Letter, if Not Spirit

August 20, 2009

Skilled Nursing Facility administrators often complain the survey process is too focused on the letter of CMS guidelines, and not the spirit of them.  Nurses grouse that good care is evident despite a lack in documentation; “quality of life” is too subjective for so-called “paperwork deficiencies,” and so on.  Earlier this week an appeals court in Chicago turned the same tables onto the Illinois Department of Public Health.

An SNF appealed a Type A, serious type, violation.  The IDPH fine was $10,000.  The successful argument was not based on the merit of the deficiency tagged, but on the timing of the notice.  The Department failed to notify the facility of the Type A violation within 60 days of the end of the annual survey.  (Notice was actually given on the 66th day, though regulation requires it within 60 for violations of that type)

The facility’s lawyer successfully argued that the Department lost jurisdiction to prosecute a violation because the notice fell outside of the window prescribed by Administrative Rule.

This case highlights an important issue within the current regulatory scheme.  1) Such deadlines are essential if facilities are to learn from their mistakes.  That is, prosecution of violations is not merely punitive, but compels facilities to do better next time.  A deadline lets facilities know that, if there are changes to be made, you’ll be told about them in a reasonable time.  This allows regulatory codes like IDPH’s and CMS’s to have what is known as a “channeling function.”  Sure 66 days may be no more unreasonable than 60 in this respect, but for a deadline to have the necessary channeling function effect, it must have a definite cutoff.  2) The regulatory scheme is necessarily (and some would argue counter-productively) adversarial.  It seems like the facility’s lawyer “gamed the system” or “won on a technicality.”  This argument, incidentally, is the same as when facilities claim to have only received a “paperwork deficiency” or have been “caught without documentation.” At the end of the day, an adversary system creates incentive to “beat” the other side, but it also incentivizes winning on the margins.  That is to say it discourages substantive change (which takes more energy and resources than winning on technicalities).

The ideal would be to marry the channeling function of deadlines and the innovation and energy created by the adversarial system while divorcing this kind of small ball, winning on the margins attitude.  That kind of third way is, alas, tremendously difficult to find.  However, I think cases like this one expose the issues that come along with decisions based on the letter, if not the spirit of the Law – – or in this case, Rule.

*Thanks goes to LSN’s Week’s News newsletter for source material.

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.

As was reported by Life Services Network, Governor of Illinois Rod Blagojevich and his Chief of Staff, John Harris were arrested this morning by FBI agents on federal corruption charges alleging that they and others are engaging in ongoing criminal activity; conspiring to obtain personal financial benefits for Blagojevich by leveraging his sole authority  to appoint the United States Senate seat vacated by President Elect Obama; threatening to withhold substantial state assistance to the Tribune Company in connection with the sale of Wrigley Field to induce the firing of Chicago Tribune editorial board members sharply critical of Blagojevich; and to obtain campaign contributions in exchange for official actions both historically and now in a push before a new state ethics law takes effect January 1, 2009.  (See US Attorney’s Press Release and Criminal Complaint).

This is shocking news to everyone who lives and works in Illinois, but it is making LTC Administrators terribly nervous.  Illinois is last among the fifty states in two important Medicaid payer source metrics: 1) amount paid per resident day; and 2) (in)frequency of state payments.  A few days ago, state officials agreed to borrow 1.4 billion dollars and begin paying off the nearly 4 billion in accumulated debts.  (See story here).  One of the chief among these debts, of course, is the State’s Nursing Home Medicaid payments.  

 It is unclear whether and how the arrests of the Governor and his Chief of Staff will affect the loan/payoff plan.  The issue is really a Comptroller’s Office one, but with Medicaid payments over half-a-year behind (and no payment for over a quarter), any shake-up at the upper levels of government has the potential to make things much worse rather than better. 

We will be following this story very closely.

The Illinois Nursing Home Care Act prohibits a long term care facility resident from waiving her right to a jury trial before the commencement of any action.   What this means is LTC residents cannot enter contracts that have a waiver of the right to trial.  If they enter into these types of contracts, the clause waiving the right to trial (and/or jury trial) will be null and void.  

Many LTC facilities seek to arbitrate disputes instead of litigating them.  This protects the facilities from expensive litigation and it protects residents and families because the attendant costs of settling a dispute are much lower.  

The rule (sections 3-606 and 3-607 of the Illinois Nusing Home Care Act) conflicts with this desire to arbitrate becasue arbitration agreements generally ask residents to waiver their right to trial in exchange for the facility paying for and committing to arbitration.  

