(Part 3 of 3)

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Updated, October 23, 2013, 7:27 p.m. PDT

Unofficial, alternate U.S. Senate seal and U.S. Senator Charles Grassley (R-Iowa), former chairman of the U.S. Senate Special Committee on Aging, in the public domain. (Photo credits: U.S. government and U.S. Senate via Wikimedia Commons)

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

Secrets numbers 5–11 in part 2 of the three-part exposé apparently ruffled the feathers of some leading state nursing home regulators

A few weeks ago, in part 2 of the three-part exposé “Medicare Nursing Home Compare Five-Star Rating System: A Fraud on the Public?,” Elder Abuse Exposed.com revealed seven more of 16 secrets (numbers 5–11) that the Centers for Medicare and Medicaid Services (CMS) and “five-star” nursing homes will not tell you about Medicare’s nationally promoted, frequently visited Nursing Home Compare website:

Secret #5: Consumers must rely on the California Department of Public Health’s (CDPH’s) Health Facilities Consumer Information System (HFCIS), which is a state website that is not as heavily promoted as Nursing Home Compare, to see state enforcement actions against California nursing homes.

Secret #6: California nursing homes’ profile pages at CMS’ Nursing Home Compare do not link to CDPH’s HFCIS and do not warn consumers that Nursing Home Compare excludes even the highest-level state enforcement actions against California nursing homes, including elder abuse and patient homicides.

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

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

Secret #9: A U.S. 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.

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

Secret #11: Nursing home citations and deficiency statements can reveal discrepancies between nurses’ falsified patient assessments and typically more reliable documentation in patients’ medical records.

Secrets numbers 12–16 in part 3 of the three-part exposé will likely further ruffle the feathers of some state and federal nursing home regulators who do not want you to know these secrets

Today, in part 3 of the three-part exposé, Elder Abuse Exposed.com reveals the remaining five of the 16 secrets (numbers 12–16) 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 five new secrets, Elder Abuse Exposed.com is continuing to explore if there is any 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.

Authoritative reports by U.S. GAO, U.S. HHS-OIG, and U.S. Senate have criticized the reliability of information on Nursing Home Compare

Armed with the information in the 16 secrets in part 1, part 2, and part 3 of this three-part exposé, professional geriatric care managers, hospital case managers, elder care referral services, and consumers throughout the U.S. can now understand why Medicare’s Nursing Home Compare does not provide reliable, accurate quality-of-care information on the more than 15,000 Medicare- and Medicaid-certified nursing homes in the U.S. People who rely on Nursing Home Compare can also 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 Nursing Home Compare.

Message from email address belonging to Raymond Rusin, chief of Rhode Island Department of Health’s Office of Facilities Regulation, requests no more contact from Elder Abuse Exposed.com

Despite the well-documented facts in the three-part exposé, which admittedly is critical of state and federal nursing home regulators, it is not surprising that some leading nursing home regulators in the U.S. have reacted negatively to the exposé. For example, Elder Abuse Exposed.com received a September 26, 2013 email from the government email address belonging to Raymond Rusin, the chief of Rhode Island Department of Health’s Office of Facilities Regulation. According to the website for Mr. Rusin’s Office of Facilities Regulation, “We manage and coordinate the licensing of health care facilities [including Medicare- and Medicaid-certified nursing homes] and operate a public-centered, responsive and uniform enforcement program in accordance with state licensing standards.” From 2007 to 2008, Raymond Rusin was also the president of the Association of Health Facility Survey Agencies (AHFSA), which represents the state licensing and certification agencies in all 50 U.S. states and Washington, D.C.

The September 26, 2013 email said:

From: Raymond Rusin

Sent: Thursday, September 26, 2013 4:59 AM

To: Elder Abuse Exposed.com

Subject: Re: Medicare Nursing Home Compare Five-Star Rating System: A Fraud on the Public? (Part 2 of 3)

Please remove me from your distribution list. I find your blog and your assertions to be more convoluted, distorted, misleading, and above all unnecessarily disturbing to vulnerable elders than any governmental information. You should exert your energies in efforts to appropriately assist elders in understanding the information.

