Statement of American Association of Homes and Services For the Aging

The American Association of Homes and Services for the Aging appreciates the opportunity to submit this statement for the record of the Subcommittee's hearing on March 15, 2001 on essential regulatory relief for health care providers who participate in the Medicare program.

AAHSA is a national organization whose more than 5,600 not-for-profit providers serve over 1,000,000 individuals on a daily basis. Approximately seventy-five percent of AAHSA members are affiliated with religious organizations; the other are sponsored by private foundations, fraternal organizations, government agencies, and community groups. Our members include not only nursing facilities, but also independent senior housing, assisted living, continuing care retirement communities, and providers of home health care, adult day care, respite care, meals on wheels, and other services. AAHSA members are characterized by long-standing ties to their communities and a firm commitment to quality.

Although AAHSA's membership spans the continuum of long term care, the majority of our members continue to provide nursing care to residents, either alone or in combination with other services. We actively participated in the development of federal quality standards for nursing home care under the Omnibus Budget Reconciliation Act of 1987 (OBRA), and we continue to support these standards. We were one of the initial members of the Campaign for Quality Care, the coalition of organizations coordinated by the National Citizens' Coalition for Nursing Home Reform (NCCNHR), that worked to reach consensus on twelve key areas of nursing home reform. AAHSA has continued to serve on various committees and workgroups convened by the Health Care Financing Administration to work toward a reasonable and equitable implementation of the regulations and interpretive guidance resulting from the OBRA requirements.

AAHSA has several concerns, however, about the ways in which these standards have been implemented under regulations promulgated by the Health Care Financing Administration (HCFA) and have been enforced under the joint state and federal survey and certification system.

Assessments for purposes of Medicare reimbursement

OBRA '87 requires a full assessment of a resident's condition upon entry and at specific intervals thereafter, recorded on the minimum data set (MDS). The prospective payment system instituted under the Balanced Budget Act requires additional assessments for Medicare payment purposes.

HCFA has determined that these additional assessments must be done according to the full MDS, rather than just according to the specific treatments for which reimbursement is claimed. HCFA developed a short form of the MDS specifically for the RUG-III prospective payment system. It is a subset of the full MDS, and it has every item needed to calculate the appropriate RUG class under the Medicare regulations. HCFA should permit facilities to use this shorter MDS, instead of completing the entire MDS, which means filling out items that are not needed for reimbursement and are not collected for reasons of quality assurance.

The full MDS is a detailed and time-consuming process, as it should be, and requiring the full MDS for Medicare payment purposes when it is not required or needed for care planning is an excessive paperwork burden that does not contribute in any way to quality of care. The current requirements are such that facilities with average Medicare volume are forced, as a practical matter, to dedicate the equivalent of a full-time RN to completing assessments rather than providing care if the facilities are to get all of the paperwork completed and submitted on the time schedule required.

Solution: Allow nursing homes to file the short-form MDS for reimbursement purposes under the prospective payment system, while continuing to complete the full MDS for care planning and quality assurance purposes.

Posting of staffing levels

The recent requirement in Section 941 of the Benefits Improvement and Protection Act, that nursing facilities post numbers of nursing staff for each shift, is potentially misleading and administratively burdensome. The new law requires nursing homes to post daily for each shift the current number of licensed and unlicensed nursing staff, in a uniform manner to be designated by HCFA and in a clearly visible place.

AAHSA members are acutely aware of consumers' need for information on indicators of quality care; however, the posting requirement provides information that is of minimal to no actual value to the consumer. Without any reference to the acuity of the residents being served, or an established criterion for appropriate staffing levels based on resident acuity, simple staff numbers are meaningless. The assumption that quality can be determined by numbers of nursing staff rather than by the efficient use of nursing staff and resident outcomes is both simplistic and potentially deceptive. Such a policy runs completely counter to the philosophy of outcome-based measurement of the quality of care.

Solution: AAHSA strongly urges the repeal of the staff posting requirements under BIPA.

Other regulatory agency requirements

In addition to regulations promulgated by OBRA, nursing facilities must comply with worker protection regulations issued by the Occupational Safety and Health Administration, wage and hour laws enforced by the Department of Labor, environmental requirements promulgated by the Environmental Protection Agency, and with regulations imposed by a variety of state agencies. All of these regulations do not necessarily coordinate with one another, and there may even be conflicts among them.

As an example, OBRA restricts the use of physical or chemical restraints on nursing home residents. The Food and Drug Administration defines a restraint as something that is attached to the body, while HCFA defines a restraint as something attached to or adjacent to the body. These differing definitions have created an issue with respect to bed siderails. HCFA views siderails as a restraint, while manufacturers see no need to label siderails as restraints or provide instructions or warnings about their use, since siderails do not fit the FDA's definition of a restraint.

