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.

April 3, 2009

Life Services Network of Illinois has recently sent its members this spot of good news:

The Illinois Senate voted 58-0 and the House voted 115-1 on Thursday to approve House Bill 210, an appropriations bill that includes $678 million to significantly reduce the state’s Medicaid backlog.  

Of course, everyone here in Illinois is very excited by this prospect.  One requirement for receiving money from the Federal Stimulus Package (some 2.9B for Medicaid alone) is a pay-down of debts outstanding.  The backlog must be significantly reduced, in actual ledger, by June 1, 2009. 

The bill now goes to the governor for signing.





The Secret of NIMS

March 28, 2009

This past week I attended the Life Services Network annual meeting in Chicago.  Honestly, it was a great conference, and many of the things I learned, whether in the sessions themselves or the hallways, receptions, drinks with colleagues, etc., will likely find there way, in one form or another, into this blog.  One notion that particularly caught my attention was an idea that has apparently been coming down the pike for quite some time, but with the stimulus money, finally might have the chance for real government backing and implementation.  In its simplest terms, state departments of public health are considering including nursing homes in regional emergency response teams, much like hospitals are now. 

What interested me about this development is really two things: 1) I know many of my colleagues, especially those that work in skilled nursing facilities, already work hand in glove with their local emergency management agencies.  So, of course, I was left to wonder what shape this involvement would take.  And 2) the plan to include nursing homes in a fundamental way into the emergency response plans will require training in the government’s emergency response system, the  National Incident Management System or NIMS.

The official handbook to NIMS describes its origin and usefulness in this way (link here): Since the September 11, 2001, attacks on the World Trade Center and the Pentagon, much has been done to improve prevention, preparedness, response, recovery, and mitigation capabilities and coordination processes across the country. A comprehensive national approach to incident management, applicable at all jurisdictional levels and across functional disciplines, would further improve the effectiveness of emergency response providers1 and incident management organizations across a full spectrum of potential incidents and hazard scenarios. Such an approach would also improve coordination and cooperation between public and private entities in a variety of domestic incident management activities.

The actual training in the NIMS system consists of some on-line, work at your own pace training with some short term (one hour) classroom training, and, at higher levels, or for executive management, full day, multi-day training.  Although, NHAs, as a profession, suffer from an ever expanding job description, I think it is a good idea to include nursing homes into the emergency response mix.  The simple fact is that aside from hospitals (and in someways superior to hospitals), nursing homes are the go-to infrastructural asset in the face of a large emergency.  No other type of facility has the concentration of health care technology, personnel and space to serve the public in time of great need.  Therefore, I like the idea that may be coming to a state near you; NHAs trained in the decision making process the government has created, assisting their communities through the careful application of their expansive expertise.

The working life of a nursing home administrator can be a tough one.  There are innumerable tasks that fill up the days (and nights), and one drawback of the job is that we often suffer under a woefully underdeveloped job description.  In an effort to put out today’s fires, we can miss some pretty important pieces of information that come down the pike.  For example, I only recently got around to reading the AAHSA (American Association of Homes and Services for the Aging) report that came out this past summer, “Broken Beyond Repair: Recommendations to Reform the Survey and Certification System.” 

Life Services Network hosts a permanent link to the full report (here).  If you, like me, have been too busy to read it, I recommend giving it a glance as soon as you can.  Especially with the regulatory change winds blowing as hard as they have been in recent months, it is important for on-the-ground LNHAs to understand the issues involved so we can support the advocacy and lobby groups when they make their arguments.

At any rate, the report contains a number (31) of specific recommendations for improving the current certification and survey process (as well as its overall conclusion of OBRA ’87 needs to be completely revisited, and the surv/cert process overhauled).  One in particular has caught my imagination.  It reads as follows:


AAHSA should encourage CMS to revise the Nursing Home Compare Web site so its language is less pejorative and the data it presents is easier to understand and includes a full explanation of survey results. This can be accomplished by giving providers the opportunity to elaborate on the Statement of Deficiencies posted on Nursing Home Compare by adding specific facts related to its cited deficiencies in a standardized format established by CMS.

A major complaint I’ve heard from LNHA colleagues and read in the listserves w/r/t the Five Star Component to Nursing Home Compare is that the website does not offer enough explanation of the results, and that the results do not indicate true quality (i.e. how a resident is actually taken care of – – the compassion factor).  The above recommendation could be an excellent step towards meeting this complaint.

Imagine if you were able to address the deficiency as noted now by a  number of stars in a graph through a short narrative, properly formatted for consistency and ease of use.  I know I would feel better about my facility’s star rating (even though already good) if I could directly address some of the viewer witha  paragraph.  Further, this sort of collaborative back and forth – – adversarial tension between Surveyor and facility – – could result in a dialogue with residents and their family members regarding the appropriateness of the survey results as reported on CMS Nursing Home Compare.  Such a dialogue would help us get to a better regulatory tool (RE: Survey Process), which is the point of OBRA ’87 in the first place.

Indeed, it could go farther than just the facilities having the opportunity to comment on the Survey and Certification results as posted on Nursing Home Compare.  Would it not be empowering to residents and their families if the CMS site allowed them to post their own comments for others to see?  I think it is an idea worth exploring.  If the regulators’ survey results, the facilities’ comments, and the residents and their families’ opinions were collected in the same place, I think the true relative worth and value of a nursing home would out – – rewarding the good and encouraging the bad to improve.  What a lofty, but possible goal.



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.