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Nursing Homes Blast Biden Team’s New Inspection Reporting Policy

Jan. 25, 2023, 10:35 AM

The nursing home industry is asking the Biden administration to rescind a new policy of posting disputed facility inspection results on a public government website before the alleged “deficiencies” have been confirmed.

Beginning Wednesday, the Centers for Medicare & Medicaid Services will post on its Care Compare website allegations of nursing home noncompliance identified during state inspections—even when the findings are being formally challenged by the facility.

Disputed deficiencies can include severe instances of noncompliance such as immediate jeopardy citations, in which residents could be at risk for serious injury, harm, impairment, or death. Previously, when a nursing home challenged a deficiency citation, it was not posted to the website—where consumers get information about facilities—until the dispute resolution process was complete. That could take 60 days or longer.

The new policy “subverts” that process and should be rescinded, Katie Smith Sloan, president and CEO of LeadingAge, said in a statement. LeadingAge represents nonprofit aging services providers.

“Publicly posting these disputed citations on Nursing Home Care Compare before the dispute is resolved invalidates the process and the nursing home’s right to appeal. As the saying goes, you can’t un-ring the bell,” Smith Sloan said in a Jan. 23 letter to CMS Administrator Chiquita Brooks-LaSure.

Even if a citation is ultimately overturned, “the resident or family member has long ago moved on and the nursing home has missed the opportunity to provide care and services to this individual based on erroneous or incomplete information,” the letter added.

The American Health Care Association and National Center for Assisted Living agreed.

“We completely support transparency; however, CMS should not pre-emptively post survey findings that are under any level of appeal on Care Compare, as it could be misleading to patients and families,” the group said in a statement to Bloomberg Law. “A better solution would be to improve the” inspection “process to be consistent as well as the appeal process to be fair and timely.”

In its guidance announcing the policy change earlier this month, the CMS said consumers “should have as much information about nursing homes as possible to support their healthcare decisions. Allowing consumers to see all of the citations a facility receives regardless of whether” they’re being challenged “is consistent with our commitment to transparency and also enhances accountability and oversight of nursing homes,” the guidance said.

“Rather than ‘committing to transparency’ by rushing to provide potentially inaccurate information to the public, CMS should commit to integrity by resolving systemic issues” in the dispute process that “result in these delays,” Smith Sloan’s
statement said.

The AHCA/NCAL called on the CMS to improve the nursing home inspection process.

“We believe the current oversight system perpetuates a punitive approach where regulators focus on finding citations and issuing fines, rather than helping providers get better and recognize good faith efforts,” the group’s statement said.

In addition to the new reporting policy, the CMS guidance also included steps to help reduce the inappropriate use of antipsychotic medications in the facilities.

To contact the reporter on this story: Tony Pugh in Washington at tpugh@bloomberglaw.com

To contact the editor responsible for this story: Brent Bierman at bbierman@bloomberglaw.com