Analysis

Topic: Revises Nursing Home Survey Process; Requires Reporting of Survey Results
Sponsor: Representative Michael Green
Committee: Senior Health, Security and Retirement
Date Enrolled: June 1, 2000
Date of Analysis: June 12, 2000

Position: The Department of Consumer and Industry Services supports the bill.

Problem/Background:
Nursing homes are among the most highly regulated facilities overseen by State government. There are a number of agencies and associations that have responsibility for or represent long term care facilities, staff, and residents. Some of these include the Health Care Financing Administration (a branch of the U.S. Department of Health and Human Services), Bureau of Health Systems (part of the Michigan Department of Consumer and Industry Services, considered the State Agency to administer and regulate the federal Medicaid/Medicare certification for nursing homes), Michigan Department of Community Health (Medical Services Administration has responsibility for Medicaid/Medicare reimbursements/oversight), Citizens for Better Care (the State's Long Term Care Ombudsman), Health Care Association of Michigan (represents the nursing home administrator's), Michigan Association of Homes and Services for the Aging, etc. Because of the complex system of nursing home regulation, there have been numerous ongoing reforms at both the national and state levels.

Specific to this bill, representatives of nursing home administrators report that they see many inconsistencies in the way survey teams operate. They believe these inconsistencies are due to differing interpretations of key terms used by regulators to cite deficiencies of care, and in part, due to a lack of surveyor training and experience. They also suggest that the state regulators misinterpret federal nursing home regulations; therefore, causing Michigan to have a higher number of citations compared to other states. The nursing home administrators believe this causes a domino effect and negatively impacts the state economy. There has been some discussion that there needs to be a more collaborative process, rather than a punitive one, to ensure quality of care in Michigan nursing homes.

The current survey process includes annual unannounced surveys (some including evenings and weekends, completed on a 9-15 month cycle) of Michigan's 456 nursing homes (11 which are licensed only, not federally certified). There are six survey teams comprised of approximately fifteen health professionals on each team. The surveyor health professionals are master level nurses, dietitians, social workers, environmental sanitarians and registered nurses and pharmacists. Each new employee goes through and extensive state and federal training, including mock surveys, numerous nursing home visits, role-play, workshops, etc. They also must take and pass a federal exam before they are allowed to survey without a preceptor.

There is a representative from each of the health professions involved on an annual survey. Each nursing home must report their Minimum Data Set (MDS - a federally required program). Reports are run from MDS prior to a survey for indicators of potential problems in the home for the surveyors to look for. During, and especially at the completion of the survey (usually 3-4 days for an annual survey), the team members consult with each other to discuss their findings and write their report (HCFA-2567). The report is then reviewed by the Survey Monitor and/or Licensing Officer and simultaneously sent to HCFA and to the facility. There is an informal deficiency dispute resolution (IDDR) process available to the nursing home should they disagree with any of their citations. The IDDR's are reviewed independent from the state agency by the Michigan Peer Review Organization. CIS also does periodic reviews of citations with representatives from each survey team for quality assurance.

Citations can result in follow-up visits, greater oversight, civil fines, loss of Medicaid certification, loss of ability to training nurse aides on sight or by internal staff, ban on admissions, installation of a temporary manager, loss of license, and closing of a facility. There is a formal appeal process consisting of a hearing before an administrative law judge (at either the state or federal level, depending on the citation). A ruling by an administrative law judge may be appealed through the judicial system.

The Department of Consumer and Industry Services opposed the originally introduced version of House Bill 4560, but negotiations between the department, Representative Green, the industry, and Senator Shugars resulted in a compromise. The key component of the agreement is the requirement that newly hired surveyors' training include 10 days in a nursing home. This compromise language replaced a requirement that each survey team include at least one person with three years' experience in a nursing home. The original requirement would have made it extremely difficult for the department to fill vacancies in surveyor positions.

Description of Bill:
The bill amends 1978 PA 368 of the Public Health Code, sections 20151 and 20155 (MCL 333.20151 and 333.20155), and section 20155 as amended by 1996 PA 267.