State and federal nursing home regulators who are critical of this exposé are invited to publicly respond on Elder Abuse Exposed.com’s website

Elder Abuse Exposed.com believes that its three-part exposé is necessary for consumers searching for safe nursing homes in which to place their loved ones and that the exposé is well documented. But Elder Abuse Exposed.com respectfully invites Raymond Rusin or any state or federal nursing home regulator who disagrees to send a response that shows what the facts are and specifically which assertions in the exposé are “more convoluted, distorted, misleading, and above all unnecessarily disturbing to vulnerable elders than any governmental information.” In the interest of open debate, opposing viewpoints will be published on this website so that the public can critically examine all the information, decide for themselves what the truth is regarding Nursing Home Compare, and make educated choices about placement of their loved ones in nursing homes. If nursing home regulators decline to send public comments, the lack of a response will also be published on this website.

“Facts don’t cease to exist because they are ignored,” said the British novelist and critic Aldous Huxley

The facts and evidence remain, even though some of the nation’s leading nursing home regulators may not want to be confronted with troubling but well-documented facts about the nation’s five-star rating system for nursing homes. As the second U.S. president, John Adams, said, “Facts are stubborn things; and whatever may be our wishes, our inclinations, or the dictates of our passion, they cannot alter the state of facts and evidence.” Elder Abuse Exposed.com is now presenting the “stubborn” facts and evidence in the final five of the 16 secrets (numbers 12–16) that some nursing home regulators may claim are “unnecessarily disturbing to vulnerable elders than any governmental information.”

Secrets 12–16 of 16 secrets Medicare does not want you to know about its five-star rating system on Nursing Home Compare

12. California nursing home inspectors are reluctant to impose civil penalties on nursing homes for reporting inaccurate patient assessments.

Los Angeles nursing home inspectors found a “discrepancy” between a Lake Balboa Care Center nurse’s assessment and a physician’s assessment of the same patient

Nursing home inspector Cristina Descallar, RN, and her then-supervisor at the Los Angeles County Department of Health Services’ Health Facilities Inspection Division, North District office, Michael Stampfli, issued an August 17, 2005 deficiency statement to the North American Health Care Inc. client facility featured in part 2 of this exposé, Lake Balboa Care Center, in Van Nuys, California. According to the August 17, 2005 deficiency statement, a Lake Balboa Care Center 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.” The August 17, 2005 deficiency statement said that Lake Balboa Care Center violated 42 CFR § 483.20 (g), which is the federal regulation stating that an “assessment must accurately reflect the resident’s status.”

Deficiency statement alleging a “discrepancy” between a Lake Balboa Care Center nurse’s assessment and a physician’s assessment did not include any civil penalty

The August 17, 2005 deficiency statement did not include a civil penalty under 42 CFR § 483.20 (j), which provides for a fine of up to $5,000 for each willfully false assessment, and made the following findings:

“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].”

“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].”

Deficiency statement alleging that “licensed nurse . . . could not explain the site discrepancy between her assessment and the dermatologist’s assessment” also did not include an allegation of willful falsification

According to the August 17, 2005 deficiency statement, Cristina Descallar and Michael Stampfli, who is now a health facilities evaluator III and program manager for the Los Angeles County Department of Public Health’s Health Facilities Inspection Division, also did not impose a civil penalty of up to $10,000, provided for by Health and Safety Code § 1424(g). They did not impose a penalty because, according to the August 17, 2005 deficiency statement, Ms. Descallar and Mr. Stampfli did not find that Lake Balboa Care Center’s patient assessment was a violation of California Health and Safety Code § 1424(f). Health and Safety Code § 1424(f) prohibits “willful material falsification or willful material omission in the health record of a patient of a long-term health care facility.”

