Skilled Nursing Care

Skilled Nursing Care

Federal quality assurance standards that have been in the implementation stage for several years offer hope for more rigorous oversight of skilled nursing facilities.

While some improvement in fine collections has occurred, the state citation system lacks a strong enough bite to make providing quality care not merely a humane practice but also a sound business decision.

Inadequate staffing requirements, artificial barriers to the use of some types of health care providers and a less-than-robust response to consumer complaints continue to plague the skilled nursing care system.

Overlapping state and federal regulations are an all-but-incomprehensible maze for consumers, facilities and state enforcers.

Skilled Nursing Care

Finding 3: Federal mandates for skilled nursing facilities have brought an improved process to monitoring quality of care -- but many previously identified issues remain unresolved and others are developing as the role of these institutions shifts to a higher level of care.

Under recently issued federal regulations, skilled nursing facilities (SNFs) are judged by their ability to provide the least restrictive, most socially stimulating environment that a person's condition, desire and needs allow. The State's process of holding SNFs to this standard holds great promise. But many of the problems identified in previous Little Hoover Commission reports continue to exist and have immense negative impact on people's lives. As the role of SNFs shifts more from long-term custodial care for chronically ill people to short-term rehabilitative care for recently acutely ill people, the State has an opportunity to recast the policies and programs that make these institutions the most costly, least consumer-desired long-term care option.

In 1987, Congress passed a nursing home reform package known as OBRA 87 (Omnibus Budget Reconciliation Act of 1987) that focused on improving the quality of care and life for skilled nursing facility residents. The new outcome-based directives required nursing homes to assess residents as they entered the facility, plan a course of action that would meet the multiple needs of residents and take actions that were responsive to residents' wishes, capabilities and changing status. Among the reforms OBRA 87 required were:⁽⁸⁸⁾

Protection for patients' rights, including restrictions against chemical and physical restraint without informed consent, accommodation of needs, privacy, access to information, the freedom to express grievances and expect a timely response without retaliation and the right to be fully informed about nursing home actions, policies and care planning.
Staffing requirements, including the presence of a registered nurse for at least eight hours a day, a licensed nurse 24 hours a day and sufficient staff to allow residents to maintain functionality.
Training requirements, including 75 hours for nursing home aides, documentation of training and competency, and listing of all incidents of abuse or neglect in a state registry.
Initial and annual assessments of residents to determine their needs and create a care plan that provides for the highest practicable physical, mental and psychosocial well-being of the resident, with deterioration in a resident's condition only when it is clinically unavoidable.

California Record

In California, the first response by the State was to insist that state regulations were already more comprehensive and that, therefore, the federal mandate could be ignored. In a lawsuit that became known as the Valdivia case, consumer advocates demanded that the State enforce the new federal requirements.⁽⁸⁹⁾ A preliminary injunction was issued against the State and eventually in 1993 an agreement was reached that required the State to enforce the federal regulations.

The State's resistance was matched by the federal government's lethargy. While OBRA 87 originally required the implementation of the new program by 1990, the federal government was still issuing major portions of enabling regulations in July 1995. State officials, who began enforcing the regulations as they emerged, told the Little Hoover Commission that even now there are elements of the program still missing but that in general the structure is well in place to inspect skilled nursing facilities for compliance with federal mandates.

The time of transition -- overlaying the new federal system on to the state one, which has been supplemented rather than supplanted -- has not always gone smoothly, as evidenced by several studies:

A January 1994 audit of the licensing and certification unit for the Department of Health Services found problems with the way fees were set, a failure on the part of the department to complete inspections of long-term care and home health facilities within the federally mandated one-year period, lateness in investigating 50 percent of complaints received and antiquated information systems.⁽⁹⁰⁾
The Legislature ordered the State Auditor to review the Orange County record of enforcement on standards for skilled nursing facilities after advocacy groups, ombudsmen, whistleblowing state workers and individual consumers complained in 1993 that the State's operation there had all but ceased to exist. The result was a July 1995 report that confirmed the Orange County office was failing to use its enforcement authority properly, was consistently late in investigating complaints -- but had begun improving its performance in the past two years.⁽⁹¹⁾
An annual report card by a consumer group called California Advocates for Nursing Home Reform has consistently criticized the Department of Health Services for failing to use the tools it has to aggressively enforce high standards of care. However, the 1995 report card upgraded the Department's enforcement efforts from a D to a C, calling 1995 a time of transition and looking to new federal enforcement tools to help the Department become more effective on behalf of consumers.

