Nursing Homes, States Vary in Meeting New Inspection Demands

June 9, 2020, 9:46 AM

Some states are struggling to meet a new federal goal of inspecting all nursing homes by July 31. And industry representatives say they need more collaboration from the Trump administration.

The Centers for Medicare & Medicaid Services this month called on states to complete an on-site inspection of all nursing homes by July 31 or risk losing some federal funding to help fight Covid-19. The agency also increased fines and penalties for nursing homes with repeated infection-control deficiencies.

Both moves are designed to curb the nearly 32,000 Covid-related deaths and more than 95,000 infections that U.S. nursing homes reported through May 31. About 54% of the inspections have already been completed. But variation among individual states is wide, with some having completed all inspections and others having completed less than 17%.

Industry participants agree, however, that completing the other 46% by July 31 will be a daunting task during the pandemic.

Some say the get-tough measures by the CMS are heavy-handed and punitive at a time when struggling facilities need support and assistance.

“I recognize that CMS only has only one tool, and that’s a hammer, but this is a situation where you need a much more collaborative approach,” said Christopher Laxton, executive director of AMDA—The Society for Post-Acute and Long-Term Care Medicine.

Vincent Mor, a professor of health services policy and practice at Brown University’s School of Public Health, said the inspections goal and July 31 deadline are unrealistic. States would have to inspect nearly half, some 7,000, of the nation’s Medicare and Medicaid facilities to meet the goal, the CMS estimates.

The timing of the “inspection tear” is also problematic, Mor said, as facilities struggle to provide adequate testing, protective gear, and staff. “They don’t want an inspector in the door right now,” he said. “They’re trying to do other things.”

In Maryland, “strike teams” made up of health department personnel and National Guard members have visited 60% of the state’s nursing homes, said Charles Gischlar, a state health department spokesman in an email.

Maryland also ordered universal testing for nursing home residents and staff, “which led to another 250 site visits,” Gischlar said.

Accountability or Immunity?

While the facilities have been hit hard by Covid-19, the industry has benefited from the CMS’s March suspension of routine on-site inspections, said Jessica Moore, San Francisco-based partner with Constantine Cannon LLP.

In addition, some states have issued executive orders or passed laws protecting nursing homes from civil liability for the injury or death of Covid-19 patients in their care, she said.

“So when you have things like inspections and immunity coming into play, perhaps we need to balance that with measures of accountability such as what CMS has done,” said Moore, who represents whistleblowers alleging fraud against government health programs.

CMS Administrator Seema Verma said it’s time to ratchet up the pressure on underperforming facilities.

Preliminary data from CMS shows nursing homes that had a one-star quality rating were more likely to have Covid-19 infections and deaths than those with a five-star quality rating.

Other factors, however, have been found to be more accurate predictors of infections, according to a recent study published in the Journal of the American Geriatrics Society. It found that large facilities, independent facilities, those in urban areas, and those with higher percentages of African-American residents were significant determinants of high rates of Covid-19 infections. Quality ratings and past infection violations were far less of a factor.

An Increased Workload

The enforcement push is expected to increase the workload for overwhelmed facilities and inspectors, said Laxton, whose group represents more than 50,000 medical directors, doctors, and other caregivers who work in nursing homes and other long-term care facilities.

“You can’t require a nursing home or even a state survey agency to do something they’re incapable of doing,” he said.

The picture of how state inspections are going is mixed. Colorado, Nevada, and North Dakota have already inspected all their nursing homes, CMS data shows. Connecticut and Oregon have inspected more than 98%, while Delaware has inspected 89%. Arizona, Indiana, Tennessee, and Vermont have done about half of their inspections.

CMS data shows that Maryland, Pennsylvania, Virginia, Idaho, and Iowa have only inspected between 13% and 16.5% of their facilities. But Nate Wardle, a spokesman for the Pennsylvania Department of Health, said in an email message that CMS data for his state isn’t up to date.

He said Pennsylania surveyors have conducted 1,473 nursing home inspections since February. That includes 657 infection focused infection-control inspections between March 13 and May 15.

“We are assessing whether or not this meets the CMS equirement or if we need to do another round of inspections,” Wardle said. About half of the state’s 695 nursing homes have no Covid-19 cases.

Verma said reporting and data entry errors and technical glitches will likely produce incorrect data as the kinks are worked out of the CMS’ new nursing home data collection system.

Half of Fatalities

As of June 4, data from 40 states collected by the Kaiser Family Foundation shows that deaths in nursing homes and assisted living facilities make up 45% of all Covid-19 fatalities in these states. Assisted living facilities aren’t part of the CMS inspection mandate because they are regulated by states.

Those kinds of numbers validate “the need for the assistance that nursing homes have been calling for since the beginning of this pandemic,” Mark Parkinson, president and CEO of the American Health Care Association/National Center for Assisted Living, said in a statement. Parkinson’s organization represents more than 14,000 nursing homes and assisted living communities.

The enhanced enforcement effort could make a bad situation worse if inspectors “are only looking for reasons to find deficiencies and issue fines instead of identifying ways for nursing homes to make real changes,” Parkinson said.

Brian Brown, a founding partner at Brown & Barron LLC in Baltimore who represents residents in nursing home abuse cases, said regulators can’t ignore deficiencies.

“Shouldn’t they be looking for things that they’re not doing right? And forcing them to comply and find ways to help them improve?” he asked.

Brown said the CMS is right to get tough on nursing homes because infection control has been a problem for years.

Most nursing homes are meeting safety and quality guidelines, according to CMS. Only about 25% of facilities reported at least one Covid-19 case, and about 20% reported at least one Covid-19-related death.

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

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Brent Bierman at bbierman@bloomberglaw.com

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