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Congressional Report Criticizes Monitoring Of Nursing Homes

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MARCH 29, 1999 VOLUME 6, NUMBER 39

There are over 17,000 nursing homes in the United States, housing more than 1.6 million residents. The federal government will contribute $39 billion to the care of those nursing home residents in 1999. Recently, the U.S. Congress’ General Accounting Office (the GAO) was asked by five Democratic members to look into how well governmental monitoring works to ensure quality of care in those nursing homes.

The GAO looked at the database maintained by the Health Care Financing Administration’s (HCFA), the agency in charge of Medicare and Medicaid. The GAO also picked out 74 individual nursing homes in Pennsylvania, Michigan, Texas and California; each had received at least one referral to HCFA for failures in the past, and the GAO wanted to assess how well HCFA’s monitoring and compliance functions were working.

Each year, serious deficiencies in quality of care are reported in more than one-fourth of the nation’s nursing homes. The most frequent violations reported by HCFA include inadequate prevention of pressure sores, failure to prevent accidents and failure to assess residents’ needs and provide appropriate care. Even more alarmingly, 40% of the homes in which such problems were noted at the beginning of the study period still demonstrated similar problems three years later.

Although HCFA has the power to fine or otherwise sanction nursing homes, its practice is to give the nursing home an opportunity to first correct the problems. If a fine is actually levied, HCFA can not collect the fine during an appeal. The GAO described the usual scenario: HCFA notifies a nursing home of failures and threatens to impose a fine, but allows the nursing home to demonstrate that it has corrected its deficiencies. Then, on the next review, HCFA discovers that the nursing home has returned to its previous pattern of failures.

HCFA has a number of options for dealing with nursing homes which fail to meet standards. In addition to ordering a plan of correction, HCFA can fine a nursing home up to $10,000 per day, or can (working with state government) place a state-selected monitor in the nursing home to help ensure that the home complies with standards. At the extreme, HCFA and the state have the power to impose a substitute manager on the nursing home, or to deny Medicare and Medicaid payments for residents in noncompliant nursing homes.

Despite HCFA’s broad authority to force nursing homes to comply with minimum standards, the GAO report found that few sanctions are actually administered. Even when fines are levied, the nursing home can appeal the sanction and avoid payment until the administrative process is completed. The high volume of appeals (coupled with a shortage of hearing officers) has led to a backlog of over 700 cases, some dating back over three years. One single Texas-based nursing home chain, the GAO noted, has appealed 62 of 76 fines levied against its homes, for a total of $4.1 million.

The GAO report recommends that HCFA take several steps to improve its oversight of nursing homes. In addition to speeding up appeals , the GAO suggests that HCFA should terminate non-compliant homes from Medicare and Medicaid, and more closely monitor those homes readmitted to the programs.

A copy of the entire GAO report can be obtained online at http://www.gao.gov/new.items/he99046.pdf, or by contacting the General Accounting Office.

Robert B. Fleming

Attorney

Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman

Attorney

Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson

Attorney

Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

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Matthew M. Mansour

Attorney

Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.