The following is a comment to my post titled: Five Star Rating Techincal Manual: Staffing Domain Accuracy.

I copy it here becuase the author makes a very good point w/r/t where the focus should be for Nursing Home Administrators, and I wouldn’t want it to get lost:

“As a member of the Technical Advisory Panel for the 5-Star system and a co-author of the paper cited in this discussion, I am in a relatively unique position to comment. The author of the posting is correct about the potential effects of errors in reporting staffing.

However, the study showed that for-profit homes tend to over-report, and it was for-profit homes that fared the worst in the 5-Star system. So, it seems that the effects of over-reporting may not be as dire as suggested.

In addition, I would suggest that instead of trying to cast doubt on the 5-Star system, which we all admit is not perfect, the industry should push for a new reporting system for staffing. That is what NCCNHR is doing. Join them. After all, the staff data are self-reported by homes. If your fellow administrators are “cheating you,” then I suggest that you advocate a reporting system that doesn’t allow them to do that.”

To Dr. Phillips I say, yes, you are absolutely right to point out that the energy should not be soley on casting doubt on the Five-Star system, but instead should be focused on the constructive work of fixing the public rating system as a whole.  The Five Star data just makes more accessible the already flawed Nursing Home Compare data.  Therefore, it is important to focus the anger we feel at being “cheated” by an innacurate  system into 1) convincing the public and legislators that this is a poor tool for researching nursing homes and 2) helping to devise a new system.  We must be careful of doom and gloom predictions and overactions like calling the Five-Star system a “travesty of justice,” as Larry Minnix, president and CEO of the American Association of Homes and Services for the Aging said to members of Dec. 18th.

On a personal note, though, I still find my blood pressure rises when I think about how the quality of care I know my home provides is not as well reflected as I think it should be in its Five-Star rating.  Maybe the advice from older DONs than Directors of Nursing is appropriate here: (in Latin) “pace. pace. pace (peace. peace. peace.)”.  Let’s take a breath and work the problem instead of rail at it.

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Illinois Attorney General Lisa Madigan and the Office of Management and Budget re-worked language in a loan plan worth $1.4 billion so the State can pay some of its lat Medicaid payments and other obligations.  The Attorney General was concerned about language in the loan plan which asked her office to certify the forthcoming loan was free of civil and criminal liabilities.  Clearly, with the ongoing investigation of Illinois Governor Rod Blagojevich and his chief of staff John Harris,  AG Madigan was unable to make such an assertion.  However, once the liability requirement was modified, the loan went through rather quickly.  The Governor’s office issued a press release last Thursday indicating that the state should receive the funds from the short-term borrowing before the start of the New Year.  Under that scenario Medicaid payments to providers should be occurring in January.  

The amount of these payments is still undetermined, but lobbyists in the affiliate Life Services Network indicate it could be anywhere between one and three months arrears.

Like many of you, I have been pouring over the CMS Nursing Home Compare Five Star Ratings today.  The results have been . . . unexpected.  I operate a facility in Illinois, a state somewhat notorious in the Long Term Care industry, and when I looked at the ratings of facilities in my geographic region, I was truly surprised.  The variance is what got me.  Homes I know are pleasant, and seem to be well-run, scored much worse than those with bad reputations.  Many had perfect marks in the Quality Measures domain, but only one star in the Health Inspections domain.    

To try to get a handle on this new metric, I have also been pouring over the Technical Manual for the Five Star Rating System.  Entitled, “Design for Nursing Home Compare Five-Star Quality Rating System: Technical User’s Guide”, the 23 page report does  a fair to good job of laying out hte technical details of how the different domain scores are calculated.  My objection to this manual is that it does not give a very good rationale for why the score algorithms were selected over others.  I found myself wondering, ‘how did the Techincal Expert Panel (TEP) decide to score a domain this way instead of another.’  There are vague justifications: “distribution is based on CMS experience and input from the Project’s TEP” (page 5), but no real explanation or rationale.  

