Organization of Nursing Home Regulation Activities

All 47 responding agencies conduct Medicare certification inspections; 46 conduct licensure, Medicaid certification inspections, and complaint investigation visits to nursing homes. Two-thirds conduct life safety code inspections (32/47) and just over a third (17/47) also are responsible for inspection of care visits. Very few make certificate-of-need determinations (7/47) or set Medicaid nursing home reimbursement rates (2/47).

The majority of the agencies are also responsible for licensing and certification activities for other types of health facilities. All but three handle acute care hospitals, all but two handle home health agencies and hospices, and most also are responsible for board-and-care facilities (33/47).

Survey Agency Personnel and Budget

State agencies vary greatly in the size of their budget and staff per nursing home. The percentage of total survey agency resources allocated to nursing-home-related activities ranges from a high of 93 percent to a low of 14 percent; the median is 56 percent. The amount of money allocated for regulatory activities per nursing home ranges from a minimum of $1,296 to a maximum of $13,018, with a median of $4,700. The number of nursing homes per available full-time equivalent (FTE) licensing and certification field surveyor varies from a low of 0.78 to a high of 41.96, with a median of 13.00.

Nineteen states reported that their licensing funds increased by less than 50 percent from 1980 to 1984; 17 reported that their funds increased by more than 50 percent. About half the states reported that their total budget decreased between 1980 and 1984; the other half reported that their budget increased between 1980 and 1984. Half the states reported that the number of field surveyors had decreased between 1980 and 1984; the other half reported that the number had increased.

Twenty-two reported that total staff decreased between 1980 and 1984; 19 reported that total staff increased.

Survey Agency Workload

Of the 17 state survey agencies performing inspection-of-care (IOC) reviews in addition to licensure and certification surveys, 9 indicated that these reviews are done by the same team at the same visit as the certification survey. In the other states, IOC is done by a different team or during a separate visit. Thirty-four states reported that complaints are investigated by the regular surveyors; 10 reported that they have a separate survey staff to investigate complaints.

The length of facility certification visits varies by state, by facility classification, and by type of visit. Combined licensing and certification surveys for the average-quality 100-bed nursing home ranged from 1.0 to 12.0 person-days for ICFs (with a median of 5.9), and from 1.5 to 18 person-days for SNFs (with a median of 6.8). Post-certification follow-up visits ranged from 0.5 to 4.0 person-days for ICFs (with a median of 1.5), and from 0.5 to 6.0 person-days for SNFs (with a median of 2.0). Post-certification visits average about one per facility. Complaint visits vary in length by state, but not by type of facility. The longest average visit is 2.0 and the shortest 0.4 person-days, with a median of 1.0 for both SNFs and ICFs.

Eleven states reported that the total number of visits to facilities decreased between 1980 and 1984; 20 reported that the total number of visits to facilities increased. The change in the number of follow-up visits made between 1980 and 1984 ranged from a decrease of 1,013 to an increase of 631 (or a 96 percent decrease to a 215 percent increase).

State Regulatory Standards

Just over half (24/47) of the respondents judged that their state's licensure requirements for ICFs are more stringent than those of the federal government, one-quarter (11/47) said they were the same, and one-quarter (12/47) said they were less stringent. One-third (17/47) of the directors asserted that their state's licensure requirements for SNFs are more stringent than the federal requirements, one-third (14/47) said they were about the same, and one-third (14/47) said they were less stringent.

Special Surveyor Training

Thirty-three states reported that they conduct special enforcement training for surveyors. The median number of hours of training is 7.5, but ranged in different states from 1 to 96 hours. Nine states reported that training is conducted by internal staff, 1 said training is conducted by external staff, 2 use outside consultants, and 22 said that they use a combination of the above. Twenty-six pay for training in a line item in the agency budget, seven include training funds in another line item, one uses funds external to the agency, and two use a combination of internal and external funds.

All of the states that have special enforcement training think that it has improved the surveyor's work and that training should continue.

Survey Procedures and Coordination Arrangements

Most of the agencies conduct licensure inspections once every 12 months (40/47) and certification inspections once every 12 months (42/47). All states reported that licensure and certification surveys are combined, with roughly three-quarters always doing combined surveys (33/47); the remainder combine surveys only some of the time. Seven states indicated that they use a screening or abbreviated survey to determine which facilities should receive a full-licensure or certification survey.

Most agencies reported that their surveyors review previous licensure (45/47), previous certification (47/47), inspection-of-care reports (34/47), and complaint reports (42/47) before conducting a survey. Thirty-three states indicated that surveyors always conduct "hands-on" assessments of residents during certification surveys. Most surveyors complete HCFA Form 2567 at the office, most within 10 days of the inspection (41/47). The number of days varies from 2 to 18.

Thirty-three states indicated that some aspect of their licensure and/or certification procedures has been changed in recent years.

