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Updated, October 21, 2013, 11:00 p.m. PDT

U.S. Supreme Court Justice Louis D. Brandeis, in the public domain. (Photo credit: Harris & Ewing Collection at the Library of Congress, Prints & Photographs Division, circa 1916)

Blowing the lid off 12 more troubling secrets about the Medicare Nursing Home Compare five-star rating system

Two weeks ago, in part 1 of the three-part exposé “Medicare Nursing Home Compare Five-Star Rating System: A Fraud on the Public?,” Elder Abuse Exposed.com revealed four of 16 secrets that the Centers for Medicare and Medicaid Services (CMS) and “five-star” nursing homes, especially in California, will not tell you about Medicare’s nationally promoted, frequently visited Nursing Home Compare website:

Secret #1: Medicare’s misleading Nursing Home Compare website excludes all deficiency citations and penalties that inspectors for the California Department of Public Health’s (CDPH’s) Licensing and Certification Program have issued to noncompliant nursing homes when referring only to state law and not federal law.

Secret #2: CDPH has not clearly explained why many nursing home citations that CDPH inspectors have issued for even the most serious misconduct, including elder abuse and patient homicides, have referred only to state law and have thereby been excluded from the Medicare Nursing Home Compare five-star rating system.

Secret #3: Even though CDPH has claimed that its inspectors will now be issuing dual citations, which refer to both state and federal law and which CDPH has referred to as “the federal process with dual enforcement,” the Medicare Nursing Home Compare five-star rating system will likely continue to exclude serious misconduct by wealthy, politically connected nursing homes in California.

Secret #4: The Medicare Nursing Home Compare website excludes even the highest-level state enforcement actions, including elder abuse and patient homicides, against “five-star” nursing homes in California.

Today, in part 2 of the three-part exposé, Elder Abuse Exposed.com blows the lid off seven more secrets (numbers 5–11) that the CMS and “five-star” nursing homes throughout the U.S. do not want you to know about the Medicare Nursing Home Compare five-star rating system. While exposing these seven new secrets in part 2, Elder Abuse Exposed.com is continuing to explore if there is truly a useful correlation between a nursing home’s star rating on Nursing Home Compare and the quality of care that a nursing home provides. Elder Abuse Exposed.com is also continuing to explore whether the Medicare Nursing Home Compare five-star rating system is a fraud perpetrated on consumers searching for a high-quality nursing home without a history of elder abuse and homicides.

Within the next week or two, in part 3 of the three-part exposé, Elder Abuse Exposed.com will reveal the remaining five of the 16 secrets (numbers 12–16). Armed with this pertinent information, professional geriatric care managers, hospital case managers, elder care referral services, and consumers throughout the U.S. will finally be able to decide for themselves if Medicare’s Nursing Home Compare provides reliable, accurate information on the quality of care in the more than 15,000 Medicare- and Medicaid-certified nursing homes in the U.S. People who rely on the Medicare Nursing Home Compare five-star rating system can also decide if they agree with 31 state attorneys general who signed an August 20, 2009 letter to Kathleen Sebelius (email), secretary of the U.S. Department of Health and Human Services.

The letter said:

As a result of the current Five Star methodology, comparison of individual nursing home ratings can be misleading and create significant confusion for consumers. In the interest of consumers as well as providers, we believe it imperative that the current Five Star System be suspended temporarily and revised using a more appropriate criterion-referenced evaluation methodology.

Secrets 5–11 of 16 secrets Medicare does not want you to know about its five-star rating system on Nursing Home Compare

5. Consumers must rely on a state website that is not as heavily promoted as Nursing Home Compare to see state enforcement actions against California nursing homes.

Elder Abuse Exposed.com informed CDPH that Nursing Home Compare excluded an October 6, 2011 class “B” citation issued to “five-star” Lake Balboa Care Center

While doing research for this exposé, Elder Abuse Exposed.com emailed CDPH officials to inform them that Nursing Home Compare excluded a state law-based class “B” citation that CDPH issued to a “five-star” nursing home in California on October 6, 2011. (The October 6, 2011 class “B” citation involved “a complaint alleging Patient 1 was not provided an adequate amount of oxygen during an emergency situation when the patient became unresponsive” and, according to the patient’s death certificate, suffered fatal “cardiopulmonary arrest.”) Elder Abuse Exposed.com asked the CDPH officials if CMS’ calculation of a California nursing home’s Medicare star rating disregards citations that Nursing Home Compare excludes. Elder Abuse Exposed.com told CDPH officials that the excluded October 6, 2011 class “B” citation had been issued to “five-star” nursing home Lake Balboa Care Center, in Van Nuys, California.