The State also was scrutinized from the outside by the agency in the best position to determine if California is doing a good job of meeting federal mandates. The Health Care Financing Administration (HCFA) evaluation of the State's efforts for October 1, 1994 through September 30, 1995 struck a positive note initially by praising California's efforts:

Fiscal year 1995 brought significant changes to the survey and certification process as new Long-Term Care enforcement regulations were implemented. The success of the implementation depended upon the total commitment of state survey agencies and close coordination with HCFA. The California survey agency managed the implementation, which required extensive training of the survey and management staff, as well as provider and consumer organizations, in an outstanding manner.⁽⁹²⁾

But the evaluation found that the State did not meet federal standards, "narrowly missing the acceptable performance level." The evaluation said there was "relatively close agreement" between the State's survey results and the federal government's recheck of the institutions -- but the statistics cited gave little comfort to consumer advocates who reviewed the report. It said that in 21 of the 34 facilities reviewed by the federal government in the footsteps of the state surveys, HCFA took its own enforcement action -- and in 14 of the 21 facilities that the State had cleared, HCFA determined there was substandard care.

Continued training and experience with the new system, however, will undoubtedly lead to more conformity with the federal government's expectations. In reviewing the survey process, the Little Hoover Commission noted that there are multiple elements that provide a solid structure for performing rigorous and productive assessments of skilled nursing facilities.

For instance, the survey team has a well-orchestrated list of duties it must accomplish and statistical sampling criteria that it must meet -- but the system also has room for flexibility when a survey team member notes something unusual or unexpected.

Perhaps even more encouraging are the new higher standards for the Plan of Correction that facilities must submit in response to citations. In past years, Plans of Correction appeared to mostly consist of rote statements pledging to do in-service training on whatever the problem was. Under the federal system, the Plan of Correction must explain 1) how they will handle the problem with residents who were found to be affected, 2) how they will identify other residents who have the potential for being affected by the same problem, 3) what measures the facility will put into place to ensure similar problems do not occur in the future for anyone and 4) how the facility will monitor its corrective actions to ensure that they have effectively changed the system.

While the new system holds out great hope for the future, whether it will live up to its potential cannot yet be determined. However, the Little Hoover Commission noted in its current study that many past problems and recommendations remain valid, new problems are arising and potential solutions are emerging.

Ongoing Problems

The Little Hoover Commission examined the State's oversight of skilled nursing facilities in 1983, 1987, 1989 and 1991, in each case issuing critical reports with recommendations for reforms. In addition, the Commission conducted an oversight hearing in 1993 and put together a package of legislation based on that hearing and prior recommendations. Despite some progress, particularly in the area of patients' rights, many of the recommendations remain unfulfilled and the same problems persist.

In some instances, incremental reform has occurred but the underlying conditions still warrant further reform. For instance, for years the Commission has complained that the State's computer resources are so antiquated that fines cannot be tracked and collected adequately. During this study, the Commission found that dramatic improvements have been made in the State's computer abilities -- but fines continue to be waived or halved in accordance with law, watering down their impact on the industry and their ability to satisfy consumer demands for equity, justice or retribution.

After reviewing materials, discussing key issues on skilled nursing facilities with the Commission's advisory committee and meeting with experts, the Commission believes the following problems still persist and are well documented in its prior reports:

The citation and fine system continues to be undermined by procedural delays and penalty reduction mechanisms. Fines do not serve as adequate deterrents when they are too low compared to injuries sustained; arbitrarily cut in half for prompt payment; and completely waived on the first incident.
The State's response to complaints continues to be slow and unsatisfactory for residents and their families, placing more emphasis on due process rights for the industry than on the importance of being responsive to consumers. In this study as in previous ones, the Commission was inundated with consumer complaints about nursing home performance and the difficulty of getting the State to take what the consumers felt were appropriate action. The State has made strides in providing materials to citizens to explain their rights and how to exercise them, but their primary focus is not consumer service, nor are they adequately funded or staffed to provide such service.
Staffing of skilled nursing facilities, which is set at 3.2 hours per patient per day, is too low to provide adequate care -- especially since these hours are averages and can be filled by different levels of professionals. The state provision that allows the hours worked by registered nurses and licensed vocational nurses to be doubled on paper is particularly contrary to common sense since residents' needs do not change simply because a registered nurse is present instead of a nursing assistant. With the exception of the skilled nursing facility industry, no one the Commission spoke to or heard from favors the continuation of this mechanism.
The lack of adequate pay and career advancement opportunities for Certified Nursing Assistants (CNAs) leads to continual turnover and disruption of the quality of care in nursing homes. While much progress has been made in standardizing training, key elements -- such as anger management, understanding the needs of the elderly, listening skills, stress management -- still may be missing. In addition, the quality of training is difficult to monitor accurately. And, finally, the State's process for certifying and renewing certifications for CNAs is often backlogged.