Enforcement

Nearly all state survey agencies responding indicated that they have at least several intermediate licensure sanctions available to them, but very few are applying any formal sanctions, federal or state. Eighty-five percent of the total actions are taken in 13 states. Most respondents, however, did rate their state's enforcement efforts favorably.

Thirty-nine states said that any surveyor has the authority to cite a deficiency; three said that the team leader must make the decision to cite; two said that a supervisor must make the decision; and three states listed "other" authorities.

Thirty-six states reported that the number of standards out of compliance that would cause the nursing services condition to be marked out-of-compliance "depends." Usually they said it depended on "the severity" of the violation. Five states listed specific standards which 'would put the nursing services condition out of compliance: standards 124, 134, and 181 (director of nurses, 24-hour nursing, and administration of drugs, respectively). Two states said any standard out of compliance would put the condition out of compliance; one said one standard was sufficient; two said two; and one said three.

Thirty state directors thought that one onsite visit to a facility is adequate to verify a plan of correction; 13 said that several visits are necessary; 3 said that none are necessary. Most states do a routine follow-up visit for each full survey; it lasts one-third as long as the original visit. Most survey agency directors think this is a reasonable procedure.

Twenty-three states reported that they do not have attorneys on staff who are specially designated to deal with enforcement actions. Ten states have one attorney who specializes, five have more than one. Only 6 reported that they have hearing officers designated for nursing home enforcement; 28 do not. Four have special investigators; 30 do not. Two have special assignment surveyors.

When the states take court action, 13 have a staff attorney available to defend them; 31 have a departmental attorney available, and 3 have no attorney available. Twenty said that their attorney carried out their request to file an action all of the time, 11 said most of the time, 12 said some of the time, and 2 have never requested an action.

States have, on the average, 8 available sanctions under their state licensure laws. The survey inquired about 14. Some states had all 14, and some had only a few. Most states have the authority to revoke a facility's license (44/47), to decertify a facility (40/47), and to seek a court injunction (37/47).

Additionally, 36 states reported having authority to relocate residents from substandard facilities; 35 have the authority to issue conditional licenses; 32 have the authority to suspend all new admissions; 30 have the authority to impose criminal penalties for patient abuse; 26 have administrative fining authority; 25 have the authority to take licensure records into consideration in certificate-of-need recommendations; 21 have the authority to place a facility into receivership; 19 report having the authority to withhold Medicaid payments to noncompliant facilities; 15 have the authority to issue probationary licenses; 9 have the authority to reduce the Medicaid reimbursement rates of noncompliant nursing homes; and 7 have the authority to appoint a monitor to a facility (see attached copy of survey questionnaire).

In states that have the sanction, the survey agencies usually have the authority to recommend a sanction but not necessarily the authority to decide whether to carry out a sanction. In 9 of the 14 categories, most of the state agencies that have the sanction have the authority to recommend the sanction, but less than half have the authority to decide whether to use the sanction.

The availability of sanctions in a state seems to be associated with (1) whether surveyors receive special enforcement training, (2) the agency budget per nursing home, (3) the total number of state agency visits to nursing homes, and (4) the survey agency director's opinion of the survey process regulations. States that have special enforcement training are more likely to have more types of sanctions available. States with high budgets per nursing home also have high numbers of sanctions available. States that make a lot of visits are likely to have more sanctions available. And agency directors who are content with the procedural regulations are more likely to have more sanctions available to them.^* States that have committed significant efforts to strengthening nursing home regulation, whether in special staff training, increased survey agency budgets, or frequency of inspection visits, are also those that have elected to have a variety of sanctions available. Perhaps political pressures have stirred all of these interests simultaneously, or perhaps the greater training and resource allocations have uncovered the need for more sanctions.

Regarding enforcement actions, 20 states report that they have written guidelines for when and how to take a formal enforcement action; 27 do not.

The total numbers of enforcement actions taken by states in each category in 1983 ranged from one to dozens, to several hundred in a few categories (civil fines, criminal penalties, and withholding of payments). However, at least 75 percent of the actions taken in each category were taken by one, two, or three states. (It was not necessarily the same state in each category; states seem to favor one or two sanctions.) The median number of types of enforcement actions used by an agency was two. The median total number of actions taken was 11.

The number of reported actions taken increased in all but one category (conditional licensing) from 1980 to 1983-1984. In 1983, 15 states revoked the license of at least 1 facility; 15 suspended admissions to one or more facilities; 14 relocated residents from a facility; 14 issued conditional licenses; 13 issued fines; 13 decertified facilities; 10 took licensure records into account on certificate-of-need recommendations; 9 obtained injunctions; 8 placed a facility into receivership; 5 issued probationary licenses; 3 withheld Medicaid payments to a facility; 3 appointed a monitor to a facility; and 1 reduced Medicaid rates to a facility.