Lake Balboa Care Center and the nursing home featured in part 1 of this exposé—Cottonwood Healthcare Center, in Woodland, California—are two of the 34 “five-star” client facilities of North American Health Care Inc. According to John Sorensen—the president, CEO, and chairman of the board of Dana Point, California-based North American Health Care Inc.—“Thirty Four of its Thirty Five affiliated client facilities are five star rated and one is four star rated.” North American Health Care also advertises on its company website, “As of June 2013, Medicare awarded 34 North American Health Care Inc. client serviced facilities with their highest honor – a Five-Star Rating.”

A CDPH official did not explain why class “B” citation issued to Lake Balboa Care Center was disregarded by Medicare’s Nursing Home Compare

Although a CDPH official responded to Elder Abuse Exposed.com’s email, the official did not address Elder Abuse Exposed.com’s concern that Medicare’s Nursing Home Compare excluded the October 6, 2011 class “B” citation that CDPH issued to Lake Balboa Care Center. The CDPH official also did not respond to Elder Abuse Exposed.com’s request for a referral to a state or federal official who could ensure that Medicare’s Nursing Home Compare would include state law-based enforcement actions against California nursing homes, such as the October 6, 2011 class “B” citation issued to North American Health Care’s “five-star” client facility Lake Balboa Care Center.

CDPH official said information about class “B” citation issued to Lake Balboa Care Center was included, not on Medicare’s Nursing Home Compare, but on CDPH website

But the CDPH official, Lunghwa Yung, a staff information systems analyst for the Los Angeles County Department of Public Health’s Health Facilities Inspection Division, was very kind to refer Elder Abuse Exposed.com to a valuable resource for consumers searching for information specifically on California nursing homes. The resource, which is not as heavily promoted as CMS’ Nursing Home Compare and which does not have a star-rating system for California nursing homes, is CDPH’s Health Facilities Consumer Information System (HFCIS).

CDPH website includes critical information on California nursing homes’ misconduct that Medicare’s Nursing Home Compare completely ignores

The HFCIS is the State of California’s website and database that allows the public to search for information on California nursing homes that Medicare’s Nursing Home Compare totally disregards. For instance, the HFCIS allows the public to view summary information on California nursing homes’ substantiated and unsubstantiated complaints, incidents self-reported by facilities, and deficiency citations and penalties referring to state law violations during the past 10 years. The HFCIS also allows the public to download and view actual deficiency statements and to request from CDPH detailed ownership information about each nursing home in California.

Consumers who want information on state enforcement actions against California nursing homes should not waste their time with Medicare’s Nursing Home Compare

If consumers want information about the state violations and enforcement actions against a nursing home in California, such as the North American Health Care “five-star” client facility featured in part 1 of this exposé, Cottonwood Healthcare Center, consumers should not waste their time at Nursing Home Compare. Instead, consumers should search CDPH’s HFCIS. At this State of California website, HFCIS, unlike at CMS’ Nursing Home Compare website, consumers can see all the substantiated complaints, incidents self-reported by facilities, deficiency citations, and fines that Nursing Home Compare completely ignores.

6. The elephant in the room: California nursing homes’ profile pages at CMS’ Nursing Home Compare do not link to CDPH’s Health Facilities Consumer Information System.

There is an easy fix: disclosure

Consumers would know about Nursing Home Compare’s incomplete and misleading information on California nursing homes if the Centers for Medicare and Medicaid Services merely provided a simple disclaimer on California nursing homes’ profile pages at Nursing Home Compare. For instance, CMS could easily include on Nursing Home Compare a simple line of text warning consumers that Nursing Home Compare excludes even the highest-level state enforcement actions against California nursing homes, including elder abuse and patient homicides.

There is another easy fix: referring consumers to useful information elsewhere

For example, CMS could also include on Nursing Home Compare a link to CDPH’s Health Facilities Consumer Information System (HFCIS) to allow consumers to view information on California nursing homes’ misconduct and penalties that CMS excludes from Nursing Home Compare and to view CMS’ calculations for nursing homes’ health inspections star ratings and overall quality ratings.

7. The Nursing Home Compare five-star rating system is not based on and totally excludes state enforcement actions against California nursing homes.

CMS misleads Nursing Home Compare website users searching for reliable and complete information on California nursing homes

In its explanation of how CMS calculates and assigns a nursing home’s overall quality rating, CMS misleads consumers searching the Nursing Home Compare website for reliable and complete information on California nursing homes. A nursing home’s overall quality rating of one to five stars is “based on facility performance for three types of performance measures, each of which has its own five-star rating,” says CMS.

