the necessary services.

The problems were described extensively by the U.S. Senate Special Committee on Aging that conducted several sets of hearings starting in 1963. (See Appendix A.) The initial efforts to set federal standards for both Medicare "extended care facilities" (ECFs) and for Medicaid SNFs quickly exposed the problems. Of 6,000 facilities that applied for certification as ECFs, only 740 could be certified the first year. More than 3,000 others were certified as being in "substantial compliance."

Initially, the federal government planned to use ECF standards for Medicaid SNFs, but this idea was dropped when it became evident that most homes could not qualify. The 1967 amendments to the Medicaid legislation authorized two categories of Medicaid nursing homes: SNFs and ICFs. Development of certification regulations for both categories proved to be very controversial. The Congress, prompted by consumer advocates and some professional groups, wanted stringent standards to protect the patients/residents. Some state governments and the nursing home industry were concerned about costs of stringent standards and the ability of many nursing homes to meet them.

The final Medicaid SNF regulations were issued in 1974 and the ICF regulations in 1976. There was substantial evidence made public throughout this period that very large numbers of nursing homes were not in compliance with federal standards and that most states were not enforcing them. In 1974, the Office of Nursing Home Affairs in the U.S. Department of Health, Education, and Welfare (HEW) began a study of the quality of care in nursing homes. The study found that "the extent to which nursing homes comply with the federal standards of care varies widely."⁴⁰ The study also found that the survey and certification regulations were concerned only with a facility's capacity to provide the required services, not with the quality of the services being provided. Substantial efforts were made to develop new, and to revise, strengthen, and clarify existing, standards in the late 1970s.

In 1980 the HCFA published its proposed new regulations in the Federal Register. These would have, among other things,

1.

combined the SNF and ICF regulations into a single set applicable to all nursing homes;

2.

consolidated all resident care planning requirements into a single condition of participation requiring a resident care management system that called for interdisciplinary teams to assess residents and plan their care; and

3.

elevated the residents' rights standard to a condition of participation.

Only one of the 1980 proposed changes was actually promulgated: the elevation of residents' rights from a standard to a condition. This was signed in January 1981 by the outgoing Secretary of the U.S. Department of Health and Human Services (HHS), but was promptly rescinded by the new Secretary. Thus, the regulations that were issued in the mid-1970s are still in place today despite widespread agreement that they are inadequate.

A recent legal development—the 1984 decision by the Tenth Circuit Court of Appeals in the Smith v. Heckler case⁴¹ —requires the HCFA to modify the federal certification regulations so that they are more effective in assuring quality of care in nursing homes. This lawsuit (originally filed as Smith v. O'Halloran) was filed in 1975 on behalf of a group of nursing home residents in a Denver, Colorado, facility, alleging poor care, violation of residents' rights, and failures by government to monitor the nursing home. Plaintiffs sued the nursing home owners as well as the state health and Medicaid agencies and the Secretary of HEW. During the trial, residents proved a variety of violations of regulatory standards, including theft of personal funds, overuse of psychotropic drugs, inadequate care resulting in decubitus ulcers, inadequate skin and nail care, inadequate bowel assistance, and sanitation problems.

The case against the government agencies was based on the theory that the Medicaid statute requires a federal nursing home survey process that determines whether residents are receiving care they need, not merely whether facilities have the theoretical capacity to provide it. In 1978 the Colorado health and Medicaid agencies took the unprecedented step of agreeing with the nursing home plaintiffs and joining them in the case against HEW. The state's theory was that the federal survey system was both inadequate to determine whether residents received needed care and mandatory upon the state so that it could not develop a more appropriate system for Medicaid certification decisions.⁴²

