CMS must notify nursing homes prior to applying a mandatory remedy. For immediate jeopardy cases, notice must occur at least 2 days prior to applying the remedy and for all other cases, notice must be sent 15 days prior to applying the remedy, eg, on day 75 for 3 months of noncompliance.
In April 2006, in a repeat performance of his July 2004 letter, Senator Grassley was writing to his pen pals at the CMS again, citing the exact same problems complained of in 2004.
He once again wrote, "the GAO discovered two consistent and longstanding problems: serious inconsistencies in the results of state surveys and the continual understating of negative findings."
"It is evident that there is questionable data resulting from state surveys in terms of both its accuracy and consistency," Senator Grassley wrote. "Often, the information is understated, misconstrued, or just plain inaccurate."
"A chronic and serious problem in the process has been the understating of negative findings by state surveyor agencies," he said.
"Random" nursing home surveys are many times not random at all, he said. "The level of predictability of these visits are sometimes all too predictable," he told the CMS, "and this permits nursing home staff to conceal instances of poor quality care."
Bells are going off in my head. Duh - where have I heard all of this before?
Then in May 2006, the Office of Inspector General released a report on a study that determined the extent to which the CMS applied the required "mandatory remedies" for nursing homes not in compliance.
Of the 55 cases requiring termination during 2000-2002, the study found, CMS did not apply the mandatory remedy as required in 30 cases or 55% of the time.
CMS is required to terminate nursing homes that fail to return to "substantial compliance" within 6 months, or have unabated immediate jeopardy deficiencies for 23 days.
The study found that 23 cases that required termination were not terminated and these facilities returned to compliance on average 17 days after the termination should have been applied. Seven cases with unabated immediate jeopardy deficiencies were not terminated.
Of the 706 cases requiring DPNA in 2002, 28% percent were never applied and 14% were applied late, largely due to late referral of cases by state survey agencies, the report said.
In those instances for which the remedy was never applied, the facilities were out of compliance on average 19 days past the required date to begin denying payments. In those instances in which the remedy was applied late, the facilities were out of compliance on average 40 days past the required date. In both situations, the report said, facilities were allowed to receive payment past the required date.
In 95% of cases for which mandatory DPNA was handled inappropriately, states did not refer cases to CMS on time. In 2002, the State Performance Review data showed that 38 of the 48 states that had cases requiring the DPNA did not meet the standard of referring 95% of the cases on time.
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