The federal Office of Inspector General recently published  its “OIG’s Top Unimplemented Recommendations: Solutions To Reduce Fraud, Waste, and Abuse in HHS Programs.” 

In the 94-page document, the agency focuses on the top 25 unimplemented recommendations it believes would most positively affect U.S. Department of Health and Human Services programs by way of either cost savings, public health, and program effectiveness and efficiency.

I’ll give you one guess at what type of healthcare provider the first two recommendations dealt with… yes, nursing homes.  

The previous year’s OIG top 25 recommendations also dealt with nursing homes as the first listed recommendation. That focused on ensuring that nursing homes are implementing actions to prevent COVID-19 and protecting residents, placing a higher priority on infection control surveys.  Probably not surprising given the pandemic and the Centers for Medicare & Medicaid Services’ view of nursing homes during the pandemic. (Check out this.)

Significantly, OIG explicitly states in each of its top recommendations that the order of listings in its top 25 recommendations does not necessarily indicate the agency’s priorities. But certainly being at the top of the list perhaps signals something about OIG’s focus these days, and that focus seems to be nursing homes.

This year, not only were nursing homes listed as part of the top recommendations, but they were listed in both numbers 1 and 2 of OIG’s top 25 recommendations to reduce fraud, waste and abuse. Specifically, OIG listed the below recommendation measures that it also believes would assist in protecting patients:

1. CMS should take actions to ensure that incidents of potential abuse or neglect of Medicare and Medicaid beneficiaries, including those in nursing homes and hospice care as well as children enrolled in Medicaid, are identified and reported. 

2. CMS should address inappropriate nursing home discharges through training, by implementing deferred initiatives, and by assessing the effectiveness of its enforcement against inappropriate facility-initiated discharges. (This is the first time this particular recommendation is appearing).

These two (again, listed as the first two) top unimplemented recommendations are telling for a few reasons.  First, with regard to No. 1, clearly OIG sees that CMS enforcement is somehow lax, because by making it a top recommendation, the watchdog is signaling that this is an “easy” way, in its eyes, to help eliminate this noted problem for waste, fraud and abuse. Namely abuse and neglect in nursing homes. 

That is troubling, as we have certainly seen increased enforcement by CMS over the last two years in nursing home surveys and penalties. But OIG is basically saying that abuse and neglect must be focused on even more through CMS’ survey process.

Second, with regard to No. 2 above, OIG believes that nursing homes are inappropriately discharging residents, and that they are being cited for not complying with involuntary discharge notice requirements. OIG noted that CMS is attempting to fix this problem, and it remains a top focus for both agencies:

CMS stated that it plans to provide training, including clarification of guidance around facility-initiated discharges and/or transfers. CMS will also incorporate an assessment of the effectiveness of enforcement actions in response to inappropriate facility-initiated discharges.  Top Recommendations, p. 7.

If that weren’t enough, OIG also provided an update on last year’s infection control recommendations for nursing homes. In the Top Recommendations, OIG stated that it is aggressively focusing on staffing as a way to improve infection control, suggesting OIG’s belief or assumption that staffing shortages are causing infection control problems:

“Regarding nursing home staffing data, in January 2022 CMS began posting weekend staffing and staff turnover measures on the Care Compare website. CMS also shares Payroll Based Journal staffing data, including lists of facilities that potentially have insufficient weekend staffing, with state survey agencies.”  Top Recommendations, p. 10.

OIG goes on to highlight its heightened focus on nursing homes in this regard:

“This progress is part of larger nursing home reforms that the administration and CMS are pursuing. OIG continues to invest substantially in oversight of nursing home quality and safety and will continue to monitor CMS’s progress on related reforms.”  Top Recommendations, p. 10 (emphasis added).

So clearly, OIG and CMS are working together to “reform” nursing home care, and OIG is fixing its gaze on nursing homes. But their idea of reforming nursing homes is not to physically or monetarily help facilities per se with staffing shortages or by providing money for more staff.  

Their idea of reform is further enforcement, more aggressive enforcement, and a focus on monitoring and enforcing against facilities with staffing shortages. Ignoring the exorbitant CMS fines and penalties in the survey process currently, and the difficulties that facilities are having with recruiting and maintaining adequate staff, the OIG recommends that increased oversight and enforcement will force facilities to improve staffing as a means to affect change (… that “reform” they are focused on) in nursing homes for years to come. 

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected].

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.