The case was nearly settled in 1980 when the HHS published proposed regulatory revisions that would have integrated a "patient care management system" into the survey system to evaluate actual resident care. But, these regulations were not promulgated, so the case was tried in 1982. The federal district court found that (1) serious deficiencies exist in some nursing homes, which it labeled "orphanages for the aged," (2) the current survey system is facility-oriented rather than resident-oriented, and (3) it is feasible for HHS to develop a survey system focusing on resident needs and care delivery. However, the court held that as a matter of law the Secretary of HHS had no duty to develop such a system under the Medicaid statute. The Federal Tenth Circuit Court of Appeals reversed the lower court's decision in 1984, holding that the Medicaid law does impose upon the Secretary a duty ''to establish a system to adequately inform herself as to whether the facilities receiving federal money are satisfying the requirements of the Act, including providing high quality patient care."⁴¹

The appeals court returned the case to the district court to determine what survey system would satisfy the Secretary's duty. The HCFA has indicated to the court that it will implement a resident-oriented survey system by January 1, 1986.

The recommendations contained in this report follow from the committee's conclusion that profound changes are needed in the regulatory system to make it substantially more effective. The changes thus far proposed by the HCFA in response to the court decision do not address all of the significant problems that limit the effectiveness of the current regulatory system.

Other Factors Affecting Quality of Care in Nursing Homes

Regulatory Criteria

The following changes in the federal certification criteria are recommended:

1.

The regulatory distinctions between SNFs and ICFs should be eliminated.

Recommendation 3-1: The regulatory distinction between SNFs and ICFs should be abolished. A single set of conditions of participation and standards should be used to certify all nursing homes. The current SNF conditions and standards, with the modifications and additions recommended below, should become the bases for new certifying criteria.

The reasons for making this recommendation are set forth in Chapter 3.

2.

A new condition of participation on resident assessment is required. This is of fundamental importance because it has broad implications for both regulation and management (see Chapter 3, Resident Assessment).

Recommendation 3-2: A new condition of participation on resident assessment should be added. It should require that in every certified facility a registered nurse who has received appropriate training for the purpose shall be responsible for seeing that accurate assessments of each resident are done upon admission, periodically, and whenever there is a change in resident status. The results should be recorded and retained in a standard format in the resident's medical record.

3.

The existing SNF conditions of participation and standards should be rewritten in accordance with the following principles:

• Whenever appropriate, the criteria should address residents' needs and the effects of care on residents, and on the performance of a facility in providing care rather than on its capability to perform.
• The criteria should be based on the best professional standards for providing high quality of care and quality of life to nursing home residents.
• The criteria should be drafted clearly and with as much specificity as possible so that they can be understood by facilities, applied consistently by surveyors, and be legally enforceable.
• The criteria should be internally consistent, logical, and comprehensive.
• The criteria should include physical, mental, and social functioning; nursing care; nutritional status; social services; physician care; psychological care; pharmacy; dental care; environment; residents' rights; emotional well-being; personal choice; satisfaction; and community interaction.
• The criteria should be sensitive to each facility's case mix—that is, the variations in the services required and outcome expectations for residents with different needs found in one facility.
• The criteria should not be unnecessarily burdensome on facilities.
  Recommendation 3-3: The existing SNF conditions and standards should be rewritten in accordance with the above principles and made applicable to all nursing homes.

4.

Because quality of life, in addition to quality of care, is particularly important in nursing homes, the committee believes that it should be incorporated as a condition of participation.

Recommendation 3-4: A new condition of participation concerning quality of life should be added to the certification regulations. The condition should state that residents shall be cared for in such a manner and in such an environment as will promote maintenance or enhancement of their quality of life without abridging the safety and rights of other residents.

5.

There is a need to reorient the approach to regulation of nursing homes to make it more resident-centered and outcome-oriented. This requires a new condition of participation on quality of care.

Recommendation 3-5: A new condition of participation on quality of care should be added to the certification regulations. It should state that each resident is to receive high-quality care to meet individual physical, mental, and psychosocial needs. The care should be designed to maintain or improve the residents' physical, mental, and emotional well-being.

6.

Residents' rights should be raised from a standard to a condition of participation and some new residents' rights standards should be added.