CDPH inspectors have been enforcing California Health and Safety Code § 1424(f) for willful falsification against California nursing homes dramatically less in the past decade than in the previous decade

According to the Sacramento Bee’s September 18, 2011 exposé “Falsified Patient Records Are Untold Story of California Nursing Home Care,” by the Pulitzer Prize-winning investigative journalist Marjie Lundstrom, CDPH inspectors have been enforcing California Health and Safety Code § 1424(f) against California nursing homes dramatically less in the past decade than in the previous decade. Although “the state issued 180 citations against long-term care facilities for ‘willful material falsification,’ or doctoring records” in the 1990s, “the state issued only 29 citations for willful material falsification” in the entire following decade, between 2000 and 2010, The Bee said. The Bee also reported that Scott Vivona, chief of field operations for CDPH’s Licensing and Certification Program, “said he isn’t sure why nursing home citations for willful material falsification declined so steeply, while the total number of complaints and on-site inspections rose in the last decade.”

13. California attorney general’s Department of Justice has history of improperly prosecuting only low-level nursing home workers for false medical records while sparing nursing home owners.

California appeals court found that California AG’s DOJ “improperly charged” low-level workers at a Sun Healthcare Group nursing home in Escondido, California

The Bee’s September 18, 2011 article also found that the California attorney general’s Bureau of Medi-Cal Fraud and Elder Abuse (BMFEA), which rarely files criminal charges for fraudulent medical records in nursing homes, has a history of improperly charging only lower-level nursing home workers, instead of owners, for falsifying medical records. The Bee article referred to a case in which BMFEA used a hidden video camera in October 2003 in a patient’s room at Sun Healthcare Group’s SunBridge Care and Rehab for Escondido, East, in Escondido, California. The California attorney general’s Department of Justice, whose chief elder abuse prosecutor was Mark Zahner from December 1996 until he resigned last month amid criticism of selective enforcement against small-fry nursing home workers, then charged SunBridge Care and Rehab licensed vocational nurses and certified nursing assistants (CNAs) in January 2004 with felony elder abuse and falsifying medical records with fraudulent intent. “A year later, though, an appeals court found the employees had been improperly charged because the regulations applied to the facility’s owners, not its workers,” said The Bee.

14. A nursing home’s staffing star rating and overall star rating are based on unaudited, questionable data that the nursing home self-collects and self-reports.

Although CMS acknowledges that its calculation of a nursing home’s staffing star rating is based on limited, questionable data, CMS seems to minimize the inaccuracy and unreliability of the staffing data

The Centers for Medicare and Medicaid Services acknowledges but downplays some of the serious limitations regarding how CMS calculates a nursing home’s staffing star rating, which influences a nursing home’s overall star rating. CMS warns that it bases a nursing home’s staffing star rating on daily staffing hours that a nursing home regularly but infrequently reports to state regulators. For instance, CMS warns consumers that a nursing home’s staffing data, including registered nurse (RN) hours per resident day and total staffing hours per resident day by all licensed nurses and certified nursing assistants (CNAs), “are self-reported by the nursing home, rather than collected and reported by an independent agency.” CMS also says that a nursing home’s self-reported staffing data represent only a “snapshot in time” because staffing hours “are reported just once a year” and “represent staffing levels for a two-week period prior to the time of the state inspection.”

CMS admits that a nursing home’s staffing star rating and therefore overall star rating may not be reliable because the staffing data that a nursing home self-reports on two standard CMS forms (Form CMS-671 and Form CMS-672) may be inaccurate. “CMS checks the data for unusual reporting issues, like obvious data entry error, and asks states to follow up with nursing homes in those cases,” CMS says. But CMS warns that “there is currently no system to fully verify the accuracy of the staffing data that nursing homes report [emphasis added].” In an understatement that borders on an intentionally misleading or false statement, CMS warns consumers, “Because of this limitation and because staffing levels may have changed since the last inspection, you should be cautious when interpreting the data.”

Texas A&M University Health Science Center study found that nursing homes’ self-reported, unaudited staffing data were consistently inaccurate

A recent study by Texas A&M University Health Science Center researchers confirmed that the unaudited staffing data that nursing homes self-report on the CMS standard forms were consistently inaccurate. The study, “Comparing Staffing Levels in the Online Survey Certification and Reporting (OSCAR) System with the Medicaid Cost Report Data: Are Differences Systematic?,” in the August 2007 journal The Gerontologist, compared unaudited staffing data that 941 facilities self-reported on Form CMS-671 and Form CMS-672 to staffing data reported in audited Medicaid cost reports. The study found that for-profit and large nursing homes consistently over-reported nurse staffing levels in the unaudited CMS forms. In other words, for-profit and large nursing homes frequently reported more nursing staff, especially registered nurses, than they actually had and more nursing staff than the audited Medicaid cost reports reflected, according to the study. “These reporting errors will affect the validity of consumer information systems, regulatory activities, and health services research results, particularly research using OSCAR data to examine the relationship between staffing and quality [emphasis added],” the researchers said. The researchers also said that the results of their study “call for a more accurate reporting system.”