A recent Illinois 5th Appellate District Case confronts this conflict head-on.  Gott v. SSC Odin Operating Co. involved a wrongful death action brought by the representative of a deceased LTC resident against the owner corporation.  The corporation tried to enforce an arbitration agreement the resident signed on admission.  It argued the Illinois rule is preempted (basically overruled) by a Federal law, the Federal Arbitration Act, which promotes arbitration clauses in service and health care industry contracts.  The court found for the resident’s family, concluding the Federal Arbitration Act did not preempt the generally applicable state contract law and defense.  The Gott family was able to go on with their lawsuit against SSC Odin Operating Co.

The consequences of the Odin decision are not that far-reaching (after the IL Supreme Court refused to review the decision, it only has effect in the IL 5th Appellate District), but they do highlight a ongoing struggle in LTC:  protecting the right to sue vs. reducing the costs of disputes (for both facililities and residents).  

I was honestly surprised at the Odin  decision.  Surprised it came down the way it did (similar cases have found Federal preemption more often than preserving state defenses) and surprised the IL Supreme Court punted rather than review the case to give statewide guidance.     This is a much larger issue than I plan to write in this post, but perhaps a lengthier analysis is in order soon in the future.  Until that time, please see other posts on this issue here and here and at the Wall Street Journal.

For a few years now Life Services Network has conducted a survey of RNs and LPNs trying to gauge the nursing profession’s feelings on authorizing a new class of health care professional to administer medication. (see campaign website here) This category of health care worker, sometimes called medication technician or unlicensed assistive personnel (UAP) would administer medications to nursing home residents during med pass, but would do so under the direct delegation, supervision and control of a nurse. The survey, understandably, reflects deep feelings and division among nurses on this issue. (note: the survey referenced here is focused on nurses working in Illinois nursing homes). Roughly one third of nurses surveyed are in favor of creating and authorizing this new class of worker, but over one half are strongly against it.  There are also interesting breakdowns according to which nurses (master’s prepared, RN or LPN) support such a measure, which appear deeply ambivalent and which strongly oppose med techs, but this post is not the occassion to go into the meaning of these divisions).  

There are many compelling arguments on both sides of this issue: increased med-errors because of undertraining vs. more time for nurses to do ‘nursing work’ if they do not have the grind of med-pass, etc.).  One avenue avenue I have not seen much considered in this debate is the economics of malpractice liability.  Nurses in LTC are, for better or worse, general practitioners.  They are responsible for having master competence in everything from direct patient care to family counseling to documentation.  Generalizing skills increases the risk of error, oversight and gaps in one’s knowledge.  This risk increases the insurance needed to cover for nursing error.  One benefit of medication technicians is that a highly-specialized worker – – one who is expected to master competency in a few, interrelated tasks – – generally shows a decreased risk for error in those tasks.  Decreased risk means lower costs to guard against liability.

Is there room for an insurance argument in the med tech debate?  There should be.  And, I would be interested to see the argument framed in terms of liability economics.

Nursing home administrators face an unexpected ethical (and legal) dilemma when admitting new residents to skilled nursing care. The Nursing Home Care Act undercuts a traditional notion of informed consent in such a way that many residents may be admitted to a nursing home without ever consenting to treatment, or having a meaningful surrogate consent to their treatment. This is clearly an issue of nursing/medical ethics, as well as a font of potential legal liability for providing unauthorized care.

American health care law is predicated on the notion of patient autonomous-direction. Within this notion exist a number of inter-linked rights: the right to self-determination, the right to give consent before treatment, the right to information forming the basis of consent and many others. Curiously, in senior care, as in perhaps no other major area of American health care law, the status of patient autonomous direction, especially with respect to consent before treatment, is less sacrosanct, the exceptions more numerous. This is especially true in the legal quagmire of involuntarily placing adults in nursing homes.

I am most familiar with the Illinois Nursing Home Care Act and it will thus form the background of this discussion, but the Illinois Act is not dissimilar to Nursing Home Care Acts in many other states, at least inasmuch as the acts address the issue of involuntary admission. Clearly involuntary admission of a resident to a nursing home presents moral and ethical issues most families are not experienced in dealing with, not to mention attendant feelings of guilt for the family members and likely betrayal for the patient herself. However, for the health care provider, the nursing home, the struggle is a balance between determining the self-interest rights of the resident and the interests in rendering care.

