Three reports in the past month have outlined serious problems with the way some nursing homes and hospices are caring for their patients.  The tales are similar: A relative handful of providers are delivering poor, even dangerous, care that is being hidden from consumers. But the real story is far more troubling:  Neither the federal government nor many states have the resources (or perhaps the interest)   to do much about it.

Years of budget cuts make it harder for federal or state government to respond to these bad actors. Industry resistance to government regulation handcuffs enforcement.  And industry’s often-passive attempts at self-regulation green lights behavior that tars all providers and puts patients at risk.

A failed program

The first story involves persistently low-quality nursing homes. In June, US senators Bob Casey (D-PA) and Pat Toomey (R-PA) released a report on nursing homes that regularly fail state inspections. In theory, the federal Centers for Medicare and Medicaid Services (CMS) has a system for dealing with these facilities, but the study found that the program is a failure.

CMS designates facilities with numerous cases of patient or resident abuse as Special Focus Facilities (SFF). As the name implies, they are subject to more frequent inspections to determine whether they have addressed their problems. Normally, nursing homes are inspected every 12-15 months. Designated facilities are reviewed at least every six months.

In addition, the CMS website discloses nursing homes that are designated as SFFs. Consumers who use the CMS Nursing Home Compare online tool can identify these facilities for themselves.

Limiting the list

But here is the problem: Due to budget constraints, CMS designates a maximum of only 88 nursing homes nationwide as SFF facilities. It does not matter how many put their patients at risk, only 88 make the list. Only after one is removed can CMS add another.

As a result, another 400 facilities “with a persistent record of poor care” that should be listed as SFFs as considered merely  “candidates” for the list. They face no additional oversight and are not publicly identified.

In short,  hundreds of facilities are harming patients. CMS and the states know who they are. But they do not have the resources to do anything about it. At the very least, they should designate all facilities that fail to meet minimum standards as SFFs and disclose their names to consumers.

Risky hospices

The hospice story is sadly similar.

New Internal government reviews (here and here) found that about one in five hospices have had at least one serious problem that could put patients at risk of harm. One investigation by the Department of Health and Human Services Inspector General (IG) identified about 300 hospices as “poor performers.” Most had serious problems that put patients at risk over multiple years and many also were the subject of many patient or staff complaints. The IG identified 40 as having an especially long history of poor care.

These problems are supposed to be identified by either state employees or private contractors who review hospices once every three years.  Yet, the OIG found that the surveyors don’t always cite hospices for the most serious violations. Some don’t even report crimes to local law enforcement.

Serious violations

Paradoxically, one reason may be that CMS can penalize hospices that violate its rules only by shutting them down. It is not allowed to impose the kind of intermediate penalties it uses for providers such as hospitals or nursing homes. Knowing that troubled hospices would be closed may discourage surveyors from writing up providers.

CMS also imposes less stringent reporting requirements on the hospices themselves. For example,   hospitals must self-report their violations of CMS rules. Hospices generally do not.

To be fair, providers—nursing homes, hospices, and hospitals—often are written up for problems such as failing to do paperwork properly. But this report is not about paperwork violations. It is about practices that harm the most vulnerable.  These bad actors represent just a small fraction of all hospices. But people at the end of life never should have to experience poor care.

The OIG recommended a long list of reforms. Some urged CMS to:

  • Strengthen requirements for hospices to report patient harm
  • Require hospices to better educate staff to recognize and report abuses or neglect
  • Better encourage surveyors to report serious harm or crimes
  • Make it easier for staff and hospice beneficiaries and their families to make formal complaints.
  • Disclose survey results on its Hospice Compare web tool.

Increase oversight of hospices that repeatedly violate regulations

There is no question that regulations can sometimes limit the ability of nursing homes and hospices to provide the best possible care to their patients. But these are reasonable proposals. If CMS is serious about protecting vulnerable seniors from harm, it should adopt —and properly fund –them.  Now.