15. The validity of CMS’ five-star rating system for nursing homes is cast into doubt by news reports on rampant falsification of patient records and Medicare fraud.

Sacramento Bee exposé on falsified patient records in nursing homes calls into question reliability of self-reported staffing data CMS uses to calculate Nursing Home Compare star ratings

The concerns about the accuracy and validity of nursing homes’ self-reported staffing data, self-reported patient assessments, and the misleading nature of CMS’ entire five-star rating system become even clearer in light of recent news reports on widespread falsified patient records and fraudulent Medicare billing in nursing homes. For example, the Sacramento Bee’s September 18, 2011 “Falsified Patient Records Are Untold Story of California Nursing Home Care” revealed, “The practice of nursing homes altering patients’ medical records masks serious conditions and covers up care not given.” In the article, The Bee said that its “review of nearly 150 cases of alleged chart falsification in California reveals how the practice puts patients at risk and sometimes leads to death.” In addition, Elder Abuse Exposed.com’s November 29, 2012 “Nursing Home Medicare Fraud $1.5B a Year, Says New U.S. HHS-OIG Report” covered a November 2012 report by the U.S. Department of Health and Human Services’ (HHS) Office of Inspector General (OIG) that revealed that nursing homes ripped off $1.5 billion from U.S. taxpayers in just 2009 alone by submitting “inaccurate, medically unnecessary, and fraudulent claims” to Medicare.

November 2012 report on Medicare fraud by U.S. HHS-OIG calls into question accuracy of self-reported patient assessment data CMS uses to calculate Nursing Home Compare star ratings

The OIG’s November 2012 Inappropriate Payments to Skilled Nursing Facilities Cost Medicare More than a Billion Dollars in 2009 revealed facts that call into question the accuracy of nursing homes’ self-reported, unaudited patient assessment data, known as the Minimum Data Set (MDS). The OIG report found that in 2009 alone:

About 25 percent of all claims that nursing homes billed to Medicare were erroneous.

Nursing homes overcharged Medicare $1.5 billion.

Nursing homes wrongfully received the total $1.5 billion in taxpayer-funded Medicare payments.

The $1.5 billion that nursing homes misappropriated from Medicare represented 5.6 percent of the total $26.9 billion that Medicare paid nursing homes.

Most of the erroneous claims that nursing homes billed to Medicare were due to nursing homes that “upcoded the RUGs” (resource utilization groups), which means that nursing homes wrongfully billed Medicare for highly profitable levels of therapy and services that patients’ care and resource needs did not justify.

Nursing homes’ Medicare upcoding of claims resulted in nursing homes receiving $1.2 billion in misappropriated Medicare payments.

About 50 percent of nursing homes’ upcoded claims were for ultrahigh physical, occupational, or speech therapy, which is the highest and most expensive of five levels of therapy used to determine Medicare reimbursements to nursing homes.

For 57 percent of the upcoded claims, nursing homes reported levels of therapy on the Minimum Data Set (MDS)—the federally mandated standardized assessment of a patient’s clinical condition, functional status, and care needs—that did not match the reported levels in patients’ medical records.

For 25 percent of the upcoded claims, the therapy that nursing homes reported in patients’ medical records was medically unreasonable and unnecessary. For example, OIG’s November 2012 study said:

In one case, the SNF [skilled nursing facility] provided the highest level of therapy to the beneficiary even though the medical record indicated that the physician refused to sign the order for therapy. In another example, the SNF provided an excessive amount of therapy to the beneficiary given her condition. In another example, the SNF reported on the MDS that speech therapy was provided even though the record contained an evaluation of the beneficiary concluding that no speech therapy was needed and that speech therapy had not been provided.