Recommendation 3-6: The existing standard on residents' rights should be made into a condition of participation. The condition should state that every resident has certain civil and personal legal rights that must be honored by the staff of the facility. Rights specified in this condition, as they pertain to a resident who has been adjudicated incompetent in accordance with state law, shall devolve to the resident's guardian, or, if required by the state, a responsible party. In cases where the attending physician determines that a legally competent resident is incapable of exercising a right, the conditions and circumstances shall be fully documented in the medical record and the right shall devolve to a responsible party. The following standards should be added to the residents' rights condition:

a.

All residents admitted to the facility shall be told that there are legal rights for their protection during their stay at the facility and that these are described in an accompanying written statement. Reasonable arrangements shall be made for those who speak a language other than English. At such time as the rights set forth in this condition are revised, residents shall be given the updated information. Further explanation of the written statement of rights shall be available to residents and their visitors upon reasonable request to the administrator or other designated staff person.

b.

Each resident has the right to know the name, address, and phone number of the state survey office, state or local nursing home ombudsman office, and state or local legal service office. The facility shall post such information in a location accessible to residents and visitors.

c.

Each resident has a right to see written facility policies. Facilities shall make policies available on request. Facilities shall post state survey reports and plans of correction in a location accessible to residents.

d.

Each resident may inspect his/her medical and social records upon request to the facility. The resident may request and receive copies of the records at a photocopying cost not exceeding the amount customarily charged in the facility's community for similar services. (This overrides state law and/or regulations if they are in conflict.)

e.

Each resident must receive prior notice of transfer, discharge, and lapse of bed-hold periods. The facility must notify the resident, resident's representative, and attending physician in writing

(1)

at least 3 days prior to the lapse of bed-hold periods,

(2)

at least 3 days prior to intrafacility transfer,

(3)

at least 4 days prior to discharge from the facility except as specified in documented emergencies.

The notice must contain the reason for the proposed transfer, the effective date, the location to which the facility proposes to transfer the resident, a statement that the resident may contest the proposed action, and the address and telephone number of the state or local nursing home ombudsman.

f.

Each resident, along with his/her family has the right to organize, maintain, and participate in resident advisory and family councils. Each facility shall provide assistance and space for meetings. Council meetings shall be afforded privacy, with staff or visitors attending only upon the council's invitation. A staff person shall be designated responsible for providing this assistance and for responding to written requests that result from council meetings. Resident and family councils shall be encouraged to make recommendations regarding facility policies.

g.

Each resident has the right to meet with visitors and participate in social, religious, and political activities at their discretion so long as the activities do not infringe on the rights of other residents. This includes the right to join others within and outside the facility to work for improvement in long-term care. The facility must permit each resident to receive visitors and associate freely inside or outside of the facility with persons and groups on the resident's own initiative. Visitors must be granted access to residents. The residents, however, have the right to refuse or terminate any visit.

7.

Seven of the current conditions of participation—governing body and management, utilization review, transfer agreement, disaster preparedness, medical direction, laboratory and radiological services, and medical records—should be consolidated into one new condition to be called "administration." New standards should be added on nurse's aide training, access, Medicaid discrimination, notification, and consumer participation.

Recommendation 3-7: A new condition of participation entitled "Administration" should be established. The following current conditions of participation should be reclassified as standards under this new condition: governing body and management, utilization review, transfer agreements, disaster preparedness, medical direction, laboratory and radiological services, and medical records.

Recommendation 3-7, A: The current requirements for institutional planning and submission of quarterly staffing reports should be eliminated in drafting the new administration condition.

Recommendation 3-7B: A new standard, nurse's aide training, should be added to the administration condition. The standard should require that all nurse's aides complete a preservice state-approved training program in a state-accredited institution such as a community college.

Recommendation 3-7C: A new standard should be written under the administration condition that prohibits facilities that have signed a Medicaid Provider Agreement from having different standards of admission, transfer, discharge, and service for individuals on the basis of sources of payment.