This Technical Manual may be (somewhat) easy to use then, but difficult to critique.  However, I would like to discuss one issue that bothered me.  First, I found it difficult to locate the study cited to on page five, “The Relationship Between Nurse Staffing Levels and the Quality of Nursing Home Care.”  (executive summary located here).  But, in the process of searching for this 2001 CMS staffing survey and study, I discovered the following, interesting article, first published in the scholarly journal, The Gerontologist: “Comparing Staffing Levels in the Online Survey Certification and Reporting (OSCAR) System With the Medicaid Cost Report Data: Are Differences Systematic?,” Bita A. Kash, PhD, Catherine Hawed, PhD, and Charles D. Phillips, PhD.  (abstract located here).  This article discusses some interesting results from a study of the OSCAR system.

The Techincal Manual cites the Online Survey Certification and Reporting (OSCAR) System as the source data for the staffing measures/Staffing Domain.  This is the same data used now for Nursing Home Compare, although the staffing data was not compressed into a quintile metric before the Five-Star Rating.  The OSCAR database includes essentially every piece of information a surveyor gathers during certification/licensure surveys and complaint surveys.  However, information on nursing home operational characteristics (like staffing ratios and Case-mix) are reported by the nursing homes themselves.  Inspectors review the information, but the data are not formally audited to ensure accuracy.  The study Kash, Hawes and Phillips study cited above arrives at a critical result to this operation.  The study sought to assess the validity of the OSCAR staffing data by comparing them to staffing measures from audited Medicaid Cost Reports.  The results of this study were that “[A]verage staffing levels were higher in the OSCAR than in the Medicaid Cost Report data.”  Meaning that “[C]ertain types of facilities consistently over-report staffing levels.”  This 2007 study went on to say that the implications of these findings are that “reporting errors will affect the validity of consumer information systems, regulatory activities, and health services research.”  

In other words, OSCAR data is inaccurate in reporting staffing levels and some facilities will have a lower staff-to-patient ratio than the data reflects.

What does this mean with respect to the Five-Star System?  Because the staffing ratios/RUG-III modifiers are relatively scored (i.e. a score based on how your facility matches up to other facilities in the same category), if a facility is over-reporting its staff ratios (as the above study suggests OSCAR does), then every facilities score in the Staffing Domain will be inaccurate.  If your facility happens to have a lower-ratio and higher complexity modifier than one of the innaccurate reporting facilities, your relative position will be even lower than it otherwise would have been if all facilities staffing ratios were accurately reported.  

The Staffing Domain can skew the entire star system.

Of course, it would be wrong to discard CMS’s new system based on the strength of one adverse study, but Administrators and academics need to give the whole Five-Star System a hard look.  The Staffing Domain is an important indicator of quality of care.  It should be in any comparison metric, provided the data source is accurate.  There have been a lot of criticisms leveled at the Five-Star System, but drilling down into the technical manual, I think, can provides the most salient.  

I encourage everyone reading this to do just that.  Keep this conversation going.

It turns out the main stream media has somehow received the Five Star data ahead of many nursing homes. The listserves are abuzz with Administrators complaining of having to talk to newspapers, televisions stations and the like about their five-star rating, without actually knowing the rating themselves.

Furthermore, there seems to be a lot of grumbling about the accuracy and precision of the Five Star Ratings. The five step “How the Ratings are Calculated” guide CMS sent to MDS mailboxes is pretty basic. In case you haven’t seen it, here it is:

How the Ratings are Calculated:

A nursing home’s Overall Quality rating on Nursing Home Compare (www.medicare.gov) is based on its ratings for Health Inspections, Quality Measures (QMs), and Staffing. Ratings for each domain and the overall rating range from 1 star to 5 stars, with more stars indicating higher quality. Based on these three ratings, the overall 5-star rating is assigned in 5 steps:

Step 1: Start with the Health Inspection Rating.

