The Office of the New York State Comptroller recently released the results of an audit entitled Nursing Home Surveillance. The purpose of the audit was to determine whether the Department of Health consistently follows federal and state regulations and procedures for conducting nursing home surveys, and whether the survey process is effective in improving the quality of care and safety in nursing homes.
The Department of Health (Division of Nursing Homes and Intermediate Care Facilities for Individuals with Intellectual Disabilities Surveillance) is responsible for ensuring nursing homes comply with federal and state regulations. The Division acts as an agent for the Centers for Medicare and Medicaid Services (CMS) in monitoring the quality of care in nursing homes. Compliance is assessed through Standard Health and Life Safety Code surveys. Facility inspections are unannounced and must be conducted at least every 15.9 months as per CMS guidelines. The Division also performs complaint surveys to investigate issues and nursing home reported incidents that may be non-compliant with federal or state regulations. Follow up surveys are conducted to monitor nursing homes’ progress in correcting previously noted deficiencies. If a survey reveals violations, citations are issued. Depending on the severity of the citation, the Department of Health (DOH) implements enforcement actions ranging from fines, directed plan of correction, and if warranted, facility closure. Between January 1, 2007 and May 12, 2015, the Division conducted over 39,000 surveys and issued more than 50,000 citations. In addition, the Division received more than 79,000 complaints and incident reports, of which more than 37,000 were investigated.
For the Nursing Home Surveillance Audit, the surveys conducted from January 1, 2012 through September 17, 2015 were reviewed. The findings were as follows:
- The DOH met quality measures for conducting Standard Health and Complaint surveys in accordance with federal regulations. Between calendar years 2007 and 2014, the DOH generally performed facility inspections (Standard Health and Life Safety Code Surveys) within the 15.9 month cycle. The statewide average between surveys was 11.8 months. The DOH also met its obligation regarding accuracy and scope and severity ratings of citation.
- Auditors found that the DOH was not diligent in collecting fines. The multiple enforcement actions available under state laws and CMS guidelines were not utilized. The Department chose not to impose fines for categories of violations that account for almost 85% of problems found. Typically, fines are imposed for problems resulting in actual harm to an individual or problems determined to be placing people in immediate jeopardy. These account for less than 4% of all violations. Inefficiencies in rendering fines in a timely manner were discovered. In some cases, delays of up to six years between when the violation is cited and the fine is imposed.
- The DOH has only one part-time employee assigned to process enforcement referrals and prepare enforcement packets.
- A waiting period of at least six months exists before processing enforcements in the event that fines are amended or withdrawn as a result of appeals.
- The DOH utilizes a database that is outdated as per staff.
Auditors analyzed data from the calendar year 2014 and discovered that the average time between when deficiencies were identified and fines were issued was nearly four years. For fines issued in 2007, the average time was six months. Furthermore, between January 2014 and July 2015, the DOH collected $152,000 in fines. This compares to $628,000 in fines in 2011. Auditors also noted that prior to 2008, the maximum fine allowed for a violation was $2,000 per incident. This was applicable even in cases which resulted in serious physical harm or death. The law was amended to permit $5,000 fines for repeat violations and $10,000 fines for violations resulting in serious physical harm to a resident. This law is scheduled to expire in April 2017. Action needs to be taken by lawmakers to prevent the maximum fine from reverting back to $2,000.
The key recommendations resulting from this audit are as follows:
- Eliminate the backlog in enforcement activity and maintain timely processing of future imposition of state fines.
- Initiate the assessment of fines earlier in order to better align survey results with the assessed penalty.
- Develop a more comprehensive system to track and monitor enforcement actions.
- Consider assessing state fines for additional citations covering lower level infarctions issued at the Greater than Minimal Harm level (D-F rating), allowable by the Public Health Law and CMS guidelines, especially for facilities that demonstrate a pattern of repetitive citations.
Within 90 days following the final release of the report of the audit, the Commissioner of Health is required to report to the Governor, the State Comptroller and the leaders of the Legislature and fiscal committees what steps have been taken implement the recommendations and if recommendations have not been executed the reason why.
Full report is available at: http://osc.state.ny.us/audits/allaudits/093016/15s26.pdf
If you have questions about the New York State audit, please contact Harmony Healthcare International by clicking here or calling our office at (800) 530-4413.