Recommendation 3-7D: When the governing body and management condition is rewritten and incorporated in the new administration condition, the current standard "j" should be changed to require the facility to record at admission and periodically confirm or update the identity of a guardian, conservator, or resident's representative to be notified in the event of (1) care conferences: (2) changes in the resident's physical, mental, or emotional status; (3) an accident involving the resident; (4) change in billing: (5) change of room; (6) discharge from the facility; or (7) changes in federal or state residents' rights. Notification should be timely.

Recommendation 3-7E: A new standard should be added to the administration condition that would require every facility to develop and implement a plan for regular resident participation in decision-making in the facility's operations and policies and for presentation of resident concerns. Forms of resident participation can include, but are not limited to, resident councils, regularly scheduled resident forums, resident issue or program committees, and grievance committees. Facilities should include existing resident councils and/or other resident representatives in developing this plan.

Recommendation 3-7F: Two new elements should be added to the governing body and management standard as follows:

a.

Certified nursing homes should be required to permit access to the homes by an ombudsman (whether volunteer or paid) who has been certified by the state. With permission of a resident or legal guardian, a certified ombudsman should be allowed to examine the resident's records maintained by the nursing home.

b.

Any authorized employee or agent of a public agency, or any authorized representative of a community legal services organization, or any authorized member of a nonprofit community support agency that provides health or social services to nursing home residents should be permitted access at reasonable hours to any individual resident of any nursing home.

8.

Standards in the social services and physical environment conditions should be strengthened.

Recommendation 3-8: Standard 5, "Other Environmental Considerations" in the Physical Environment Condition currently reads ". . . provision is made for adequate and comfortable lighting levels in all areas, limitation of sounds at comfort levels, maintaining a comfortable room temperature . . . ." It should be amended to add, at this point, ''that is within acceptable ranges of operative temperature and humidity for persons clothed in typical summer or winter clothing at light, mainly sedentary activities, as specified in the ANSI-ASHRAE Standard 55-1981." This is the standard prescribed by the nationally recognized American National Standards Institute. Waivers may be granted for existing facilities until such time as substantial renovation takes place.

Recommendation 3-9: The present social service condition should be changed to require that each facility with 100 beds or more be required to employ at least one full-time social worker. Qualifications for this position should be a bachelor's degree in social work, a master's degree in social work, or some equivalent degree in an applied human service field at the bachelor's level or higher as approved by the state. Facilities with fewer than 100 beds or those in rural areas that have made a good-faith effort and have been unable to recruit a qualified social worker with the required credentials may substitute a contractual arrangement with a community agency or with an independent social work consultant. However, the HCFA should establish a minimum level of effort for social services in exempted facilities—for example, one day of consultation per week.

Monitoring Nursing Home Performance

The following recommendations are made to strengthen the process of determining the extent to which nursing homes are complying with the conditions of participation:

1.

Medicare and Medicaid survey and certification requirements should be consolidated.

Recommendation 4-1: Medicare and Medicaid survey and certification process requirements should be consolidated in one place in the Code of Federal Regulations to promote consistency.

2.

The timing of surveys should be adjusted to make them less predictable.

Recommendation 4-2: The timing of surveys should maximize the element of surprise; the standard annual survey should be conducted somewhere between 9 and 15 months after the previous annual survey, with the average across all facilities within each state remaining at 12 months. Additional standard surveys also should take place whenever there are key events, such as a change in ownership. Independent of the survey cycle, all facilities should be required to pass rigorous life safety code and food inspections at regular intervals.

3.

The following two survey instruments and protocols based on the new conditions and standards should be developed:

a.

a standard, relatively short survey, that would be resident-centered and use key outcome indicators to determine quality of care, and

b.

an extended survey that would entail a comprehensive examination of the nursing horne's operations. The extended survey would be used if the standard survey findings indicated that there were—or might be—evidence of inadequacies in the quality of care being provided to some or all of the residents. Good nursing homes would normally experience only the standard survey.

Recommendation 4-3: Two new survey protocols should be designed and tested to implement the new conditions and standards recommended in Chapter 3 : a standard survey and an extended survey. Both must be based on the revised conditions of participation and standards.