Growing Issues

The nature of long-term care is changing, as has been described in the beginning sections of this report. Consumers are pushing for more home- and community-based care, and settings that are not paternalistic, dehumanizing and devoid of consumer control. Concurrently, skilled nursing facilities are turning their attention to what has become known as subacute care -- the more-lucrative treatment required by people who have been recently hospitalized but are not yet ready to return to their homes. At the same time, citizens are demanding more accountability -- as taxpayers for the money they spend on long-term care and as consumers for the quality of care that is provided in facilities.

These trends suggest three areas that may be ripe for reform: the use of allied professionals in facilities, the need for civil liability remedies and the desirability of streamlining regulations.

Allied professionals: Much of what occurs in skilled nursing facilities is driven by the fact that funding comes from two medically oriented systems: Medicaid and Medicare. These systems often require the highest level medical professional to be in direct charge of all treatment and decisions. But few highly paid, top-ranked professionals desire a practice that includes nursing home residents for several reasons: low reimbursement rates from government programs, the inconvenience of traveling to facilities that are not equipped for diagnosis and treatment, and the barriers to nursing home residents coming to the professional's office.

On the other hand, these same professionals are territorial in their concern that alternative types of health care providers -- known as allied professionals -- not be allowed to give treatment independently. The result is that dental hygienists, nurse practitioners and other educated and trained professionals are often blocked from providing needed services in skilled nursing facilities.

For almost a decade, dental hygienists have engaged in a pilot project in skilled nursing facilities to demonstrate that residents' quality of living can be improved with direct care to the residents and oral care training for facility staff provided by hygienists. Despite their documented success and the popularity of the program with skilled nursing facilities, the dental hygienists have not been able to get past dentists' opposition to win the ability to operate independently in these facilities.

The California Dental Association is surveying its membership to determine the level of involvement with skilled nursing facilities, plans to develop training modules for skilled nursing facility staff and plans to encourage dental schools to discuss gerontological issues as part of their curriculum. But none of these actions address the fact that most skilled nursing facilities do not have a means of providing their residents with regular, reliable dental care.

It is beyond the focus of this study to delve into scope-of-practice issues, trying to determine who is qualified to deliver what type of treatment. But as pressure mounts to shift the focus of skilled nursing facilities away from medical models, it appears sensible to open the doors to different kinds of treatment providers, especially when there is a documented void in care.

Civil liability remedies. Experts cite the ability of citizens to sue for malpractice -- and win large awards -- as one reason many other types of medical facilities have adopted stringent quality control mechanisms, effective peer review and other measures that have improved the quality of care. The same dynamic has not been in play for skilled nursing facility residents. Since most of the residents are elderly, the age-dependent calculations that are used to figure the size of awards usually render such suits unattractive to lawyers who operate on a contingency fee basis. Thus citizens by and large are left to rely on the deterrence power of the State-invoked penalties, which can be quite small in comparison to a facility's budget or a large facility-owning corporation's overall cash flow.

One new mechanism for making regulatory compliance more attractive to facilities is the federal government's use of the False Claims Act. In a 1996 case that was settled out of court, the federal government sued a facility for providing inadequate care to three residents and then billing the government through Medicaid and Medicare for normal charges. The government's posture was that by submitting the claims, the facility was certifying that it had rendered care consistent with state and federal requirements.⁽⁹³⁾

It is unknown whether the federal government will make such suits a standard practice. If so, it would simply add another governmental mechanism for deterring noncompliant care. But many consumer advocates told the Little Hoover Commission that empowering residents and their families to pursue civil remedies for claims of harm, with proportionately serious financial remedies, would add an effective weapon to the drive for higher quality care. And as described in Finding 1 under the discussion about regulatory effectiveness, providing the private sector with access to the quality control process would strengthen the opportunities for regulations to work as intended.

Streamlining regulations: While not everyone agrees on the degree of regulatory effectiveness, it is difficult to dispute that the skilled nursing facility industry faces multiple layers of regulations, especially since the implementation of OBRA 87. Federal and state requirements sometimes overlap, sometimes conflict and sometimes are outdated. The industry shared the following comments with the Commission:

The need for paperwork and documentation is time consuming, not always clearly stated and often focused on process rather than resident outcome.
Regulations known as "specificity of care" requirements use absolute standards of weight deviation and input and output volumes that do not allow for professional judgment, specific case variations and desirable outcome.
Some requirements are outdated, calling for equipment that is no longer used or standards that are no longer generally practiced.
Regulations do not allow for innovation, industry advances and other flexibility.
Some regulations require the nursing home to ensure things that are not within its power to provide. For instance, informed consent is supposed to be obtained from the resident by the physician -- but it is the facility that is held responsible for it being accomplished.
Some regulations duplicate requirements in other areas of state law, such as building standards, and are unnecessary.

