Casey: 1 in 5 Facilities on Poor-Performing Nursing Homes List Overdue for Inspections

Washington, D.C. – Today, U.S. Senator Bob Casey (D-PA), Chairman of the Senate Special Committee on Aging, raised concerns about the timeliness of inspections at the Nation’s poorest performing nursing homes in a letter sent to Centers for Medicare and Medicaid Services (CMS) Administrator Chiquita Brooks-LaSure. The letter, which detailed disturbing instances of sub-standard care collected from inspection reports, requested information on the lag in surveys at nursing homes in a program for poor-performing facilities.

The nursing homes Senator Casey reviewed are in the Special Focus Facility (SFF) program and are required by law to be surveyed every 6 months. The review found that as of the end of February 2022, 1 in 5 nursing homes in the SFF program were overdue for inspections based on CMS inspection reports. Senator Casey requested information about how CMS will bolster the SFF program to ensure consistent oversight over these nursing homes and timely and transparent reporting of data for consumers.

“Conducting regular standard surveys of SFF participants is an important means of ensuring safety, accountability and compliance with Federal law,” Senator Casey wrote. “These delays would be concerning on their own but also are not isolated to recent months: Aging Committee staff identified multiple examples of SFF participants that went long periods without these statutorily required inspections.”

“The standard survey delays for SFF participants have taken place at a time when HHS’s independent watchdog has warned of states falling behind on nursing home inspections generally,” Casey added. “The inspection data and persistent deficiencies, coupled with the [Office of Inspector General’s] recent reports, leave me concerned about the timeliness, consistency and effectiveness of SFF program oversight and the wellbeing of residents in those facilities.”

Nursing homes in the SFF program “substantially fail” to meet the required care standards and resident protections afforded by the Medicare and Medicaid programs. In March 2021, Senator Casey introduced the bipartisan Nursing Home Reform Modernization Act, which would expand the SFF program to ensure that all of the facilities nominated as candidates for the program—more than 400 nursing homes—can receive adequate oversight and enforcement, as well as resources to improve quality of care. During his State of the Union address, President Biden called on Congress and the Administration to prioritize these quality improvement initiatives outlined in the Administration’s plan to improve nursing home quality and safety.

In 2019, CMS began publishing the names of more than 400 low-performing nursing homes that are candidates for enhanced oversight in the SFF program in response to bipartisan oversight led by Senator Casey and Senator Pat Toomey (R-PA), who released a groundbreaking report on the SFF program earlier that year.

Throughout the pandemic, Senator Casey led efforts in the U.S. Congress to combat the COVID-19 tragedy unfolding in our Nation’s nursing homes. Senator Casey led multiple oversight initiatives, calling on the federal government to release data on case counts and deaths among residents and later on COVID-19 vaccination rates in nursing homes. These successful initiatives led to the publication of data sets that shed light on the true extent of the crisis and gave families needed transparency regarding the pace of vaccinations among residents and staff. Further, Senator Casey’s leadership led to the successful passage of legislation bringing oversight resources to bear in nursing homes as part of the bipartisan CARES Act in 2020, and through the American Rescue Plan Act in 2021 to invest in “strike teams” to ensure adequate staffing in nursing homes affected by COVID-19 outbreaks.

Read the letter to CMS here.

May 9, 2022

The Honorable Chiquita Brooks-LaSure

Administrator

Centers for Medicare & Medicaid Services

200 Independence Avenue, S.W.

Washington, DC 20201

Dear Administrator Brooks-LaSure,

I write with concern about the timeliness of surveys conducted at nursing homes in the Special Focus Facility (SFF) program and seek information about how these low-performing facilities will be overseen as the White House’s recently announced plans to overhaul the program are implemented. A review of standard surveys conducted at nursing homes in the SFF program appears to show that many of these facilities are not being surveyed as frequently as required by law. These apparent survey delays among SFF participants are part of a larger backlog the Office of Inspector General for the Department of Health and Human Services (OIG) has identified as a concern. I appreciate the White House’s attention to the SFF program following my bipartisan efforts with Senator Toomey to improve program transparency through oversight and expand the program’s reach through legislation. I am also aware that the Centers for Medicare & Medicaid (CMS) recently issued guidance to address the backlog of inspections at SFF participants and nursing homes generally. In addition to the Biden Administration’s efforts to strengthen the SFF program, I seek assurance that current survey requirements are being met and transparent information about these facilities is maximized for residents, their families and the public.