Step 2: Add one star if the Staffing rating is 4 or 5 stars and also greater than the Health Inspection rating. Subtract one star if the Staffing rating is 1 star. The rating cannot go above 5 stars or lower than 1 star.

Step 3: Add one star if the Quality Measure rating is 5 stars; subtract one star if the Quality Measure rating is 1 star. The rating cannot go above 5 stars or lower than 1 star.

Step 4: If the Health Inspection rating is 1 star, then the Overall Quality rating cannot be upgraded by more than one star based on the Staffing and Quality Measure ratings.

Step 5: If a nursing home is a Special Focus Facility that has not graduated, the maximum Overall Quality rating is 3 stars.

Nursing Home Compare provides a five-star rating for each of the following three components:

1) Health Inspection ratings:

• Ratings are calculated from points that are assigned to the results of nursing home surveys over the past three years, as well as complaint surveys from the past three years and survey revisits. More recent surveys are weighted more heavily.

• Points are assigned based on the number, scope and severity of a nursing home’s health deficiencies. If multiple revisits are required to ensure that major deficiencies are corrected, additional points are added to the health inspection score.

• Lower health inspection scores result in a better 5-Star rating on Nursing Home Compare.

• Nursing homes are ranked within their state based on their score, and the number of stars is based on where the nursing home falls within the state ranking.

• The top 10% of facilities get 5 stars, the bottom 20% get 1 star, and the middle 70% of nursing homes receive 2, 3 or 4 stars, with equal proportions (23.33%) in each category.

• Health Inspection ratings are re-calculated every month to account for new survey results entering into the system.

2) Quality Measure ratings:

• Ratings are calculated from a nursing home’s performance on 10 Quality Measures (QMs), which are a subset of those reported on Nursing Home Compare.

• The QMs include 7 long-stay (chronic care) QMs and 3 short-stay (post-acute care) QMs.

Long-Stay QMs Short-Stay QMs

• ADL Decline

• Mobility Decline

• Catheter

• High-Risk Pressure Ulcers • Physical Restraints

• Urinary Tract Infections

• Moderate to Severe Pain • Pressure Ulcers

• Moderate to Severe Pain

• Pressure Ulcers

• Ratings are calculated using the three most recent quarters of data.

• ADL Decline and Mobility Decline contribute more heavily (each weighted at 1.667 times) than the other QMs.

• A nursing home’s performance on the ADL Decline and Mobility Decline QMs is ranked against all other nursing homes in the state.

• A nursing home’s performance on the other 8 measures is ranked against all other nursing homes in the nation.

• Points are assigned for each QM based on what quintile the facility falls in comparison to other nursing homes. Points for each QM are added together for a total point score.

• Based on this total score, the top 10% of facilities nationwide get 5 stars, the bottom 20% get 1 star, and the middle 70% of nursing homes receive 2, 3 or 4 stars, with an equal proportion (23.33%) in each category.

3) Staffing ratings:

• Ratings are calculated from two measures: RN hours per resident day and total staffing hours (RN, LPN, nurse aide) per resident day. These two measures contribute equally to the Staffing Rating.

• Staffing measures are derived from OSCAR data that is then case mix adjusted based on the facility’s distribution of MDS assessments by RUG-III group, based on the number of RN, LPN, and nurse aide minutes associated with each RUG-III group

• Other staff, such as clerical, administrative, and housekeeping staff, are not included in the calculation of the Staffing ratings.

• For each staffing measure, a 5-Star rating is assigned based on where the facility ranks compared to the adjusted staffing hours for all freestanding facilities AND where the facility ranks compared to optimal staffing levels identified in the 2001 CMS Staffing Study.

• To earn 5 stars on the Staffing rating, the nursing home must meet or exceed the CMS staffing study thresholds for both RN and total nursing hours per resident day.

• The Nursing Home Compare website will include a “drill down” that shows the nursing home’s rating for RN Staffing.

The RN Staffing Rating for Nursing Home Name is .

