Grassley, Waxman Oppose Nursing Home Change

WASHINGTON – Sen. Chuck Grassley and Rep. Henry Waxman today sent the following
letter to the Centers for Medicare and Medicaid Services.

Thomas A. Scully
Administrator
Centers for Medicare and Medicaid Services
200 Independence Ave., SW
Washington, DC 20201

Dear Mr. Scully:

We are writing with regard to a proposal by the Centers for Medicare and Medicaid Services
(CMS) to change the way that nursing home inspectors cite the scope and severity of violations of
federal nursing home standards. The proposal would make changes to the State Operations Manual,
which provides guidelines for state nursing home inspectors, and was made available to the public for
comments in September 2001.

This proposal will relax federal nursing home standards, contradicting your previous public
commitments to strengthen these standards. Two months ago, White House spokesman Ari Fleischer
said that there were no plans to weaken nursing home inspection: “We're going to beef up and
strengthen nursing home regulations. We're working to strengthen accountability.” (1) Similarly, you
said: “We are pursuing initiatives to strengthen accountability and improve monitoring of nursing
homes.” (2) The latest proposal conflicts with those promises to the public, and we are urging that
it not be implemented.

As you know, when inspectors identify a problem in a nursing home, they cite the home for
a violation. In these citations, inspectors denote the seriousness of the violation by providing an
indication of the severity (the level of health risk posed by a violation) and the scope (the number of
residents affected). There are three levels used to identify the scope of a violation: “isolated,”
“pattern,” and “widespread.” As we understand it, the CMS proposal would change the regulations
to allow inspectors to cite violations as “widespread” only if they are able to document that 75% or
more of a facility’s residents are affected by the problem.

The fundamental problem with your proposal is that it does not reflect how inspectors
investigate nursing homes. As you know, significant parts of all federal and state inspections of
nursing homes are based on reviews of the medical records of, and interviews with, a representative
sample of nursing home residents. These representative samples are chosen because it would be too
time-consuming and costly to interview and review the records of every nursing home resident. Your
proposal, however, would not allow inspectors to cite incidences of widespread harm for any
violation that is identified based on representative samples. The proposal states that “[s]ince the
sample is never seventy-five percent or more of the facility’s residents, these deficiencies can never
reach widespread scope, even if every resident in the sample were affected.” (3)

If your proposal is finalized, thousands of nursing homes with serious violations could receive
lesser citations. The minority staff of the Government Reform Committee analyzed the most recent
annual inspection reports for all Medicare- or Medicaid-certified nursing homes and the records of
all nursing home complaint investigations from January 2000 through November 2001. During these
inspections and investigations, nursing homes were cited for over 6,800 widespread harm violations
that caused more than minimal harm to residents. In almost 300 of these cases, nursing homes were
cited for widespread harm violations that caused death or serious injury to residents, or had the
potential to do so. The 6,800 widespread harm violations included over 350 violations for resident
abuse, untreated pressure sores, improper use of restraints, and preventable accidents. Under your
proposal, many of these violations would be cited at a lower scope level.

Examples of widespread violations that would not be cited as such under your proposal
include the following:

• A case in a Texas nursing home, where inspectors cited a widespread violation after finding
that 16 out of 16 sampled residents were improperly physically restrained. Inspectors found
that the facility had not attempted less restrictive alternatives before restraining residents and
had not demonstrated the medical necessity for the restraints. As a result, several of the
sampled residents were “declining in their activities of daily living, i.e. ambulatory abilities,
hygiene, eating, transferring.” Under the proposed CMS policy, this violation would not be
considered widespread because the inspectors had not assessed 75% of the 97 residents in the
facility. (4)

• A case where a facility in Texas was cited for a widespread violation after inspectors found
that the facility “failed to provide incontinent care, oral hygiene, grooming, assistance with
meals, and appropriate positioning for 27 of 49 sampled residents.” Residents were observed
with strong urine and feces odors, dried feces on their pressure sores, urine saturated clothing,
and sores on their buttocks, tailbones, and heels. Under the proposed CMS policy, this
violation would not be considered widespread because the inspectors had not assessed 75%
of the 194 residents in the facility. (5)

• A case where Pennsylvania inspectors cited a nursing home for a widespread violation relating
to physical abuse after interviewing residents, families, and staff, and reviewing the facility’s
records. The inspection report detailed suspicious injuries to six residents, including: a
resident with “large purple bruises over both temples and a bruised upper lip”; a resident with
“six unidentified bruises on the front and back of her body”; a resident with a “bruised and
swollen” knee; and a resident with a “10-inch skin tear of unknown origin to her left
forearm.” The facility’s records also contained letters from residents complaining of
mistreatment and stating that “they felt like prisoners [and] were actually afraid to ask for
anything.” Under the proposed CMS policy, this violation would not be considered
widespread because it is not clear that the inspectors had assessed 75% of the 94 residents
in the facility. (6)

The CMS proposal contradicts the findings of the U.S. General Accounting Office (GAO),
which has concluded that the inspection process needs to be made more stringent, more detailed, and
more consistent. GAO has also recommended that the Department of Health and Human Services
(HHS) impose sanctions more promptly on nursing homes with repeated serious violations and
strengthen federal oversight of the way in which resident complaints are investigated.

Moreover, the CMS proposal will confuse and potentially mislead residents and family
members seeking to learn about nursing homes, particularly those who use the HHS “Nursing Home
Compare” website. The CMS proposal adopts a definition of “widespread” that is at odds with the
common understanding of the word. According to the American Heritage College Dictionary,
“widespread” means “[s]pread or scattered over a considerable extent.” But under the proposal, a
violation that involves two-thirds of residents in a nursing home – or for that matter, 74% of the
residents – is not a “wid espread” harm.

The semantical change you seek brings an Orwellian result. By lumping all violations affecting
between four residents and 74% of residents in the same category, the CMS proposal lessens the
usefulness of these classifications and limits public information about nursing home conditions. Your
change will mean the appearance of widespread violations will reduce appreciably, yet the inexcusable
reality of widespread harm will remain the same.

It is wrong for CMS to adopt a policy making it significantly harder, if not impossible, to
accurately cite the proper scope of these violations and to accurately inform the public about these
serious problems. We urge you to reconsider the proposal to weaken nursing home inspections.

Sincerely,

Henry A. Waxman
Ranking Minority Member
House Committee on Government Reform

Charles E. Grassley
Ranking Minority Member
Senate Finance Committee

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(1) “Bush Swiftly Denounces Nursing Home Plan,” New York Times (Sept. 8, 2001)
(2) Id.
(3) CMS, Draft Changes to the State Operations Manual, 6 (Sept. 21, 2001)
(4) Form 2567 for Nursing Home in Longview, TX (Dec. 16, 1999) (L-level violation).
(5) Form 2567 for Nursing Home in Tyler, TX (Dec. 23, 1999) (L-level violation).
(6) Form 2567 for Nursing Home in Norristown, PA (Nov. 2, 1999) (L-level violation)

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