4.

The standard survey process would entail an audit of the resident assessment data maintained by the facility and would rely on a case-mix-referenced sample of residents to gather the information required by the standard survey instrument.

The extended survey would enlarge the sample of residents examined and increase the comprehensiveness of the standard protocol to look at compliance with all elements of all standards. It would further document poor resident outcomes and explore the extent to which structural and process factors may have contributed to these outcomes.

Recommendation 4-4: Both standard and extended surveys should assess samples of residents stratified by standard case-mix categories. Case-mix definitions, and the procedures and sample sizes required to attain a prespecified level of precision, should be established by the HCFA.

Recommendation 4-5: The standard survey should rely on ''key indicators" of quality of resident life and care that would be prescribed by the HCFA. These key indicators would measure poor resident outcomes and other resident and facility conditions that might be caused by noncompliance with the federal conditions and standards and should be investigated further by the survey agency.

Recommendation 4-6: Facilities that perform poorly on key indicators of quality of resident care or life should be subjected to a full or partial extended survey, depending on the range of problem areas discovered. The purpose of the extended survey is to determine the extent to which the facility is responsible for the poor outcomes due to noncompliance with the federal conditions and standards.

Recommendation 4-7: Quality assessment in the survey process should rely heavily on interviews with, and observation of, residents and staff, and only secondarily on "paper compliance," such as chart reviews, official policies and procedures manuals, and other indirect measures of actual care given and resident outcomes.

5.

The survey process should be coordinated with the complaint-handling process, and the latter would be strengthened.

Recommendation 4-8: The HCFA should require states to have a specific procedure and sufficient staff to properly investigate complaints.

6.

The survey process should formally seek information directly from consumers (residents and their advocates).

Recommendation 4-9: The HCFA should incorporate in its survey operations manual the following additional procedures to be followed by surveyors in addition to interviews with those residents sampled for the survey protocols:

• At the beginning of the survey, surveyors should meet briefly with members of the facility's resident council or with a group of willing and capable residents to elicit general information about services and resident satisfaction as well as to identify any areas of particular concern.
• Resident representatives should participate in the part of the exit conference where deficiencies are cited and the plan of correction is discussed.
• At the close of the survey, the following notice should be posted in a location accessible to residents and visitors:

  The (state survey agency) completed its regular certification survey of (facility name) on (date) .

  Anyone wishing to provide additional information may contact the (state survey agency) before (date) .

  (address)

  (phone)

7.

Positive incentives for good performance should be incorporated into the survey and certification process.

Recommendation 4-10: In addition to exempting good facilities from extended surveys, ways should be explored to commend superior performance.

8.

The HCFA should require the state agencies to implement a program to develop and support consistent and reliable surveys.

Recommendation 4-11: The new survey protocols, including the forms, procedures, and guidelines used by surveyors, should be designed in accordance with the revised and amended conditions and standards recommended in Chapter 3 , and they should be revised as the conditions and standards are changed in the future.

Recommendation 4-12: All survey protocols (instruments and procedures) should be tested so that they are capable of yielding reliable and consistent results when used by properly trained surveyors anywhere.

Recommendation 4-13: A sample of facilities should be subject to an extended survey each year. Information from this sample should be used to validate and improve the standard survey.

Recommendation 4-14: The HCFA should require the state agencies to implement a program to develop and support consistent and reliable surveys. This program should be based on effective training and monitoring of surveyor performance to reduce inconsistency.

9.

Several steps should be taken to strengthen the regulatory capacity of the states:

• Full federal funding should be provided for state survey and certification activities.
• State surveyor qualifications should be strengthened.
• Both federal and state surveyor training efforts should be increased.
• The results of research and evaluation studies should be analyzed and disseminated by the HCFA.