About 2 percent of the erroneous claims that nursing homes billed to Medicare were for patients who were not covered by Medicare for skilled nursing care because the patients never received or needed the care.

For 47 percent of all claims that nursing homes billed to Medicare, nursing homes reported false information on the Minimum Data Set that was inconsistent with information in patients’ medical records.

A nursing home’s falsification of self-reported patient assessment data can also falsely increase the facility’s staffing and overall star ratings on CMS’ Nursing Home Compare

When a nursing home falsifies its self-reported patient assessment data—the Minimum Data Set (MDS), which the resource utilization group (RUG) data are based on—the nursing home’s staffing star rating and therefore overall star rating on CMS’ Nursing Home Compare can be falsely increased. The reason is that a nursing home’s staffing star rating is based on more than just the registered nurse (RN) hours per resident day and total staffing hours per resident day by all licensed nurses and certified nursing assistants (CNAs). The staffing star rating is also based on the level of the patients’ care and resource needs, which are supposed to be reflected in the nursing home’s RUG and MDS data.

16. State inspectors are complicit in what U.S. Senator Charles Grassley termed a “seriously corrupted” and “broken” nursing home inspection and enforcement system—a system that is the basis of CMS’ health inspection star ratings.

U.S. Senator Charles Grassley (R-Iowa) has exposed a “seriously corrupted” and “broken” nursing home inspection and enforcement system throughout the U.S.

Many U.S. Senate hearings and investigations on the quality of care in nursing homes in California and throughout the U.S. have uncovered a “seriously corrupted” and “broken” nursing home inspection and enforcement system. When he was the chairman of the U.S. Senate Special Committee on Aging, U.S. Senator Charles Grassley (R-Iowa), a staunch and longtime advocate of abused nursing home residents and government whistleblowers, held many hearings on the quality of care in U.S. nursing homes. Senator Grassley’s hearings included the landmark July 27 and 28, 1998 hearings Betrayal: The Quality of Care in California Nursing Homes. Since then, Senator Grassley has “pressed the federal government and states to improve the quality of nursing home care through more rigorous inspections and better information about inspection results for consumers through the federal Nursing Home Compare database.”

Senator Grassley has continued to be dedicated to improving nursing home care and CMS’ Nursing Home Compare partly because of what an investigation by Senator Grassley’s staff about ten years ago revealed about the nation’s nursing home inspection and enforcement system. In a July 7, 2004 letter to the then-administrator of CMS, Dr. Mark McClellan, Senator Grassley revealed the findings of the investigation by his staff, who “interviewed approximately 20 surveyors from around the country to obtain their views, guidance and opinions regarding the survey and certification process.” Senator Grassley told Dr. McClellan the following:

“The survey and certification process upon which we rely for accurate, objective and independent data on the operation and activities of facilities, is just plain broke.”

“The survey and certification process, in all likelihood, has been seriously corrupted” by “unscrupulous individuals.”

According to a state health department official, the official “received tips during the past six months from sources inside and outside the state Health Department alleging that surveyors are being pressured to go easy on long-term facilities.”

“Among those allegedly pressuring surveyors are state lawmakers acting on behalf of facility administrators.”

“Other surveyors advised that they are told to ‘rewrite’ or ‘change’ survey findings to make the facility ‘look better’ than it really was.”

“Surveyors routinely stated that they were ‘instructed’ by their superiors to downgrade citations or not write up facilities for certain high level deficiencies.”

“Some surveyors went on to say that if a high level deficiency is cited, most of the time it would be reduced to a lower level deficiency or completely omitted from the final report by management without consultation with the citing surveyor.”

“Still other surveyors told the Committee that they were routinely instructed ‘not’ to cite certain high level deficiencies because it was considered ineffective to ‘rock the boat’ because high level deficiencies would be omitted from the final report anyway.”

“Still others advised us that, from time to time, multiple violations were bundled and cited as one violation instead of many.”

“State inspectors understate the existence of serious quality-of-care problems.”