Solution: AAHSA is working with the Medicare Payment Advisory Commission (MEDPAC), which is studying the combined impact of federal regulations on health care providers, including nursing facilities.

Survey and enforcement

Besides paperwork reduction, nursing facilities need a more balanced and thoughtful system for recognizing and encouraging excellence. The current survey system that has developed under OBRA forces oversight authorities to expend the same amount of time and resources on facilities with exemplary records as they do on those demonstrating chronic or serious quality of care problems. Given the limitations on resources available for enforcement, the mandate that all nursing homes receive surveys of equal frequency and intensity effectively means that facilities that consistently fail to provide quality care do not receive the attention they need from state and federal regulators.

In addition, the system is plagued with inconsistencies in survey results and the imposition of remedies, which nursing facilities have only a limited right to appeal. Determinations of the severity and scope of an OBRA violation are subjective and vary from state to state and from region to region. Nursing homes in one area of the country may be severely penalized for infractions that bring far lighter remedies in other regions. This subjectivity and inconsistency prevent the survey process from serving as an accurate measurement of the quality of nursing home care.

Furthermore, the present regulatory system has developed into an adversarial process that pits surveyors against nursing homes, rather than allowing them to work together to improve quality. HCFA and state survey agencies actively discourage surveyors from discussing their findings with nursing facilities or advising facilities how care might be improved. Even a deficiency-free survey is no longer necessarily accepted as a sign that a nursing home is providing good care. Instead, the assumption often is made that the surveyor simply didn't try hard enough to find out what the facility was doing wrong. In the current environment, it has become almost impossible for a good surveyor and a good facility to coexist.

This negative environment damages employee morale and makes it all the harder for nursing facilities to recruit and retain qualified staff at every level. As will be discussed below, nursing facilities in all areas of the country face a crisis in attracting sufficient numbers of certified nursing assistants, who provide the bulk of hands-on care to nursing home residents. Moreover, nursing homes are losing substantial numbers of directors of nursing, and the decline in new administrators is equally alarming. In the last two years the numbers of candidates sitting for the nursing home licensure examination in many states have dropped by as much as 25%. If nursing homes are unable to recruit and keep dedicated professional staff, the quality of care for residents is bound to suffer.

Our present regulatory system recognizes only adequate levels of care, not excellence. A perfect inspection simply means that no mistakes or violations of the law were observed. It says nothing about whatever positive actions the facility is taking for its residents or any innovative programs it may have put in place for residents or staff. Our current inspection and enforcement system for nursing homes cannot give consumers the information they want and need on which are the best facilities, and there is no consideration being given to developing better measures. To the contrary, the answer to every question about quality in nursing homes now is more regulation and greater penalties.

In the short term, a more collaborative approach to surveys needs to be developed, one that allows surveyors and caregiving staff to work not only on promoting and achieving sustained compliance, but on meeting individual care needs and expectations to improve care. In the long term, we must create a new system; one focused on outcomes and continuous quality improvement, rather than process. The focus of the survey and enforcement process should be on fixing problems and offering expert guidance rather than on punishment.

Solutions: AAHSA recommends the following changes in the nursing home survey and certification process:

• Less frequent or less intense surveys for good-performing facilities: Flexibility is needed to allow facilities with good records to be surveyed at intervals beyond the current fifteen-month statutory limit. States should also be given the option of doing shorter , less intense surveys of facilities that have demonstrated good quality care on previous surveys. This would allow over-sight authorities to better target their resources on facilities with chronic or serious quality of care problems.

• Alternative approaches to enforcement of nursing home quality standards: States should be given greater flexibility to develop and explore innovative approaches to measuring quality of care through state waivers for demonstration projects. These efforts should be directed toward increased use of outcome measures, greater incorporation of quality of life, and improving consistency in deficiency determinations and survey results.

• Informal dispute resolution process: Since severity and scope determinations ultimately lead to the imposition of remedies, the inability to challenge these determinations under the informal dispute resolution process unfairly limits a nursing facility's ability to obtain redress for inappropriate penalties. This process must be open to consideration of severity and scope for any deficiency as well as to the existence of a deficiency. Facilities should also have the right to review before an independent, impartial decision-maker and the opportunity to request a face-to-face review for those deficiencies that cannot be adequately addressed by telephone or in writing.

• Civil Monetary Penalties should be used to enhance quality care: States are required to use funds to improve resident care, yet many states have not adopted programs to use the funds. In addition, HCFA maintains that states cannot use CMPs to provide technical assistance or consultation. Funds should be allowed for surveyor training, consultation and technical assistance to facilities in developing and implementing quality improvement or resident care protocols.