Recommendation 4-15: Title XIX of the Social Security Act should be amended to authorize 100 percent federal funding of costs of the nursing home survey and certification activities of the states. This authority should be extended for 3 years, after which time a federal-state matching ratio should be reestablished. The HCFA should develop a standard formula for distributing funds to the states under this authority so that each state is funded on an equal basis in proportion to its federal certification workload.

Recommendation 4-16: The HCFA should revise its guidelines to make them more specific about the qualifications of surveyors and the composition and numbers of survey team staff necessary to conduct adequate resident-centered, outcome-oriented inspections of nursing homes. As a minimum, every survey team should include at least one nurse. For use on extended surveys, the survey agency should have specialists on staff (or, in small states, as consultants) in the disciplinary areas covered by the conditions and standards (for example, pharmacy, nutrition, social services, and activities).

Recommendation 4-17: Federal training efforts and support of state-level training programs should be increased, especially during the period of transition to the new survey process, and during the implementation of the new resident assessment condition of participation.

Recommendation 4-18: National data about survey operations and results, and from any experiments and demonstrations sponsored by the HCFA or the states, should be collected, analyzed, and disseminated by the federal government to facilitate continued improvement in survey methods.

10.

Federal oversight capabilities vis-a-vis state survey operations should be strengthened and the HCFA should be given authority to withhold a portion of Medicaid matching funds from states that perform the survey and certification function inadequately.

Recommendation 4-19: The HCFA should increase its capabilities to oversee state survey and certification of nursing homes and to enforce federal requirements on states as well as facilities by

• adding enough additional federal surveyors to each regional office to ensure that the random sample of nursing homes surveyed each year in each state is large enough to allow reasonable inferences about the adequacy of the state's survey and certification activities;
• scheduling "look-behind" surveys so that valid comparisons can be made of the findings of federal and state surveys; and
• amending Title XIX of the Social Security Act to authorize the HCFA to withhold a portion of Medicaid matching funds from states that perform inadequately in their survey and certification of nursing homes.

11.

Inspection of care should be integrated with the certification survey.

Recommendation 4-20: The inspection-of-care function should be carried out as part of the new resident-centered, outcome-oriented survey process. But individual resident reviews should be required for a sample of residents (private-pay as well as Medicaid) rather than for all residents (although individual states may elect to continue 100 percent reviews).

12.

A realignment of federal and state certification role relationships vis-a-vis Medicare and state-owned facilities is necessary.

Recommendation 4-21: The respective roles and responsibilities of the federal and state governments should be realigned as follows:

• The states should be responsible for certifying all Medicare and Medicaid facilities (except state institutions) according to federal requirements.
• The HCFA should monitor state performance more actively and be responsible for conducting surveys of, and certifying, state-owned institutions directly.

Enforcing Compliance with Federal Standards

The following improvements in enforcement are recommended:

1.

The HCFA should revise its guidelines for the post-survey enforcement process.

Recommendation 5-1: The HCFA should revise its guidelines for the post-survey process. Revisions should include

• specifying that survey agency personnel not be used as consultants to providers with compliance problems;
• specifying how to evaluate plans of correction and what constitutes an acceptable plan of correction;
• specifying the circumstances under which onsite followup visits may be waived;
• specifying circumstances under which formal enforcement action should be initiated, and how actions should be taken; and
• requiring that states have formal enforcement procedures and mechanisms.

2.

The Medicaid authority should be amended to authorize a set of intermediate sanctions for use by the states and the federal government.

Recommendation 5-2: The Medicaid authority should be amended to authorize a specified set of intermediate sanctions for use by states and by the federal government in enforcing compliance with nursing home conditions of participation and standards. The HCFA should then develop and issue detailed regulations and guidelines to be followed by the states and by the HCFA in using these sanctions. The sanctions should include

• ban on admissions,
• civil fines,
• receivership,
• emergency authority to close facilities and transfer residents.

3.

The Medicaid statute should be amended to authorize sanctions for use against chronic or repeat violators of certification regulations.

Recommendation 5-3: The Medicaid statute should be amended to provide authority to impose sanctions on chronic or repeat violators of certification regulations.