“Apparently, and according to the surveyors interviewed, the scope and severity of surveys is being low-balled.”

“Perhaps, most troubling is the fact that several surveyors stated that there is an unspoken ‘political presence’ intertwined in the survey process that puts pressure on surveyors to ‘overlook’ or ‘downgrade’ deficiencies.”

“Many stated that high level state bureaucrats ‘tie their hands’ routinely.”

“The surveyors themselves are demoralized when blatant quality of care deficiencies and findings are watered down, substantively altered, and/or blatantly ignored or dismissed.”

“Former surveyors stated that they resigned or retired from their positions out of sheer disgust at how their hands were tied while doing their jobs.”

GAO report in 2008 examined the extent of the “substantial understatement” of serious deficiencies in nursing homes by state inspectors throughout the U.S.

In response to a request by Senator Grassley and the then-chairman of the U.S. Senate Special Committee on Aging, Herb Kohl (D-WI), the U.S. Government Accountability Office studied the longstanding problem of state nursing home inspectors who either fail to issue citations for serious deficiencies or downgrade deficiencies to a lower level. The GAO issued the first part of its findings of the study in the May 9, 2008 report Nursing Homes: Federal Monitoring Surveys Demonstrate Continued Understatement of Serious Care Problems and CMS Oversight Weaknesses. The GAO’s May 9, 2008 report found that “15 percent of federal nursing home surveys nationwide and 25 percent of these surveys in nine states identified state surveys that failed to cite serious deficiencies.”

GAO report in 2009 examined specific factors that contribute to the “substantial understatement” of serious deficiencies in nursing homes by state inspectors

The GAO issued the second part of its findings of the study requested by Senators Grassley and Kohl in the November 24, 2009 report Nursing Homes: Addressing the Factors Underlying Understatement of Serious Care Problems Requires Sustained CMS and State Commitment. The GAO’s November 24, 2009 report examined specific factors that contribute to what the GAO has euphemistically referred to as state nursing home inspectors’ “substantial understatement” of serious deficiencies in nursing homes. The contributory factors that the GAO focused on included weaknesses in the CMS inspection process, workforce shortages, poor training of state inspectors, state supervisory reviews, non-citation practices by state licensing agencies, and external pressure on inspectors from legislators and the nursing home industry.

GAO’s 2009 report corroborated Senator Charles Grassley’s 2004 findings of the “seriously corrupted” and “broken” nursing home inspection and enforcement system

To examine the specific factors contributing to state inspectors’ “substantial understatement” of serious deficiencies in nursing homes, the GAO sent questionnaires to state nursing home inspectors and state agency directors. The GAO also examined federal and state nursing home inspection results and interviewed officials from some of CMS’ regional offices and CMS’ Survey and Certification Group. Based on the questionnaire responses from 2,340 nursing home inspectors in 49 states and Washington, D.C., and from 50 state agency directors, the GAO’s November 24, 2009 report made the following findings:

“Approximately 20 percent of surveyors nationwide and over 40 percent of surveyors in five states reported that their state agency had at least one of the following noncitation practices: (1) not citing certain deficiencies, (2) not citing deficiencies above a certain scope and severity level, and (3) allowing nursing homes to correct deficiencies without receiving a citation.”

“In four states over 30 percent of surveyors reported their state agency had this noncitation practice [that surveyors not cite certain deficiencies], including over 60 percent of New Mexico surveyors.”

“In some cases, surveyors reported receiving direct instructions from supervisors not to cite certain deficiencies.”

“Surveyors commented that some state agency practices—such as providing inadequate time to observe and document deficiencies or frequently deleting deficiency citations during supervisory review—seemed like implicit or indirect leadership from the agency to avoid citing deficiencies.”

“This official [a state agency director] told us that when surveyors’ deficiencies are deleted or downgraded, the surveyors may choose not to cite similar deficiencies in the future because they perceive being overruled as an implicit state directive not to cite those deficiencies.”

“In five states, at least 30 percent of surveyors reported their state agency allowed nursing homes to correct deficiencies without citing those deficiencies on the official survey record.”