Conducting regular standard surveys of SFF participants is an important means of ensuring safety, accountability and compliance with Federal law. Nursing homes in the SFF program are subject to standard surveys every six months, whereas nursing homes outside the SFF program are typically subject to standard surveys every 15 months. Representing less than 1 percent of all nursing homes, SFF participants “substantially fail” to meet the required care standards and resident protections afforded by the Medicare and Medicaid programs. There also are approximately 400 SFF “candidates” that do not receive additional oversight due to limited resources at CMS, despite being indistinguishable from SFF participants in terms of their qualifications for enhanced oversight. Like all nursing homes, SFF participants and SFF candidates also are subject to “abbreviated surveys” for complaints and infection control, which take place between standard surveys and are narrower in focus. The statutory survey requirements coupled with CMS’s publicly identifying SFF participants and SFF candidates help residents and their families make better informed choices about their care.

Data, Documents Shows Persistent Survey Delays at SFFs

Aging Committee staff conducted a review that found 15 nursing homes in the SFF program had gone six months or longer without a standard survey as of CMS’s February 23, 2022 program report. Spread across 14 states, these nursing homes represent 22 percent of the 63 facilities in the SFF program that were subject to more frequent inspections at the time. Four of the facilities had gone at least seven months without a standard survey; three more had gone eight months without a standard survey, according to the program report.

These delays would be concerning on their own but also are not isolated to recent months: Aging Committee staff identified multiple examples of SFF participants that went long periods without these statutorily required inspections. These delays took place after CMS allowed states to restart standard surveys in August 2020, following restrictions put in place early in the COVID-19 pandemic. In Florida, a SFF participant went 12 months with no standard survey from September 2020 to September 2021. In California, one SFF participant did not have a standard survey for more than 10 months after the CMS survey restrictions were lifted. And in Georgia, the state’s two SFFs went without standard surveys for 9 months and 10 months, respectively.

Nursing homes that go long periods between standard surveys can accumulate deficiencies in the absence of regular oversight. One Missouri SFF participant that has been in the program for three-and-a-half years provides an illustrative example. The most recent standard survey was conducted in July 2021, the first since September 2019, and 11 months after CMS lifted its survey restrictions. The September 2019 survey identified six deficiencies while the July 2021 survey identified 20—more than twice the state and national average—including failing to document resident falls and failing to timely provide blood cancer medication to a resident. In the intervening time, a March 2021 survey conducted in response to a complaint detailed how a resident was found injured in “an unoccupied room on an unoccupied hall, with the door shut.” The facility’s social worker, who only learned of the fall when they overheard coworkers “gossiping” two days later, reported that “[t]he resident looked bad, had a cut under one eye, a bruise on the forehead and what appeared as possible rug burn to his/her nose and cheek.” The nursing home was cited for failing to ensure the resident, who also had been hit with an office binder by a staff member in an incident captured on a security camera and investigated in October 2020, was kept free from abuse and neglect.

In another instance, one Minnesota SFF participant with a pattern of abuse and neglect deficiencies was not subject to a standard survey until June 2021—10 months after CMS reinstated them. The facility had been cited for five deficiencies related to the prevention and reporting of abuse and neglect in 2019 and 2020, including several in its most recent standard survey in November 2019. The November 2019 standard survey detailed three residents who had been harmed by the nursing home’s practices, including a resident who was hospitalized and died “when the facility failed to monitor for ongoing rectal bleeding.” When the June 2021 standard survey was conducted, the nursing home was cited for failing to timely report suspected abuse and neglect to proper authorities.

Finally, an infection control survey described how an Ohio SFF participant failed to take appropriate measures against the spread of COVID-19, such as providing protective equipment, ensure that it was used correctly, and screen facility staff. The January 2021 survey reported that 23 of the facility’s 25 residents tested positive for COVID-19 and one was admitted to an intensive care unit. The nursing home, which entered the SFF program in January 2021, was not subject to a standard survey until May 2021, nine months after CMS lifted its standard survey restrictions. Its most recent standard survey was conducted in March 2019.

I am concerned that similar survey delays identified by recent OIG reports may leave residents at risk at the 400-plus SFF candidates. Senator Toomey and I introduced the Nursing Home Reform Modernization Act, S. 782, last year to enhance accountability at SFF participant and candidate facilities and provide them with on-site consultation to facilitate improvement and enhance quality of care. In addition to continuing to push to get that legislation passed into law, I plan to closely track the Biden Administration’s implementation of the White House’s proposals to extend the reach and impact of the SFF program.

