Are Nursing Home Surveys Punitive? Compliance vs. Quality

May 20th, 2014 by Rod Baird

More regulations most certainly result in more processes for nursing homes, but do they help create better quality outcomes? This week’s post on LTC Management explores 2 different views on this topic: that of the The Center for Medicare Advocacy (CMA) and another from industry advocates.

Back in February, the DHHS Office of Inspector General issued a report on Adverse Events in Skilled Nursing Facilities: National Incidence Among Medicare Beneficiaries.  My April 1st blog reviewed possible solutions and commented on the proposals of other organizations.

Two of those organizations were The Center for Medicare Advocacy (CMA) and Leading Age. As a physician group manager, I respect the work of both organizations. As I opined back in April, Leading Age’s Dr. Cheryl Phillips made the most constructive comments focusing on how to advance a quality agenda instead of the ramping up of punitive surveys.

Then on May 8th, the CMA issued a reply to Leading Age stating – Despite evidence of poor quality of care, the nursing home industry continues calls for a “new examination” of the public oversight process, choosing to believe the oversight process, rather than the care itself, is the problem.” Nevertheless, in light of the industry’s continued attacks on the regulatory system and its call for a new method of nursing facility oversight, it is time to set the record straight again: the regulatory system does not need a “new examination.” Rather, it needs to be fully and effectively implemented.”

The CMA is Wrong

Dr. Phillips at LeadingAge has it right. Pushing for more enforcement in the existing Survey process will not improve quality – just compliance. What few outside of the care delivery systems seem to understand is how precisely aligned provider behavior is with payment & regulation. The PA/LTC system we have today is totally a product of the CMS rules and regulations that began in 1965. Anyone who’s worked in healthcare over the past 40+ years of Medicare/Medicaid can track each change in the programs – they are like layers of development in a big city – each built on top of parts from the past. Almost nothing is new – it is just remodeled.

More Regulations Result In More Processes – Not Necessarily Better Outcomes

Every regulated facility service, to a greater or lesser extent, is designed around regulations. Those regulations are almost always organized around ‘processing’ controls, not outcomes. I’m certain of that, having spent the first 25 years of my healthcare career managing operations in an increasingly large nonprofit PA/LTC network. Everything we did was designed with much more than 50% of our attention focused on the regulations. We were fortunate – learning early how to satisfy surveyors while achieving our own objectives. We also sensed that if we ever got behind the regulations, we’d never catch-up.

Many of the early operators in the Nursing Home industry were similarly talented – they could work to create a quality product (for the time), and operate successfully under the regulations (e.g. cost based Part A payments). With the advent of Prospective Payment and the increasing focus on compliance, many of the earlier operators sold or reorganized. What was left was mostly made up of larger organizations that learned how to successfully manage TO the regulations. If anyone doubts that regulations (i.e. penalties) drive Nursing Home behavior – ask any LTC Nurse. They will uniformly tell you that they spend most of their time documenting for the survey, rather than delivering hands-on nursing care.

Still In Doubt?

Look at any EHR/EMR, regardless of the provider community. Every one of them, including the one we developed, has a core built on regulatory compliance. Additionally, EMRs directed to the PA/LTC setting are particularly focused on regulations and reimbursement – that’s what they were designed for – compliance.

Rather than focusing on ‘fully and effectively implementing’ current regulations we need to understand the results we get today are the creation of those regulations.

Every week, as a LTC practice manager/consultant, I see the difficulty our providers face in developing a ‘shared-care/virtual-care-team’ model. We have no problem getting dialogue with facility managers/owners, but they simply don’t have the resources available for quality improvement unless they can directly identify how it connects to their survey.

Regulations do determine behavior – consider Antipsychotic Medication Use Rates. Once CMS decided to make this a major focus of the survey process, use rates began dropping. The only challenge is determining which of the current regulations actually improve quality. That is the question that Dr. Phillips raised, and what the CMA failed to answer.

Rod Baird

About Rod Baird

Rod Baird is the Founder and President of Geriatric Practice Management (GPM). Since 1977, he’s led provider and management organizations that deliver care to Medicare/Medicaid beneficiaries. Past programs he’s overseen include home health, personal care, hospice, rehabilitation hospitals, adult and psych daycare, alcohol/drug rehabilitation, industrial medicine and primary care practices. The Centers for Medicare and Medicaid Services (CMS) selected Baird as one of only 73 individuals to serve with its InnovationProgram. His educational background includes a Master’s Degree in Physical Chemistry from the American University, Washington, D.C.

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