Ratings are provided only for nursing homes that have had at least two standard health inspection surveys. Nursing homes that have not yet had two standard health inspection surveys are listed as ‘too new to rate,’ and no rating information is provided for the nursing home If the rating indicates ‘data not available’ then the data needed to rate the nursing home were not available.

If Your Rating Isn’t What You Think it Should Be

If your nursing home’s rating seems to be markedly different from your expectation, it may be that a recent survey has not yet been entered into the database. It may also arise from a dispute resolution or appeal decision that has not yet entered into the database. You can check the health inspection detail on Nursing Home Compare for more information about the particular deficiencies that entered into the calculation.

If your quality measure rating states “data not available,”, it means that there were too few eligible residents for us to calculate a reliable quality measure. If your staffing score says “data not available,” it means that the number of hours of staffing were found to be a value that were so extremely high or low that they were not plausible. In this case, please check with your state survey agency to confirm the staffing values you reported.

A technical manual containing additional information can be found on the CMS website (http://www.cms.hhs.gov/CertificationandComplianc/).

 

If you have questions, please contact the 5-Star Helpline at 1-800-839-9290.

To make matters worse, as of this writing, the technical manual has not yet been published on CMS’ website (the link above). So, some Administrators are getting some pretty bad news, with no technical context in which to frame it.

Whether the Five Star Nursing Home Compare site will be a highly used tool by the public remains to be seen, but the five star system needs to accurately reflect the quality of care if it is to be a usable metric.  My fear (and I’m sure I’m not alone in this) is that the Five Star system will make a confusing, relatively difficult to use, flawed data set (the Nursing Home Compare website) less difficult to use, but still just as flawed.  I know my own facility’s overall star rating was less than I anticipated.  I intend to pour over the technical manual, looking for a way to match the Nursing Home Compare Five Star Rating with the quality of care I know my staff provides every day.

*Update: the technical manual is now online.  I’ve made the link above live.

The number of lawsuits against nursing homes is rising.  Many of these suits begin with either a sentinel, ‘never-event’ (e.g. dehydration, fecal impaction, etc.) or the emergence or worsening of a late stage pressure ulcer.  In fact, trial lawyers are especially keen to bring negligence and malpractice actions over pressure ulcers because recent nursing literature has encouraged the use of wound photos to track the progression/regression of pressure ulcers as a part of the clinical record.  Not incidentally, these photos are impactful and in many cases disturbing to judges and juries alike.

Let me be very clear.  Emerging pressure ulcers can be a sign of negligent care.  A nursing home should strive to never have an emerging pressure sore, and should work to heal the ones on patients at admission.  This being said, pressure ulcers do happen.  There are compelling arguments for tracking these wounds with photographic evidence, although these photos may make a legal defense more difficult.

Given the recent surge in lawsuits over pressure ulcers, then, I think a discussion on evidence law may be instructive for finding strategies to balance good nursing practice in taking care of these wounds and establishing aggressive practices for legal defense.

Initial Understanding

The rules of evidence dictate those facts which are admissible in open court and those which a jury will never hear.  Evidentiary law is procedural – – it is lawyers’ law; it is the rules by which the game is played.  As such, you can imagine, it is one of the most parsed, argued over and complicated areas of the law. 

In order for the court to allow facts to be heard in open court (admitted as evidence), they must be relevant, material and competent.  Relevance is whether the evidence makes a claim more or less probable.  Material is whether the evidence is offered to help prove a fact at issue.  Competence is the reliability of the evidence to prove what it aims to.  For example, in a lawsuit involving a resident with a pressure ulcer, a photo of a wound is relevant if it shows the wound of the resident suing, not a wound like or similar to the resident’s wound.  It is material if it shows the wound that caused the suit, not, for example, a previously healed wound acquired before nursing home admission.  It is competent if the photo illustrates what it claims to (i.e. it is clear what is depicted in the photo or it has not been Photoshopped).  The materiality, relevance and competency of evidence can be shown with something inherent to the evidence (something like labels on wound pictures) or by testimony of a witness with knowledge of the fact being depicted (example: the risk manager nurse who has the duty of keeping wound care photos).