“Comments from surveyors suggest that state agencies may use this type of practice [allowing nursing homes to correct deficiencies without citing those deficiencies on the official survey record] to avoid actions that nursing homes or the industry would dispute or interpret as excessive.”

“Several surveyors commented that they were instructed to cite only one deficiency for a single type of negative outcome, even when more than one problem existed.”

“CMS regional officials we interviewed were not aware of any current statewide noncitation practices.”

“State agency directors from 12 states reported experiencing external pressure from at least one of the following stakeholder groups: (1) the nursing home surveyed, (2) the nursing home industry, or (3) state or federal legislators.”

“Examples of such external pressure include pressure to reduce federal or state nursing home regulation or to delete specific deficiencies cited by the state agency.”

A state inspector said in response to the GAO questionnaire, “The larger corporations often pressure our [state agency] Central Office to change and delete citations. Our Central Office changes not only wording but content and intent of the citation, when they were not on site. There is a great deal of political push and pull—the interference from State Senators and Representatives protecting their re-electability and not the rights of the residents (who don’t vote).”

“State agency officials from State A told us that the state nursing home association organized several forums to garner public and legislative support for curtailing state regulation of facilities.”

“According to officials in this state [State A], the influential industry groups threatened to request legislation to move the state agency to a different department and to deny the confirmation of the director’s gubernatorial appointment if the citations of G level or higher deficiencies increased.”

“Officials from State B also told us that the Governor’s office instructed the state agency not to recommend facilities for enforcement actions.”

“A third state agency director commented that the agency had been called before state legislative committees in 2007–2008 to defend deficiency citations that led to the termination of facilities.”

“A fourth state agency director also commented on our questionnaire that legislators had pressured the state agency on behalf of nursing homes to get citations reduced or eliminated and prevent enforcement actions for the facilities.”

“A few surveyors commented that at times when nursing homes were unhappy with their survey results the homes or their state legislators would ask state agency management to remove the citations from the survey record, resulting in the deletion or downgrading of deficiencies.”

“Comments from a few surveyors indicated that they may steer clear of citing deficiencies when they perceive the citation might cause a home to complain or exert pressure for changes in the survey record.”

“State agency officials from two states—State A and an additional fifth state—reported that state legislators or industry representatives had appeared on-site during nursing home surveys.”

“Although in some cases the legislators just observed the survey process, officials from these two states explained that third parties also have interfered with the process by questioning or intimidating surveyors.”

“The state agency director from the fifth state commented on our questionnaire that the nursing home industry sent legal staff on-site during surveys to interfere with the survey process.”

“Officials from State A told us that during one survey, a home’s lawyer was on-site reviewing nursing home documentation before surveyors were given access to these documents.”

“Officials from State A suggested the need for other support as well, such as creating a federal law that would require state agencies to report external pressure and ensure whistleblower protections for state officials who report pressure and allowing sanctions for inappropriate conduct.”

“Over 40 percent of surveyors in four states reported that their states’ informal dispute resolution processes favored concerns of nursing home operators over resident welfare.”

“In one state, the state agency director reported that the nursing home industry sent association representatives to the IDR [informal dispute resolution], which increased the contentiousness of the process.”

“In another state, officials told us that a large nursing home chain worked with the state legislature to set up an alternative to the state IDR [informal dispute resolution] process, which has been used only by facilities in this chain.”

“Through this alternative appeals process, both the state agency and the nursing home have legal representation, and compliance decisions are made by an adjudicator. According to agency officials in this state, the adjudicators for this alternative appeals process do not always have health care backgrounds.”

Although the state nursing home inspection and enforcement system is known to be “seriously corrupted,” what motivates the federal CMS to publish the misleading Nursing Home Compare?