Following are the proposed amendments:
- A visit made pursuant to a complaint shall be unannounced.
- After 12 months from the effective date of the bill, each newly hired nursing home surveyor will be required to observe actual operations in a nursing home for at least 10 days within a 14-day period as part of their basic training.
- A member of a nursing home survey team shall not be employed by a licensed nursing home or a nursing home management company doing business in Michigan at the time of conducting a survey.
- A nursing home surveyor cannot be assigned to survey at a nursing home in which they were an employee within the preceding five years.
- The department shall provide semiannual joint trainings with nursing home surveyors and providers on at least 1 of the 10 most frequently issued federal citations in Michigan during the past calendar year.
- The department shall develop a protocol for the review of citation patterns compared to regional outcomes and standards and complaints regarding the nursing home survey process. The review will result in a report provided to the legislature.
- Beginning with a nursing home surveyor's first full relicensure period after the effective date of this amendatory act, each surveyor who is a health professional licensee shall earn not less than 50% of his or her required continuing education credits, if any, in geriatric care, 30% if the surveyor is a Pharmacist.
- The department shall report to the Appropriations Subcommittees, the Senate and House of Representatives standing committees having jurisdiction over issues involving senior citizens, and the fiscal agencies on March 1 of each year on the initial and follow-up surveys conducted on all nursing homes in Michigan. The report shall include all of the following information: (a) the number of surveys conducted, (b) the number requiring follow-up surveys, (c) the number referred to the Michigan Public Health Institute for remediation, (d) the number of citations per nursing home, (e) the number of night and weekend complaints files, (f) the number of night and weekend responses to complaints conducted by the department, (g) the average length of time for the department to respond to a complaint filed against a nursing home, (h) the number and percentage of citations appealed, and (i) the number and percentage of citations overturned or modified, or both.
- The department shall report annually to the standing committees on appropriations and the standing committees having jurisdiction over issues involving senior citizens in the Senate and the House of Representatives on the percentage of nursing home citations that are appealed and the percentage of nursing home citations that are appealed and amended through the Informal Deficiency Dispute Resolution process.
- The department, in consultation with nursing home provider groups, the American Medical Directors Association, the Department of Community Health, the State Long-Term Care Ombudsman, and the Health Care Financing Administration, shall clarify certain terms used in Title XVIII and Title XIX (of the Social Security Act) and applied by the department to provide more consistent regulation of nursing homes in Michigan and shall instruct the surveyor in the use of the clarified terms. The terms to be clarified are: (a) immediate jeopardy, (b) harm, (c) potential harm, (d) avoidable, and (e) unavoidable.
- A nursing home shall post the nursing home's survey report in a conspicuous place within the nursing home for public review.

Arguments For: There are those that believe there are inconsistencies in the way survey teams operate due to differing interpretations of key terms and lack of training and experience. They believe that these inconsistencies are the cause for Michigan nursing homes being perceived as giving poor quality care which result in high staff turnover, damaged reputations, difficulties in training staff, difficulty in recruiting and retaining management staff, denial of Medicare and Medicaid reimbursement, financial problems, closed homes and bankruptcy. They also believe there should be a more collaborative process amongst the regulators and the industry representatives. It is believed that amending the Public Health Code with the aforementioned changes will set in motion reforms to correct the inconsistencies and provide monitoring to ensure improvements.

Arguments Against: The bill is unnecessary. The department's current process provides for team decisions and an independent review of all refuted citations. The majority of their citations are upheld. The department also currently provides joint surveyor and provider trainings and hosts a monthly meeting involving various representatives of the long term care industry.

Fiscal Information: The bill would have no fiscal impact on State or local government.

Economic Impact: There are those who believe implementing this bill will have a positive economic impact for the nursing homes due to a decrease of staff turnover, and less difficulties in training and recruiting staff. They also believe there would be fewer denials of Medicare and Medicaid reimbursements; thereby, preventing closings and bankruptcies.

Administrative Rules Impact: No new or revised administrative rules will be needed as a result of this bill.