Introducing Photos and Expert Witnesses

There are many specific and particular rules controlling the introduction of photos (especially specialty subject photos that are medical/clinical) into evidence, however.  The first and most important of these is called the Best Evidence rule.  Best Evidence is actually an ancient legal concept dating to the Ecclesiastical Courts of the Middle Ages, but remains extremely important today.  Essentially, the demand is that if a document (or photo) is introduced into evidence to prove a fact (negligent care, say) it must be the original or, if a copy, you must have a good reason for not presenting the original.  So, a wound photo, assuming it is developed into hard copy, should be the original print to be admissible. 

This rule also dictates how photos taken on a digital camera, and stored electronically, can be admitted, albeit in an oblique manner.  Since the law seeks originals in order to minimize the risk of misunderstanding caused by imperfect copies, a party seeking to admit a digital picture must be able to demonstrate the photo-file is the original one from the camera – – undoctored.  Obviously, this is difficult to do, and may require testimony from someone familiar with the taking and storing of your facility’s digital photos. 

The second related rule is that all real and demonstrative evidence (would photos will fit into either of these two categories) must be attested to with knowledge of the evidence.  This can be anyone who knows where the evidence comes from and how it was produced.  In the case of pressure ulcer photos, the court will also require an expert witness to describe to the jury what the photos are depicting, and what the depiction indicates (e.g. what stage pressure ulcer, how does one get to that stage, what are nursing practices to avoid this type of pressure ulcer, this particular resident’s circumstance which lead to this pressure ulcer etc.).  With this type of testimony accompanying very expressive photos, it becomes obvious why wound photos are so important in these types of cases.

Admission into Evidence: A Facility’s Steps to Protect Itself

It is fairly clear that wound photos are going to be admissible into evidence in a lawsuit alleging negligent care by a nursing home leading to a pressure ulcer.  So, what can facilities do to prepare for such suits?  The obvious answer is to prevent pressure ulcers from emerging and carefully documenting those that are present on admission.  From a legal standpoint the kneejerk answer (and one which many corporate counsel advocate) is to abandon the practice of taking wound photos, and rely instead on the written clinical record, but there are numerous nursing practice drawbacks to this approach.  So, assuming a facility is going to take and keep wound photos for the clinical record, the best defense for any potential suit is to control the wound photos as much as is practicable. 

Facilities should establish procedures whereby wound photos are as accurate is feasible and as precise as they can be.  What this means is that every wound photo should be taken is similar lighting conditions, from the same distance (from camera to wound) with the same camera settings.  Additionally, the photos should include some scaling metric (a ruler) and an indication of directionality.  Many facilities I know of place a five centimeter L-ruler under the wound and easily removable orange sticker in the direction of the head.  Steps like these make certain the wound does not appear worse than it really is (e.g. if there were no scale and the lighting was poor, a wound may appear more infected, larger and deeper than in reality).  Also, facilities should ensure their risk managers or wound care nurses take adequate documentation on all wounds, and be prepared to explain what is depicted in photos.  Last, make certain to take the appropriate number of photos so the progression/regression of a wound can be shown.  Set a schedule for taking these photos – – same time each and every day, for example.

Conclusion

Ultimately, the law of evidence presents an occasion for lawyers to wrangle – – apply their skills and win the suit on procedural issues.  But, despite the complexities of this area of the law, a general understanding can help Administrators prepare for a day that, hopefully, will never come; the day the care a facility provides is put into question.

A Washington state court decided yesterday that a 91 year-old man with dementia and demonstrated delusions was competent to stand trial for second-degree murder.  The accused, Joe Conway, allegedly shot and killed a staff member at the nursing home where he lived when the victim brought food into Mr. Conway’s room.  After a two-day evidentiary trial, the court found Mr. Conway competent, and put his case on the criminal docket.  