Admission with Consent/Admission with a Surrogate’s Consent

In Illinois, the default position is that every resident, regardless of diagnosis or infirmity, is presumed to have the capacity to make her/his health care decisions. This includes admission into a nursing home. Providing nursing home care to a person who has capacity to refuse such care, and does refuse it, is paramount to a battery on the patient by the nursing home and would subject the home to potential liability. Determining incapacity is generally a court adjudication, relying in part on advice from a physician, looking at the patient’s ability to make decisions, understand the consequences of one’s own actions and comprehension of one’s diagnosis. If a court determines a person does not possess the capacity to give consent to health care, then a guardian will be appointed to that person to make decisions regarding the person’s health care.

Interestingly, a guardian cannot make the determination to admit her charge into a nursing home unless given express authority by the court to make such a decision. Thus, it is possible (and happens often enough to be noteworthy) where a guardian (usually a family member) who made the decision on behalf of her charge to admit the patient into a hospital must seek specific direction from the issuing court to admit her charge into a nursing home upon discharge from the hospital. Support for this position is fairly widespread and is a outgrowth of the importance of autonomous determination in American health care. In brief: nursing home care is seen as different enough from other provider types, that the type of front-line health care that a guardian usually makes decisions on (administration of prescriptions, whether to have certain hospital-based treatments, etc.), that the decision to admit a patient into a nursing home represents in effect a different, more substantial level of capacity for the court to determine.

Assuming a guardian is granted the authority to admit her charge into a nursing home, this consent will suffice to protect the nursing home from liability, regardless of the manifest wishes of the patient. Yet, the Illinois Act allows for different surrogates other than those specifically appointed by the court to contract with nursing homes for the admission of their charges or wards. A resident may plan for her own incapacity, and avoid the lengthy process of court-ordered and controlled guardianship, by designating a surrogate using a Durable Power of Attorney for Health Care. The Illinois Nursing Home Act creates a statutory form that families can use, although the statutory form has generated many criticisms from commentators because its confusing language may belie the “consent” such forms are supposed to evidence. Such surrogates can consent to nursing home admission so long as the Power of Attorney does not contain language that bars the surrogate making such a decision, either in the presence of manifest intent by the patient/principal, or under any circumstance. Barring this unusual direction in the document itself, a Durable Power of Attorney for Health Care is the most used and safest way residents are involuntarily admitted to nursing homes.

Chipping Away at Informed Consent in the Nursing Home Setting

However, in the absence of a legal surrogate relationship (either a court-directed guardianship or non-exempt Durable Power of Attorney for Health Care), the Illinois Nursing Home Care Act still allows some elements of informed consent to be chipped away. For example, a member of the patient’s family can contract for her admission to a nursing home on the patient’s behalf in the absence of her (the patient’s) positive, manifest consent. This contract is legally binding on the patient/resident so long as she does not object to it once admitted to the nursing home. Thus, a patient can be admitted to a nursing home, a major life change, even when no formal surrogate relationship exists.

The potential harm to patient’s rights caused by the loophole should not be underestimated. Going into a long term care facility represents a major life change for the resident. Generally, they are moving into a new and unknown environment while being taken care of by a physician and nursing staff. Once they are admitted to the nursing home, many residents may be hesitant to voice any objections to their admittance because of cultural imperatives that they do not disagree with medical staff, financial difficulties of living at home and the reluctance to go against the decisions of younger family members who have already arrived at the conclusion that the nursing home is the best place for their continued care.

By requiring only an objection to admission, rather than traditional informed consent, nursing home administrators may be severely impinging on the rights of the residents they serve.

Legal Analysis/Future Action

The legislative history of the Illinois Nursing Home Care Act is disquietingly silent on the issue of creating a statutory distinction between requiring consent for admission and mere objection. Some commentators have described this distinction as being, perhaps, only a scrivner’s error originally, but have harshly criticized the fact that the language creating the distinction has not been changed. They see this as a departure from the foundational premise of patient autonomous-direction.

Whether intentional or not, the artificial distinction serves to create wiggle-room in the informed consent arena that did not previously exist. Given the nature of nursing home care (i.e. a major life-shift for most residents who may be too vulnerable to actually object to admission once they are in the facility), such a distinction creates a potential liability problem for nursing homes and, more importantly, a major ethical concern for providers.

In Illinois this issue has not been addressed by the courts, though there is mounting pressure in the long term care community for some kind of legislative action. The convenience of family members being able to contract with long term care facilities in the absence of express, manifested informed consent by the patient goes against the long tradition of patient autonomous-direction in American health care. Involuntary admission to a nursing home is serious enough that it should be a deliberate decision, a willful cross of the intent of the patient with all of the moral and legal protections and processes that have been created to protect the rights of patients as much as is proper. It should not be a back door policy, a mere absence of objection.