The HCFA should develop detailed procedures to be followed by the states to deal with such facilities. Procedures should include, but not be limited to,

• the authority to impose more severe sanctions,
• a requirement to consider a provider's previous record before certifying or recertifying, and
• the responsibility to obtain satisfactory assurances prior to recertifying, that the deficiencies that led to a termination will not recur.

4.

The Medicaid statute should be amended to strengthen the effectiveness of sanctions.

Recommendation 5-4: The Medicaid statute should be amended to make the appeals process on sanctions, particularly decertification, less permissive. The HCFA should issue regulations and guidelines to implement this new authority.

5.

The HCFA should strengthen state enforcement capabilities.

Recommendation 5-5: The HCFA should strengthen state enforcement capabilities by

• requiring states to commit adequate resources to enforcement activities, including legal and other enforcement-related staff;
• requiring survey and certification survey agency staffs to include enforcement-related specialists, such as lawyers, auditors, and investigators, to work as part of special survey teams for problem situations and to help support enforcement decision-making;
• including more training in investigatory techniques, witness preparation, and the legal system in the basic surveyor training course; and
• providing federal training support for state survey agency and welfare agency attorneys in nursing home enforcement matters.

Other Factors Affecting Quality of Care and Quality of Life in Nursing Homes

The following means to enhance the effectiveness of consumers and consumer advocates in quality assurance are recommended:

1.

The HCFA should require states to make public all nursing home inspection and cost reports.

Recommendation 6-1: The HCFA should require states to make public all nursing home inspection and cost reports. These documents should be required to be readily accessible at nominal cost to consumers and consumer advocates, including state and local ombudsmen.

2.

The ombudsman program should be strengthened by amending the Older Americans Act.

Recommendation 6-2: The Older Americans Act should be amended to:

• establish the ombudsman program under a separate title in the Act;
• increase funds for state programs by authorizing federal-state matching formula grants for state ombudsman programs. The formula should provide each state with a minimum annual budget in the range of $100,000 (1985 dollars) plus an additional amount based on the number of elderly residents in the state. The federal-state matching ratio should be two-thirds federal to one-third state funds. (Although the committee did not study in any depth the budget requirement, this minimum amount is intended to provide the ombudsman program with, for example, the capability to support, at a minimum, a full-time professional and secretary and sufficient travel and training funds to recruit, train, and certify volunteers as local ombudsmen.)
• establish a statutory National Advisory Council composed of state ombudsmen, state and local aging agencies, provider and consumer representatives, state regulators, health care professionals (physicians, nurses, administrators, social workers), and members of the general public to advise on administration, training, program priorities, development, research, and evaluation;
• authorize state-certified substate and local ombudsmen, including trained, unpaid volunteers, access to nursing homes and, with the permission of the resident, to a resident's medical and social records;
• authorize public legal representation for ombudsman programs;
• exempt the ombudsman programs, including substate ombudsmen who are supported by funds from the state ombudsman program, from the antilobbying provisions of OMB Circular A-122.

3.

The Secretary of HHS should direct the Administration on Aging (AoA) to take steps to provide effective national leadership for the Ombudsman Program.

Recommendation 6-3: The Secretary of HHS should direct the Administration on Aging (AoA) to take steps to provide effective national leadership for the Ombudsman Program. At a minimum the Commissioner of AoA should designate a senior full-time professional and some supporting staff to assume responsibility for administering the program. Priority should be given to establishing a national resource center for the program that would develop, in consultation with state programs, an information clearinghouse, training and other materials to assist states, and guidance to states on data collection and analysis. The center should advise on establishing program priorities, and sponsor research and evaluation studies.

4.

The HCFA should require state long-term care regulatory agencies to develop written agreements with state ombudsman programs covering information-sharing, training, and case referral.

Recommendation 6-4: The HCFA should require state long-term-care regulatory agencies to develop written agreements with state ombudsman programs covering information-sharing, training, and case referral.

Issues Requiring Further Study