Among the many reasons to plan to age in place is abuse that visits residents at nursing homes. According to McKnights Long-term Care News, abuse deficiencies cited in nursing homes more than doubled in four years, increasing from 430 in 2013 to 875 in 2017. These were among the findings of a 2019 Government Accountability Office (GAO) report. The most common form of abuse consist of physical and verbal abuse by staff, comprising more than half (58%) of all abuse deficiencies analyzed.
The Report also concluded, shockingly, that most sexual abuse of nursing home residents come at the hands of nursing home staff, rather than other residents or third parties.
The Report emphasized that abuse in nursing homes is often under-reported. Moreover, the GAO reported to Congress that even information on reported abuse and perpetrator type is not readily available. Centers for Medicare & Medicaid Services (CMS) does not require the state survey agencies to record the type of abuse and perpetrator. Worse, when this information is recorded, it cannot be easily analyzed. Therefore, GAO reviewed a representative sample of abuse deficiency narratives from 2016 through 2017.
Nursing home residents often have physical or cognitive limitations that can leave them particularly vulnerable to abuse. Abuse of nursing home residents occur in many forms, including physical, mental, verbal, and sexual, and can be committed by staff, residents, or others in the nursing home. Any incident of abuse is a serious occurrence and can result in potentially devastating consequences for residents, including lasting mental anguish, serious injury, or death. News stories in recent years have noted disturbing examples of nursing home residents who have been sexually assaulted and physically abused.
Federal law clearly mandates that nursing homes receiving Medicare or Medicaid payments ensure that residents are free from abuse. To help ensure this, CMS, an agency within the Department of Health and Human Services (HHS), defines the quality standards that nursing homes must meet in order to participate in the Medicare and Medicaid programs. To
monitor compliance with these standards, CMS enters into agreements with agencies in each state government—known as state survey agencies—and oversees the work the state survey agencies do. This work includes conducting required, comprehensive, on-site standard surveys of every nursing home approximately once each year and investigating both complaints from the public and incidents self-reported by the nursing home (referred to as facility-reported incidents) regarding resident care or safety.
If a surveyor determines that a nursing home violated a federal standard during a survey or investigation, then the home receives a deficiency citation, also known as a deficiency. In addition to state survey agencies, there are other state and local agencies that may be involved in investigating abuse in nursing homes, including Adult Protective Services, local law enforcement, and Medicaid Fraud Control Units (MFCU) in each state, which are tasked with investigating and prosecuting a variety of health care-related crimes.
Attaining and keeping nursing home quality is not a new challenge, and numerous studies and reports have identified CMS challenges in protecting residents from abuse and weaknesses in CMS’s oversight. For example, in multiple reports dating back to 1998, GAO identified weaknesses in federal and state activities designed to correct quality problems in nursing homes. Specifically, in a 2002 report, the GAO found that CMS needed to do more to protect nursing home residents from abuse, and GAO made five recommendations to help CMS facilitate the reporting, investigation, and prevention of abuse in nursing homes.
In April 2019 GAO reported that CMS had failed to address gaps in federal oversight of nursing home abuse investigations in Oregon—an issue that we uncovered during the course of our broader work on nursing home resident abuse. Further, reports by the HHS
Office of the Inspector General (OIG) have also reviewed incidents of resident abuse and raised concerns about CMS’s procedures.
It is important to note that the legal duty is imposed on each nursing home with CMS oversight helping insure the provides fulfill their duties. If providers perform well their obligations, oversight would be made irrelevant, and more importantly the incidence of abuse would decline. One might conclude that with abuse rising so dramatically, even as CMS is tightening its oversight capabilities, anger with the industry would be palpable. In a recent hearing, hovever, Members of the Senate Finance Committee "directed much of their ire not at providers but rather at CMS:
“Not only have abusive incidents doubled in recent years, but the GAO has found that CMS – the agency charged with ensuring that these facilities meet federal quality standards – often cannot access information about abusive incidents after they occur and, therefore, cannot take the necessary steps to remedy the situation,” said Sen. Thomas R. Carper (D-DE).
“CMS needs to ramp up its oversight efforts and fix the problems identified by the Government Accountability Office,” added Sen. Charles Grassley (R-IA), the chairman of the committee.
All parties at the hearing, which included American Health Care Association’s President and CEO Mark Parkinson, stressed a need and commitment to reducing abuse and neglect in nursing homes. They all also found common ground on better background check practices. Ranking committee member Sen. Ron Wyden (D-OR) expressed surprise that 13 states have no background check process for nursing home employees.
There are inconsistencies and loopholes throughout the country when it comes to nursing home oversight, including about providers having to self-attest their ownership, testified Megan H. Tinker, Senior Advisor for Legal Review of the Office of Counsel to the Inspector General, Health and Human Services. Additionally, a provider can be eligible for Medicaid if it is already in the Medicare program, even if there hasn’t been a background check through Medicare, Tinker added. “That leaves open a possibility a provider could be a provider for Medicaid with no background check,” she said.
Despite agreement on needing to reduce abuse and neglect, policy makers and experts differed on the best way to achieve those goals, specifically when it comes to funding.
“Medicaid covers two out of three nursing home residents. We need to strengthen Medicaid,” said Sen. Debbie Stabenow (D-MI).
In response to a question about mandatory staffing from Sen. Catherine Cortez Masto (D-NV), AHCA’s Parkinson harkened back to his days running nursing homes, acknowledging that more workers is generally better but also how it depends on how careful and efficient a given certified nursing assistant is.
He also noted that in order to achieve a higher ratio of staff to residents of 4.1 hours per resident per day, as some have suggested, it would cost potentially an additional $6 billion.
“If there’s a mandatory staffing requirement that would be paid for, we’d be all for it,” he said. “But if it’s not paid for, there is no practical way to do it.”
Lori Smetanka, Executive Director of the National Consumer Voice for Quality Long-Term Care, pushed back in subsequent remarks.
“I think we do need to look at how the money is currently being spent by long-term care facilities,” she said. Her group encourages auditing before assessing how much additional funding is needed.
The GAO made the following recommendations to curb abuse in its report:
- Require that abuse and perpetrator type be submitted by state survey agencies in CMS’s federal databases for deficiency, complaint and facility-reported incident data, and that CMS systematically assess trends in these data.
- Develop and disseminate guidance — including a standardized form — to all state survey agencies on the information nursing homes and covered individuals should include on facility-reported incidents.
- Require state survey agencies to immediately refer complaints and surveys to law enforcement (and, when applicable, to Medicaid Fraud Control Units) if they have a reasonable suspicion that a crime against a resident has occurred when the complaint is received.
- Conduct oversight of state survey agencies to ensure referrals of complaints, surveys and substantiated incidents with reasonable suspicion of a crime are referred to law enforcement (and, when applicable, to MFCUs) in a timely fashion.
- Develop guidance for state survey agencies clarifying that allegations verified by evidence should be substantiated and reported to law enforcement and state registries in cases where citing a federal deficiency may not be appropriate.
- Provide guidance on what information should be contained in the referral of abuse allegations to law enforcement.
The hearing was live-streamed and can be viewed on the committee’s website.
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