Of those reporting having taken enforcement actions, the number of types of actions taken and the total number of actions taken seem to be correlated with (1) special enforcement training, (2) whether recent changes in the survey process have taken place, (3) minimum number of required nursing hours, (4) percentage of agency resources allocated to nursing homes, (5) survey agency budget per nursing home, (6) total numbers of visits in 1983-1984, (7) changes in state licensing funds, (8) number of sanctions available, and (9) statewide per capita income. More training was positively linked with using more types of enforcement actions, as well as implementing more actions. Changes in the survey process were also positively linked with numbers of types and numbers of actions taken. States with higher nursing requirements, and those with more monetary resources and more staff/time resources allocated to nursing homes, implement more kinds of sanctions and more sanctions. Larger increases in state licensing funds from 1980 to 1983-1984 are related to fewer enforcement actions; smaller increases are related to more types and numbers of enforcement actions. The number of available sanctions is directly related to their use. And a higher per capita income is related to a higher number of types of sanctions applied.

The correlations with enforcement activity seem to be a reflection of the amount of political interest states take in nursing homes. Those that have higher nursing requirements, special training, more available sanctions, that have made recent changes in the survey process, and that allocate more resources to nursing home surveying seem to be more active in enforcement. Or perhaps these factors make it easier for states to bring enforcement actions. States that take more enforcement actions have more knowledge, better rules, and more resources for monitoring the situation.

Agencies tend to rate sanctions favorably. In 11 of the categories, well over half of those using the sanction rated it as very effective or effective. Fifteen agencies said that their overall enforcement efforts were very effective, 29 said their efforts were effective, and 3 said their efforts were not effective. These opinions did not correlate with availability and use of sanctions. Agencies may be reluctant to downgrade the effectiveness of the sanctions available to them, or their own efforts. When actions were taken to court, three agency directors said that the court supported the agency's position all of the time, 20 said most of the time, 15 said some of the time, and 9 have never taken a facility to court. Again, these opinions were not related to use of sanctions.

Twenty states said that particular sanctions are effective because they affect the income of the provider. Other reasons given included the ability to implement the action quickly (7), the ability to remove an operator (4), and publicity (5). The obstacle to enforcement that was mentioned most often was time delays in implementing a sanction, both administrative and legal (11). Others mentioned the difficulty of administering some of the sanctions (3), potential harm to residents (transfer trauma, decreases in funds being taken out on patients) (4), and too little impact on the provider's income (2). More states listed reasons for the success of sanctions than listed obstacles (37 as opposed to 19). This is because several did not rate unfavorably any of the sanctions they used.

Views on Federal Regulations

The majority of respondents believe that current federal certification regulations could ensure nursing home services of adequate quality with certain modifications. A few forwarded specific suggestions for changes.

Eight state agency directors reported that they believe that current federal SNF Conditions of Participation can ensure adequate nursing home services as they are; 9 believe that they could ensure this quality if some unnecessary or unmeasurable provisions were deleted; 20 believe that they could ensure this quality if certain additions and modification were included; and 10 believe that they cannot ensure adequate-quality nursing home services without a major overhaul and reorientation. Six directors believe that current federal ICF Standards can ensure adequate-quality nursing home services as they are; 8 believe that certain deletions are needed and 16 believe that certain additions are needed. Thirteen believe that these standards cannot ensure adequate-quality nursing home services without a major overhaul and reorientation. Regarding the current federal survey procedures, 11 state agency directors think that the regulations work reasonably well as they are; 7 think they would work with some deletions; 20 think they would work with changes and additions; 7 think they would work if the federal government gave states more support; and 2 think they need to be completely revised.

Regarding specific changes, only two respondents identified a specific federal survey and certification standard as inhibiting the quality of patient care: the utilization control condition. The utilization control condition was also mentioned consistently as not worth the time and cost of surveying (11/47). Twenty-three other standards were stated to be not worth the time and cost by 1, 2, or 3 respondents. Consistently mentioned as ineffective were the utilization control condition (11/47) and the quarterly staffing reports standard (5/47). Twenty-seven other standards were mentioned by either 1, 2, or 3 respondents. Consistently named as needing modification were the conditions for nursing services (5/47), medical director (4/47), and physician services (4/47). Thirty-three others were mentioned by 1, 2, or 3, respondents. Few agencies listed more than one federal regulation as ineffective, or not worth the time and cost. Few agencies listed more than two choices for regulations which should be retained in a modified form.

The five SNF Conditions of Participation identified most often as being the most important for ensuring adequate-quality patient care were nursing services (36/47), dietetic services (30/47), pharmaceutical services (24/47), physician services (19/47), and physical environment (13/47).

Thirty-two agency directors agreed that the federal regulations should incorporate minimum nurse-to-patient staffing ratios. Thirty-six replied that the regulations, procedures, and forms for surveying skilled and intermediate-level facilities should be combined into one comprehensive survey. Thirty-four thought that states should require certification of nurse's aides. Thirty-four thought that the survey process should include a screening instrument. Twenty-eight said the time-limited agreement should be dropped. Forty-five agreed that the survey should include patient assessment. Thirty wanted survey results publicly posted. Forty-six disagreed with the proposal to allow JCAH accreditation to replace surveys.