News and Analysis — As OBRA nears 20, criticism continues

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It's been nearly 20 years since the government passed landmark nursing home regulation reform. There has been improvement, but that is no reason to celebrate wildly, believes Senate Special Committee on Aging Chairman Herbert Kohl.

The Wisconsin Democrat scolded providers and regulators at a congressional hearing in May, complaining that too many facilities are getting away with providing substandard care. His remarks came shortly after the General Accountability Office released a report saying federal overseers have penalized numerous poor performing nursing homes with penalties that are too light, and allowed them to "yo-yo" in and out of compliance.
"(S)hamefully, quite a few nursing homes are getting away with providing a lot less, putting a good number of the seniors living in long-term care facilities at risk," Kohl said.
He said he would request updates every two months from federal health officials on progress regarding GAO recommendations.
The survey and certification system has failed nursing homes, measuring success not by quality of care but by a tally of regulatory fines and violations, said Mary Ousley, past chair of the American Health Care Association.

'Bad apples' undermine OBRA's legacy
The school year is over, but you can excuse nursing home operators if they feel like they've been giving a report card full of "I's" and a mandate to go to summer school.
That's what a less-than-glowing May progress report will do for you. And that's just what providers received at a Senate Special Committee on Aging hearing that assessed strides made since passage of a historic nursing home reform law nearly 20 years ago.
"Incomplete" was the ultimate grade branded on nursing homes by regulators and lawmakers. Sometimes it wasn't clear if it was providers or their overseers, namely the Centers for Medicare & Medicaid Services, being chastised for not taking better care of the nation's frail and elderly.
As a result, Committee Chairman Sen. Herbert Kohl (D-WI) wound up giving both groups "homework" for the coming months. Kohl assigned CMS the task of reporting back to the Aging Committee every two months on progress made toward recommendations from the General Accountability Office.
"We will continue to press the administration to tighten up the enforcement system and make sanctions stick," Kohl said.
"It is troubling that fines and sanctions are often not levied – even when inspectors find violations that leave residents suffering," he added. "For facilities that continually slip in and out of compliance, regulators must take swifter action. Bad apples give the nursing home industry a black eye, and they have no business being in this business."
Providers essentially blamed what they called a flawed survey and certification system, a label agreed upon by all sides, though they diverge on how to fix it.
Testifying on behalf of the American Health Care Association, former Board Chairwoman Mary Ousley noted a recent GAO report that showed a 30% reduction in "actual harm" deficiencies.
"It is unclear whether this was due to an understatement of deficiencies, as the GAO concluded, or, as we would argue, an indication of real quality improvement," she noted.
"This dichotomy points to the central problem in understanding today's oversight process, and underscores the inability to distinguish between the failure to identify deficiencies and real quality improvement." The survey system, she added, is focused more on "process compliance rather than actual patient care outcomes."
The carcass Aging Committee members and hearing witnesses all picked at was the GAO's March report on nursing facilities, "Efforts to strengthen federal enforcement have not deterred some homes from repeatedly harming residents."GAO Director of Health Care Kathryn G. Allen discussed the latest findings of the report.
"A small but significant share of nursing homes nationwide continues to experience qualify-of-care problems," Allen testified. She said that 1 in 5 nursing homes nationwide were cited for "actual harm" or "immediate jeopardy" deficiencies in 2006.
More troublesome, she said, was the fact that cited facilities could "yo-yo" in and out of compliance, often paying relatively light monetary penalties, if any.
"The immediate sanctions policy is complex and appears to have induced only temporary compliance in certain nursing homes with histories of repeated noncompliance," she said.
Good but ...
Lynch and Kohl were sure to start by saying the majority of nursing home operators and workers have been doing a fine job. But this wasn't a hearing to celebrate the successes of nursing home reform or to express satisfaction with the status quo.
"The task for ensuring high-quality nursing home care is still not complete," she said.
To long-time observers, beyond the GAO report findings, hearing testimony was largely expected spin and positioning. Included were statements critical of providers by Alice Hedt, executive director of the National Citizens' Coalition for Nursing Home Reform, and nurse staffing researcher Charlene Harrington of the University of California-San Francisco.
Providers opposed many of the GAO's recommendations for rule toughening (see sidebar).
CMS' Nursing Home Compare website should include more information only if it is "validated, current, accurate" and said in a way people can understand, Ousley testified.
She also urged caution in the way and speed federal regulators might designate poor performers.
And, in opposition to one of the GAO's strongest calls for reform, there was no bending on providers' long held view that civil monetary penalties should not be paid until "due process" was had. Similarly, Ousley said, a standardized grid to determine CMP amounts should not be used because it would not always take into account "specific circumstances around noncompliance."