Elder Abuse Exposed.com’s experience with official misconduct by California nursing home and assisted living regulators confirms the GAO’s and Senator Grassley’s finding of “seriously corrupted” nursing home inspection and enforcement system

Elder Abuse Exposed.com members and network of associated members throughout California have had extensive experience dealing with nursing home and assisted living facility inspectors, supervisors, and upper-level program managers. These California officials have worked for CDPH’s Licensing and Certification Program and the California Department of Social Services’ Community Care Licensing Division (CCLD). As a result, Elder Abuse Exposed.com members have personally experienced a lot of official misconduct that has corroborated the GAO’s and Senator Grassley’s investigations revealing the “seriously corrupted” and “broken” nursing home inspection and enforcement system. For example, Elder Abuse Exposed.com has seen how the “unspoken political presence” and “high-level state bureaucrats,” first identified by Senator Grassley, have put pressure on some well-intentioned but intimidated CDPH inspectors to issue deficiency citations referring only to state law instead of federal law. That practice by CDPH inspectors, which, according to CDPH spokesman Corey Egel, was supposed to end before April 2012, has ensured that CMS’ five-star rating system has excluded many violations by wealthy, politically connected nursing homes.

Elder Abuse Exposed.com publicly and respectfully asks CMS’ administrator, Marilyn Tavenner, to respond to seven serious questions about CMS’ Nursing Home Compare five-star rating system

Elder Abuse Exposed.com cannot understand what motivates the federal CMS to publish its five-star rating system on the Nursing Home Compare website in light of the system’s many serious deficiencies detailed in the 16 secrets in part 1, part 2, and part 3 of this exposé. The fact that CMS has published the Nursing Home Compare five-star rating system leads to the following questions for CMS’ administrator, Marilyn Tavenner:

When CMS first proposed publishing nursing homes’ so-called quality measures on Nursing Home Compare, why did CMS ignore the warnings in the U.S. Government Accountability Office’s October 31, 2002 report Nursing Homes: Public Reporting of Quality Indicators Has Merit, but National Implementation Is Premature?

Why did CMS ignore the warning in the GAO’s October 31, 2002 report that nursing homes’ self-reported patient assessment information, which supposedly measures quality of care, was often inaccurate, unreliable, and invalid?

Why did CMS ignore the strong recommendation in the GAO’s October 31, 2002 report that CMS delay the publication of nursing homes’ so-called quality measures on Nursing Home Compare “until . . . there is greater assurance that quality indicators are appropriate and based on accurate data”?

Why did CMS ignore the GAO’s concern that a February 27, 2001 validation report on Minimum Data Set (MDS) data accuracy that health data expert Abt Associates Inc. prepared for CMS “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”?

Is there any documentation that CMS will share with Elder Abuse Exposed.com’s readers pertaining to CMS’ decision to ignore the warnings, recommendations, and concerns in the GAO’s October 31, 2002 report?

If CMS were subject to state and federal truth-in-advertising laws, wouldn’t CMS be required to prominently disclose on Nursing Home Compare that CMS’ five-star rating system currently disregards all deficiency citations and penalties, even for the most serious violations, in which CDPH inspectors have referred only to California law and not federal law?

Does CMS’ five-star rating system on the Nursing Home Compare website provide false and misleading advertising for so-called five-star-rated nursing homes that have a history of serious state enforcement actions, which Nursing Home Compare ignores, including “AA” citations for deaths due to elder abuse?

Elder Abuse Exposed.com is expressing to the CMS administrator serious concerns about CMS’ Nursing Home Compare, just as Senator Grassley did almost a decade ago

Elder Abuse Exposed.com is expressing to CMS’ administrator, Marilyn Tavenner, these serious concerns about CMS’ Nursing Home Compare website, just as Senator Grassley did almost a decade ago to former CMS administrator Dr. Mark McClellan. On July 13, 2004, Senator Grassley followed up his July 7, 2004 letter to Dr. McClellan (referred to above in secret number 16) with another letter to Dr. McClellan. In his July 13, 2004 letter, Senator Grassley said that the findings of the June 2004 report Inspection Results on Nursing Home Compare: Completeness and Accuracy, by the U.S. Department of Health and Human Services’ Office of Inspector General, lead to the following troubling but well-documented facts about Nursing Home Compare:

Anyone who entrusts their loved one to a nursing home based on CMS’ Nursing Home Compare stands a one in five chance that the information relied upon was inaccurate. Couple those odds with the disturbing reality that the very integrity of the quality data contained in the nursing home inspection results and complaint histories has been called into question and the bedrock value of Nursing Home Compare crumbles.

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