The three types of nursing home performance measures are:

Health inspection results.

Patient assessment data that supposedly indicate nine different quality-of-care performance measures.

Staffing data that include staffing levels and staffing needs based on the patients’ care and resource needs.

CMS says that it starts with the health inspections star rating, which CMS claims is based “on the three most recent comprehensive (annual) inspections, and inspections due to complaints in the last three years.” Then CMS calculates the nursing home’s overall quality rating of one to five stars by increasing or decreasing the number of stars for the nursing home’s health inspections star rating depending on the facility’s quality measures star rating and staffing data star rating, according to CMS.

Consumers reasonably believe CMS’ false claims on Nursing Home Compare about how CMS calculates health inspections star ratings for California nursing homes

As a result, consumers reasonably believe that a California nursing home’s health inspections star rating and overall quality rating are actually based on and take into account all complaint investigations at the nursing home by CDPH inspectors in the past three years. That is what CMS falsely claims. CMS also does not have a disclaimer on its Nursing Home Compare website to warn consumers that CMS’ calculations for a California nursing home’s health inspections star rating and overall quality rating totally exclude all state law-based enforcement actions against the nursing home. For example, CMS does not inform Nursing Home Compare users that the current health inspections rating of three out of five stars and overall quality rating of five stars for North American Care’s client facility Cottonwood Healthcare Center disregard the many substantiated complaints, incidents self-reported by facilities, state deficiency citations, and state penalties listed in secret number 4 in part 1 of this exposé.

8. CMS grades a nursing home’s health inspection performance “on a curve” to determine a facility’s health inspections star rating on Nursing Home Compare.

Medicare’s Nursing Home Compare omits important facts about how CMS calculates a nursing home’s health inspections star rating

CMS does not clearly and conspicuously disclose to consumers important, relevant facts about how CMS calculates a nursing home’s health inspections star rating on Nursing Home Compare. CMS says on the Nursing Home Compare website that CMS bases a nursing home’s health inspections star rating on the facility’s annual health inspections and complaint investigations within the past three years. But CMS omits the fact that CMS also bases a nursing home’s health inspections star rating on the relative health inspection performance of other nursing homes within the same state. In other words, CMS does not reveal to consumers that CMS essentially grades a nursing home’s health inspection performance “on a curve” when calculating the nursing home’s health inspections star rating for the Nursing Home Compare five-star rating system.

An obscure technical report by government contractors reveals that CMS grades a nursing home’s health inspection performance “on a curve”

An obscure technical report that government contractors recently prepared for CMS about the Nursing Home Compare five-star rating system explains how CMS grades a nursing home’s health inspection performance on a curve. “Ratings in the health inspection domain are based on the relative performance of facilities within a state,” says the June 7, 2013 Nursing Home Compare Five-Star Quality Rating System: Year Three Report, by Abt Associates Inc. and Colorado Foundation for Medical Care. The report also says that once a “health inspection score is calculated based on the number and severity of deficiencies cited on the three most recent annual surveys, as well as substantiated findings from the most recent 36 months of complaint investigations,” the score is then “compared to other facilities in the state, and facility ratings are determined using these criteria.”

The report explains how CMS uses the preliminary health inspection score to calculate a nursing home’s health inspections star rating, which totally disregards even serious state law-based enforcement actions against California nursing homes:

The top 10 percent (lowest 10 percent in terms of health inspection score) in each state receive a five-star rating. The middle 70 percent of facilities in each state receive a rating of two, three, or four stars, with an equal number (approximately 23.33 percent) in each rating category. The bottom 20 percent of facilities in each state receive a one-star rating.

The report’s explanation of the health inspections star rating on Nursing Home Compare means that even if a California nursing home’s preliminary health inspection score were based on all state and federal enforcement actions, which is not the case, CMS grades a nursing home’s health inspection performance on a curve. CMS does this, for example, by automatically giving a health inspections star rating of five stars to 10 percent of nursing homes that receive higher health inspection scores than other facilities in the same state. CMS automatically gives out a health inspections star rating of five stars to the “top 10 percent,” even if the “top 10 percent” include “five-star” nursing homes with a history of serious state and federal enforcement actions, including death-related class “AA” citations. By automatically giving out a predetermined percentage of five stars to nursing homes that may be merely the best of the bad, CMS is just like a lax school teacher who automatically gives out a predetermined percentage of report cards with a grade of A to students with a history of failing many tests.