As awful and shocking as this news sounds, it is really not all that surprising given the tortured logic the “insanity defense” has gone through in the last forty years of Supreme Court jurisprudence.  All crimes, in order to be crimes, require an action and a mindset.  If one commits the prohibited action (taking a the purse off a woman on the street) with the prohibited state of mind (with knowledge that it is not one’s own and to deprive the rightful owner enjoyment of the purse) then a crime has be committed.  If one commits the action (snatches the purse) without the mindset (but mistakenly believes it was one’s own to start with) no crime has been committed.  This the foundation of the insanity defense.  Essentially, it says that a person is incapable of forming the prohibited mindset, thus their actions are not criminal.  

Sounds simple, and if Mr. Conway has a dementia diagnosis, it would seem impossible for him to form the requisit intent for second-degree murder.  However, intent can only ever be inferred, and the several states and the Supreme Court have devised many different tests for inferring such intent: 1) the M’Naghten test: the defense will hold if at the time of the misconduct, the defendant (accused) lacked the ability to know the wrongfulness of his actions or understand the nature and quality of his actions (i.e. “does not know right from wrong”); 2) the Irresistible Impulse test: the defense will hold if the defendant was unable to control his actions or conform his conduct to the law (i.e. lacked self control and free will; suffered an impulse he could not resist); 3) the Durham test: the defense will hold if the defendant’s conduct was a product of mental illness (i.e. but for the mental illness, the defendant would not have done the act); 4) the Model Penal Code test: the defense only holds if the defendant lacked the substantial capacity to appreciate the criminality of his conduct, or conform his conduct to the requirements of the law (i.e. a combination of the M’Naghten and Irresistible Impulse tests).  Different states use different tests, but as is fairly clear even on first reading, there is a lot of wiggle room in the language of all of the tests. 

So, how does a 91 year-old dementia patient not fail these tests and be found competent?  Unfortunately, the theoretical underpinning for the defense does not really support the court’s finding.  But the tests likely do.  If Mr. Conway had in his mind to kill a person, even if he was delusional as to who the person was or why he was killing him, then, all things being equal, the M’Naghten would not save him.  Dementia standing alone would likely not hold the defense under any of the other three.  Dementia, generally, does not create an impulse to kill, nor is it a mental illness which channels someone towards murder.  I suspect, though, the Supreme Court will revisist these tests in the next few years – – and it will probably be a case like Mr. Conway’s that presents the issue.  Age related dementia is unique enough from other mental illnesses that the Court may carve out some special consideration in the “insanity defense.”  With the next crest of seniors reaching old-old age, the issues may come to a head fairly soon.

*On a totally unrelated note, the insanity defense was first suggested in Anglo-American legal theory by Lord Chief Justice Tindal of the Court of Common Pleas – – this guy was an absolute genius, though he is best known for acting as Queen Caroline’s defense attorney (successful) in her adultery suit.  His wikipedia entry can be found here.

Centers for Medicare/Medicaid Services reached out to nursing home administrators today in an attempt to quiet anxieties over next week’s roll out of the new Five Star Rating on CMS’ Nursing Home Compare website.  CMS Regional offices set up teleconferences with LTC affiliates, so member nursing homes could hear directly from CMS staff how the roll out was going to work and what last-minute changes were being made.  The key facts that made me take notice were:

1) State license and complaint surveys are going to be weighted so the five-star comparison is intra, not inter-state.

2) The Staffing tab data will be weighted across with RUG scores before being tabulated into the five-star algorithm

3) Nursing Home Compare will be kept up to date (within a quarter) and the Five Star will be updated monthly.  

I will be interested to see how this plays out next week when the Five Star rating is debuted.  As I said in my earlier post, though, I remain positive on the Five Star rating, though, it should be mentioned, this objective metric will never be able to capture the full scope of care being provided.