Nursing assistant training lockout

Medicare and Medicaid prohibit nurse aide training by or in a nursing facility if the facility within the last two years has: (1) operated under a (staffing) waiver; (2) has been subject to an extended or partial extended survey; (3) has been assessed a civil money penalty of $5000 or more; or (4) has been subject to certain remedies (i.e., denial of payment for new admissions, or temporary management, termination of provider agreement due to a finding of immediate jeopardy, and/or closure of a facility, transfer of residents, or both). These provisions are severely restricting the ability of nursing facilities to train nurse aides and have proved counterproductive to improving quality of care.

There is little argument for approval of a nurse aide training program by a facility that is providing substandard quality of care. However, the prohibition on training once compliance has been achieved and demonstrated is problematic for providers and residents alike. The two-year duration of the nurse aide training "lock-out" severely impedes the facility's ability to recruit and retain adequate and qualified staff, and to assure provision of quality care.

Opportunities to access alternative training programs are frequently limited and many facilities, even after achieving and demonstrating compliance, find it difficult, if not impossible, to secure training for their aides. The end result can be either new compromises to quality of care or a recurrence of the problems that initiated the disqualification from training. The effect of this particular sanction is counterproductive to the improvement of quality, and to the intent of the law that facilities achieve and maintain sustained compliance.

Facilities that correct their deficiencies and demonstrate compliance should be permitted to resume their nurse aide training programs. Elimination of the 2-year prohibition on providing nurse aide training will preserve the ability of the facility to assure the ongoing provision of required training and competency evaluation of its nurse aides.

Solution: AAHSA urges the elimination of the present two-year prohibition on nurse aide training by or in nursing facilities that are found to be out of compliance with certain federal long term care requirements [Section(s) 1819 and 1919(f)(2)(B)(iii)(I)(b) of the Act]. Once facilities have corrected their deficiencies and demonstrated compliance, they should be permitted to resume their nurse-aide training programs.

Single task workers

Nursing facilities across the country are experiencing a staffing crisis. Insufficient numbers of staff -- licensed vocational nurses (LVNs), licensed practical nurses (LPNs) and registered nurses (RNs) -- can endanger quality care for residents. However, one of the greatest challenges currently faced by nursing facilities in assuring quality of life and care outcomes to residents is the ongoing shortage of nursing assistants (CNAs). Higher acuity levels among nursing facility residents as well as projected aging demographics point to a demand for paraprofessional staff in nursing facilities that will continue to escalate. Cornell University's Applied Gerontology Research reports that some 600,000 new nursing assistants will be needed within the next 10 years.

Current law defines a nursing assistant as "any individual providing nursing or nursing-related services to residents in a skilled nursing facility or a nursing facility." The statute requires that nurse aides successfully complete a training and competency evaluation program. The law does not define which specific tasks are considered to be "nursing or nursing-related"; HCFA has determined , under its State Operations Manual, which tasks should be so designated. According to the State Operations Manual, assisting residents with eating or drinking is considered to be a nursing-related task.

In the nursing home environment, many employees who are neither nurse aides nor licensed health professionals also have frequent and regular contact with residents. Permitting these individuals to be trained to perform certain tasks determined to present little or no risk to the resident can offer partial relief to the nurse aide shortage and provide more individual attention to residents.

The area where trained non-nursing assistance is most needed is assistance with eating. In addition to providing assistance at regular mealtimes, examples include a dietary aide who might be permitted to help residents eat birthday cake at a party, or office personnel and activity assistants who might assist with eating during a special event or outing. The ability to provide assistance would be based on a comprehensive assessment of the needs and potential risks to the resident. The personnel performing these tasks could be required to complete in-service training in dining skills and assistance with eating, and demonstrate competence in the duties assigned.

Solution: AAHSA supports legislation to permit nursing facilities to provide specialized or "single-task" training to personnel other than certified nursing assistants. These employees should augment, but not replace existing staff and be allowed to perform certain specific resident-centered tasks without having to complete the full nurse aide training and competency evaluation program. The interdisciplinary team responsible for the care of the resident should determine resident appropriateness and employee competence and ability to perform these tasks. The training programs should be reviewed and approved by the state regulatory authority.

Conclusion

AAHSA appreciates the Subcommittee's willingness to explore regulatory relief that would continue to ensure high quality care while allowing nursing homes to maximize the financial and human resources devoted to caring for their residents. We want to continue working with the Subcommittee on regulatory reform that will recognize the high-quality care that already is being provided in many nursing homes and use them as models for what this field can become.