9. A nursing home’s quality measures star rating and overall star rating are based on unaudited, limited data that the nursing home self-collects and self-reports to CMS.

Medicare’s Nursing Home Compare only touches on some of the limitations and criticism about how CMS calculates a nursing home’s quality measures star rating

On the Nursing Home Compare website, CMS acknowledges some serious limitations and criticism about how CMS calculates a nursing home’s quality measures star rating, on which a nursing home’s overall star rating is partly based. For instance, CMS warns consumers that it calculates a nursing home’s quality measures star rating using limited clinical data that the nursing home self-collects and self-reports to CMS about patients’ overall health status and physical and mental functioning during a limited seven-day assessment period. CMS also warns consumers that a nursing home’s self-reported clinical data, which are supposedly “quality measures,” such as the percentage of patients with bed sores, urinary tract infections, significant pain, or an increased need for help with activities of daily living, “represent only a few of the many aspects of care that may be important to you.” CMS says:

“Most of these quality measures reflect residents’ conditions during the seven days before the assessment was done.”

“The quality measures may not represent the residents’ clinical conditions during the entire time period between assessments.”

“The quality measures are self-reported by the nursing home, rather than collected and reported by an independent agency.”

By saying that “the quality measures are self-reported by the nursing home,” CMS itself casts into doubt the reliability and accuracy of a nursing home’s quality measures star rating and, therefore, overall star rating. CMS also admits that no one checks to verify the accuracy of a nursing home’s reported quality measures and that CMS just accepts that the nursing home’s claimed quality measures are accurate.

10. U.S. government reports have found that nursing homes’ self-reported patient assessments, underlying the quality measures star rating, are often inaccurate and unreliable.

A U.S. Government Accountability Office report warned CMS that “quality measures” on Medicare’s Nursing Home Compare were often inaccurate and unreliable

When CMS first proposed publishing nursing homes’ so-called quality measures on Nursing Home Compare, the U.S. Government Accountability Office (GAO) warned CMS that nursing homes’ self-reported patient assessment information, which supposedly measures quality of care, was often inaccurate and unreliable. The GAO—the independent, nonpartisan, investigative arm of the U.S. Congress—published its warning in the October 31, 2002 report Nursing Homes: Public Reporting of Quality Indicators Has Merit, but National Implementation Is Premature. In the report, the GAO said it was concerned that nursing homes’ self-reported patient assessment information, known as the Minimum Data Set (MDS), was not accurate or reliable.

A February 27, 2001 validation report on MDS data accuracy that health data expert Abt Associates Inc. prepared for CMS was one of the reasons for the GAO’s concern. The GAO pointed out that the results of Abt Associates’ February 27, 2001 report, Development and Testing of a Minimum Data Set Accuracy Verification Protocol, “identified widespread errors in the accuracy of facility-specific assessments used to calculate some of the quality indicators CMS has selected for November [2002] reporting.”

According to GAO analysis of Abt Associates’ report, although the percentage of patient assessment information (MDS data) with errors from 30 nursing homes sampled averaged 11.7 percent and was as high as 14.5 percent in some facilities, the “error rates for some of the individual MDS items used to calculate the quality indicators were much higher than the average error rate.” For example, the error rates in the MDS data for activities of daily living, bed sores, and pain management, which CMS now uses to calculate a nursing home’s quality measures star rating, were 34 to 39 percent, 18 percent, and 39 to 42 percent, respectively, Abt Associates’ report found.

U.S. Government Accountability Office urged CMS not to publish inaccurate and unreliable “quality measures” on Medicare’s Nursing Home Compare

Due to its concern that nursing homes’ self-reported patient assessment information was often inaccurate and unreliable, the GAO recommended in its October 31, 2002 report that CMS delay the publication of the quality measures on Nursing Home Compare. The GAO said that the delay was necessary “until . . . there is greater assurance that quality indicators are appropriate and based on accurate data.”

A U.S. Department of Health and Human Services’ Office of Inspector General report also found that nursing homes’ self-reported patient assessments were inaccurate

Abt Associates’ February 27, 2001 finding of nursing homes’ often inaccurate patient assessment data was consistent with a critical report by the U.S. Department of Health and Human Services’ (HHS) Office of Inspector General (OIG). The HHS OIG’s January 2001 report Nursing Home Resident Assessment: Quality of Care studied differences between facility-reported patient assessments and documentation in patients’ medical records. According to the HHS OIG’s report, nursing homes’ self-reported patient assessment data regarding, for example, activities of daily living and skin conditions are susceptible of inaccuracy.