Both the industry and the Department of Health Services are engaged in reviews of state and federal regulations to see what streamlining can be accomplished. While consumer advocates have legitimate concerns that reform in the regulatory arena not mean a lessening of standards, common sense argues that no one benefits from a convoluted, multi-layered regulatory scheme that is difficult for industry to follow, consumers to understand and the State to enforce.

Summary

Regulation of skilled nursing facilities is undergoing transition as outcome-oriented federal mandates begin to mold state oversight and industry practices. Many of the provisions of federal law hold great promise for improving conditions in skilled nursing facilities. But many problems remain, some documented in prior studies and others growing more evident as the long-term care industry grows and changes. While it is too early to judge the eventual impact of federal requirements, state policy makers can still take steps to improve conditions in facilities that house some of the State's most vulnerable citizens.

Recommendations

Recommendation 3-A: The Governor and the Legislature should take steps to move medical care in long-term care settings from the costly reactive model to the more economical, preventive model, including encouraging the use of allied health professionals when appropriate.

There is little value in protecting the turf of professionals who do not want to provide service in a long-term care setting but who are loathe to see their competitors gain a foothold. Allied health professionals, such as dental hygienists, nurse practitioners and physician assistants, can play a valuable role in providing preventive health care and alerting the appropriate professionals to the needs of residents in skilled nursing facilities. They should be given the opportunity to do so.

Recommendation 3-B: The Governor and the Legislature should strengthen the opportunities, incentives and requirements for high quality performance by skilled nursing facility staff.

It is difficult to operate effectively in a setting that is understaffed, has incomplete or inadequate training and provides no opportunity for advancement. The following steps would address those concerns:

Eliminate the doubling of hours for licensed nursing professionals, explore moving to a system that requires adequate staff for proper care rather than a certain number of hours, and/or set higher standards for staffing. The Older Women's League has recommended one caregiver for each eight residents at a minimum.
Add more gerontology and human relations issues to the certified nurse assistant (CNA) training curriculum and provide more effective oversight to ensure that training is of high quality and actually occurs.
Create a career ladder for CNAs by establishing progressive educational standards and work experience that would lead to licensed nursing status.

Recommendation 3-C: The Governor and the Legislature should enhance the State's enforcement capability by eliminating counterproductive provisions in the citation and fine system, directing more frequent use of alternative tools and creating a more effective civil liability remedy.

Specific steps that policy makers should take include:

Eliminating the waiver of fines for B citations and the halving of fines for payment prior to appeal. The Department of Health Services told the Commission it supports both of these reforms.
Encouraging the Department of Health Services to use more frequently facility decertification, delicensing and frozen admissions, as well as creating a fee system that assesses a facility at a higher rate when frequent violations require more frequent inspections.
Fines, set in the mid-1980s, should be increased. In addition, consumers should be empowered to sue for civil remedies with the potential for large enough financial damages to act as a deterrent for poor quality care.

These and similar reforms are supported by the California Senior Legislature in its 1997 list of priorities and the California Advocates for Nursing Home Reform.

Recommendation 3-D: The Governor and the Legislature should create a more responsive complaint investigation and resolution process that is separate from the licensing and technical advice function.

The reality is that the Department of Health Services is neither adequately funded nor staffed to be responsive to consumer complaints -- and the perception is that their interest is more aligned with encouraging industry to comply than providing aggressive enforcement. In addition, the current process is heavily weighted toward due process for industry rather than adequate concern for consumers. Restructuring the process and placing it at some distance from the licensing function -- such as at the Attorney General's Office or in the Department of Consumer Affairs -- would address these issues. This reform could be tracked and assessed for effectiveness over time.

Recommendation 3-E: The Governor and the Legislature should eliminate duplicate regulations and streamline the oversight process while ensuring that no deterioration in the quality of care occurs.

It is counterproductive to have more than one set of regulations governing an industry and to layer complexity with redundancies. Regulations should be focused on outcomes, allow for flexibility of methods, lend themselves to consistency of interpretation and be easily understood by industry, consumers and state workers.

Next Section Previous Section Table of Contents

		Federal quality assurance standards that have been in the implementation stage for several years offer hope for more rigorous oversight of skilled nursing facilities.
		While some improvement in fine collections has occurred, the state citation system lacks a strong enough bite to make providing quality care not merely a humane practice but also a sound business decision.
		Inadequate staffing requirements, artificial barriers to the use of some types of health care providers and a less-than-robust response to consumer complaints continue to plague the skilled nursing care system.
		Overlapping state and federal regulations are an all-but-incomprehensible maze for consumers, facilities and state enforcers.