SFF Survey Delays Part of Broader Backlog Identified by the OIG

The standard survey delays for SFF participants have taken place at a time when HHS’s independent watchdog has warned of states falling behind on nursing home inspections generally. The OIG has reported that backlogs of inspections have persisted since CMS suspended standard surveys in response to the outbreak of the COVID-19 pandemic from March 2020 to August 2020 in favor of concentrating on infection control and complaint surveys. The OIG issued a report last year that found 71 percent of nursing homes nationally had gone at least 16 months without a standard survey as of May 31, 2021, with backlogs of nursing homes surveyed ranging from 22 percent to 96 percent by state. In a recent briefing, the OIG informed Aging Committee staff that while survey backlogs nationally were trending in the right direction, as of mid-February, 45 percent of facilities had gone 16 months or more without a standard survey, according to data on the CMS website. The OIG’s concerns regarding survey timeliness predate the pandemic. For example, in a recent report identifying 28 states that repeatedly missed CMS’s performance goals for nursing home oversight between FY2015 and FY2018, the OIG found that 41 percent of “performance measures that States failed to meet were the result of States not conducting high-priority complaint surveys or standard surveys within required timeframes.” The OIG noted “staffing shortages as a root cause of State survey performance problems,” and issued several recommendations to CMS intended to improve its monitoring of state survey programs.

Conclusion and Questions

The inspection data and persistent deficiencies, coupled with the OIG’s recent reports, leave me concerned about the timeliness, consistency and effectiveness of SFF program oversight and the wellbeing of residents in those facilities. In order to ensure everything possible is being done to protect residents living in these nursing homes, please respond to the following questions not later than June 6, 2022.

1. The White House recently announced changes to the SFF program as part of a broad plan to improve the quality of nursing home care in our Nation. I would appreciate you providing additional specifics about the steps CMS anticipates taking to bolster the SFF program and the timeline on which it intends to do so. In addition, I would appreciate your commitment to keep my office apprised of progress as CMS develops its policy. In addition, please provide the following information:
   • At the end of February 2021, there were 63 nursing homes in the SFF program, representing 71 percent of the program’s maximum capacity. Please provide a list of the number of facilities in the SFF program and the maximum capacity of the program for each of the last 36 months.
   • What is the average and median amount of time that nursing homes currently spend as SFF participants before graduating, and as candidates? Do these data vary widely by state?
   • What percentage of nursing homes that have graduated or exited the candidate list return to the program as a participant or candidate within five years?
   • How would CMS balance efforts to scrutinize more facilities with ensuring that the poorest performing facilities are not inappropriately "graduating" from the program before their performance has sufficiently improved?
2. Given the current and past standard survey delays Aging Committee staff have identified at SFF participants, what plans are currently in place to ensure continuous and timely surveys of SFF participants during periods of national and regional emergencies, such as the COVID-19 pandemic and catastrophic weather events? What lessons from the pandemic can CMS apply to better monitoring this program in the future?
3. Staffing shortages and staff turnover at state survey agencies were cited by the OIG as a “root cause” of delays in nursing home surveys. What, if any, information can CMS share about the scope of staffing shortages at state survey agencies, and the extent to which it contributes to delays in nursing home surveys? What is CMS doing to address these chronic problems? What strategies, if any, has CMS considered to improve survey agency staffing? What types of technical assistance does CMS provide to states to assist them in conducting timely and effective oversight of SFFs and SFF candidates?
4. I am concerned that information about SFF participants and candidates is difficult for residents, their families and the public to find. For example, Care Compare website users must navigate two links and a dropdown menu to access a lengthy and densely worded PDF in a small font size that lists SFF participants and candidates. In another instance, the Overdue Recertification Surveys Report on the Survey and Certification Quality, Certifications, and Oversite website of CMS provides important transparency to track survey backlogs, as well as Provider, Deficiency, Enforcement, and Abuse reports. However, the search engine does not allow users to search for SFF participants or candidates. What steps can CMS take to make information about SFF participants and candidates more easily accessible for Care Compare users? What steps does CMS plan to take to enable queries of SFF participants and SFF candidates in its survey oversight search engine to facilitate SFF program oversight?
5. Recent reporting by the New York Times identified longstanding practices that contribute to a lack of transparency for residents and their families regarding serious problems at nursing homes that remain sealed from public view. Given the frequency with which SFF participants and SFF candidates are cited for serious deficiencies, it seems likely that residents living in these nursing homes and their families may be unaware of the very existence of such appeals, much less the details of the citation at issue. The chief medical officer of the nursing home industry’s largest trade group was recently quoted as saying that the appeals process should be faster and more transparent. Given the lack of transparency and the call by the nursing home industry for speed to address concerns, what steps is CMS taking to improve transparency of the appeals process and actions to reduce the amount of time between a complaint and resolution?