The GAO’s October 31, 2002 report stated that “the [January 2001] OIG report noted that 40 percent of the nursing home MDS coordinators it surveyed identified the physical functioning section . . . as the most difficult to complete.” (The physical functioning section of the Minimum Data Set—which is the federally mandated process for assessing patients in Medicare- and Medicaid-certified nursing homes—is used to calculate the so-called quality measures with respect to activities of daily living.) The GAO’s report also said, “Some [nursing home MDS] coordinators explained that facility staff view a resident’s capabilities differently and thus the assessments tend to be subjective.”

11. Nursing home deficiency statements can reveal discrepancies between nurses’ patient assessments and reliable documentation in patients’ medical records.

A deficiency statement that CDPH issued to North American Health Care’s client facility Lake Balboa Care Center, in Van Nuys, California, stated that a Lake Balboa Care Center licensed nurse’s assessment of a post-stroke patient’s rash and skin infection on the “right lower back” disagreed with a dermatologist’s assessment of the same skin condition on the “right buttock.” In the August 17, 2005 deficiency statement issued to Lake Balboa Care Center, Cristina Descallar, RN, who was a nursing home inspector for the Los Angeles County Department of Health Services’ Health Facilities Inspection Division, North District office, found the following:

“This Requirement [regarding accurate patient assessments pursuant to 42 CFR § 483.20 (g)–(j)] is not met.”

“During a complaint investigation visit on July 8, 2005, at 9:50 a.m., Resident 1 was observed to have a reddened area (rash like) lesion to the right buttock [emphasis added].”

“According to the licensed nurse present at the time of the observation, the redness was new and she would inform the physician.”

“On July 18, 2005, during a follow-up visit, a review of the resident’s record revealed a dermatologist evaluated the resident on July 8, 2005, and was diagnosed with Tinea Corporis, a skin fungal infection to the right buttock [emphasis added].”

“However, the licensed nurse’s documentation of the site and treatment record identified the location of the lesion to the right lower back and not to the right buttock [emphasis added].”

“On the same day at 8:55 a.m. during an interview with the licensed nurse who identified the skin condition, she could not explain the site discrepancy between her assessment and the dermatologist’s assessment [emphasis added].”

“This Requirement [regarding developing, revising, and implementing a comprehensive care plan to meet a patient’s medical, nursing, and mental and psychosocial needs identified in the comprehensive patient assessment pursuant to § 42 CFR 483.20(d), 42 CFR § 483.20(k)(1), and 42 CFR § 483.25] is not met.”

“The dermatologist ordered a topical treatment and to change the incontinent brief [diaper] every two hours. However, there was no evidence that the plan of care was revised and updated to reflect the dermatologist’s order to change the brief [diaper] every two hours [emphasis added].”

“Based on observation, interview and record review, the interdisciplinary team failed to ensure that the resident’s plan of care is revised and updated in reference to the physician’s order to change the resident’s incontinent brief [diaper] every two hours for Resident 1 [emphasis added].”

“According to a plan of care dated January 17, 2005, for the resident’s bowel and bladder incontinence, the approaches included to keep the resident clean, dry and odor free, provide perineal care and toilet the resident as needed, and monitor for red areas. The plan of care did not reflect the use of the incontinent brief [diaper] and the frequency of changes [emphasis added].”

“The director of nursing stated CNAs have been instructed in checking and/or changing the brief [diaper] every two to three hours, however, she could not provide evidence of a system developed to ensure the resident’s incontinent brief [diaper] was checked and/or changed per a set schedule. In addition, she could not explain why after a week of the dermatologist’s order on July 8, 2005, the resident’s plan of care was not revised and updated to reflect the brief incontinent [diaper] change every two hours [emphasis added].”

Continue to part 3…

Please return to Elder Abuse Exposed.com’s blog within the next week or two to read part 3 of this three-part exposé, “Medicare Nursing Home Compare Five-Star Rating System: A Fraud on the Public?” In part 3, Elder Abuse Exposed.com will reveal the remaining five of the 16 secrets (numbers 12–16) that the Centers for Medicare and Medicaid Services (CMS) and “five-star” nursing homes do not want you to know about CMS’ five-star rating system on Nursing Home Compare.

You will then fully understand why 31 state attorneys general, the U.S. Government Accountability Office (GAO), the U.S. Department of Health and Human Services’ (HHS) Office of Inspector General (OIG), and U.S. Senator Charles Grassley (R-Iowa) have all sharply criticized the reliability and accuracy of the information on CMS’ nationally promoted, frequently visited Nursing Home Compare website.

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