Do Database Deficiencies Spell Danger for Residents?

Years ago, as a licensed nursing home administrator, I was 100% responsible under regulation for everything my staff did in my facility 24/7. I accepted this responsibility. I took it seriously, making certain that background checks and extensive pre-hire screenings were carried out on all applicants. These days, facilities with Corporate Integrity Agreements are required to screen all new hires and all employees annually against Federal Exclusion lists. And many long-term care companies are now going above and beyond: screening all employees annually as part of their routine compliance activities, even though they are not required to do so.


Despite the best of intentions, even annual screenings of employees can be woefully inadequate when it comes to protecting vulnerable populations against dangerous caregivers.

Sadly McKnights Long-Term Care News reports that the long-awaited national database of caregivers to be unveiled March 1 is incomplete .

According to the Los Angeles Times, 22 years have elapsed since Congress ordered the national database deployed and next week's release date debuts a deficient database. Their investigations showed that many states submitted reports only occasionally, and some states submitted incomplete information on registered nurses. States were especially deficient in reporting more recent disciplinary actions taken against problem workers. Apparently some of the missing cases were people who had done harm to residents, “a nurse, for instance, whose license was pulled after she injected a patient with painkillers in a drugstore parking lot and improperly prescribed methadone to an addict who later died of an overdose.”

With the burden of responsibility resting squarely on the shoulders of individual long-term care leaders, what does it take to get complete and accurate information from those who hold us accountable for resident safety?

The industry as a whole has never been more serious about preventing resident abuse and carefully screening job applicants in the interest of protecting residents. To wait 22 years and then have the database be incomplete and inaccurate is an insult to the tremendous efforts being made by long-term care leaders. Certainly it is in the public interest to get this right.

Good Company Policies: the road to good healthcare practices or to a 3-ring circus?

Companies that take the time to conceive good policies set the stage for good practices in healthcare. I say conceive because all too often, there’s a long road between the idea of the policy, and even the preparation of the policy, and its translation into practice on the floor. And the closer you get to the bedside, the longer that road becomes.

Michael Rasmussen, president of Corporate Integrity LLC, outlines a very clear process for making sure that policies stay relevant and current. He proposes a “lifecycle” approach to policy management that includes four elements, creation, communication, management and maintenance. Creation is an iterative process of ownership, authorship and approval. Communication involves publication, training, and attestation. Management includes enforcement and exception management. Finally, management includes review and archival.

I find this scheme very useful for its simplicity and easy application. The process itself is challenging, but this framework is a user-friendly road map.

Rasmussen also makes a compelling argument for the importance of well-managed policies in compliance and risk management. Since organizational psychology defines culture as the way work gets done, it’s easy to see the essential role that policies and procedures play by defining the way work gets done and establishing clear expectations for compliance.

The Proverbial 3-Ring Circus....

Why is it then, as vital as good policies are, that so many long-term care companies focus on policy binders rather than on content? 

So why is it, as important as they are, that so many long-term care companies focus on their binders rather than their content, burying themselves under so many policies that it becomes virtually impossible to manage the binders much less the policies effectively?  

Too often, I find that when a monitor or surveyor reviews a policy, they find it outdated or not being followed. In my own work over 30 years, I have universally found policies to be little known and little used tools. Thus, the very policies that should articulate our culture of service, care, and compliance actually work against us. Or maybe we work against them.


I think it is time to rethink the way we create, communicate, manage, and maintain organizational policies and procedures so that they serve the needs of the organization and its customers in real time. I’d like to see policies that make the organization think and learn and grow so that policies grease the wheel of performance improvement, continuously moving the company toward greater and greater achievements. Working with clients to develop tools and policies in tandem so that the principles of performance improvement are built into every practice is a major focus of our work for this very reason.

The result of regulation? It’s all in how you look at it…

Brian Garavalia, Ph.D. makes a compelling case about the relationship between regulation and environmental improvements in long-term care facilities. Hinting that regulation has led the industry to improve the appearance of physical plants, he observes that the resulting improvements don’t necessarily make facility surroundings more homelike for residents. I agree. You don’t judge books by their covers or choose post-acute facilities by theirs.

In an industry dedicated to protecting vulnerable populations, regulation has been a catalyst for improvement. It is also true, however, that highly regulated organizations naturally tend to pull control upwards—to the top—and then maintain compliance through the application of heavy monitoring mechanisms throughout the organization. Hence, we have audits of the audits; and monitors who monitor other monitors. This is true at the facility level and at the State and Federal regulatory level. Any facility that has had a look-back survey understands this dynamic.

So the downside of regulation occurs when a company focuses so hard on basic compliance—measuring quantity, not quality—that decision-making moves away from the bedside and then rests with the monitor.

A quantity-focused company will scrutinize whether this or that form is in the chart, or whether the note is written to reduce risk; and then check to see whether this or that audit was completed before the survey begins.

Instead, a quality-focused company asks whether the whole story of the person is in the record; if a given incident is fully and critically analyzed for root causes by the interdisciplinary team; and whether a personalized care plan is visible. Moreover, its true litmus test might be, “Do we have data to validate that we are doing for residents what we say we will do and what they need most?”

Complex and sometimes conflicting regulations can work against a person-centered approach to compliance.

In such a regulated environment, it’s easy to see how a company might pay more attention to meeting the floor of compliance to please its regulators, and less time on achieving the highest possible quality of care and life that is attainable for its residents. Telling the story can inadvertently reveal information that makes facilities vulnerable to regulatory backlash. Facilities and companies are reluctant to say too much that could potentially make them open to more difficulty.

While it takes a real commitment from their management and staff, the best long-term care companies focus on attaining the best possible quality of care and life for their residents and, within that framework, meets and then exceeds the regulatory requirements.

Shouldn't the Stars that Rate Facilities be the Residents?

Who decides whether a nursing home gives good care? And who has the measures to say definitively whether a facility provides an excellent quality of life for its residents?

USA Today seems invested in the Five-Star rating program. Predictably, they reported that for-profit long-term care facilities rate much lower than nonprofit homes, noting that 27% of the for-profit homes listed in their analysis rated only one star.

By contrast, industry experts like AHCA, the American Health Care Association, say that the Five-Star program is flawed because it rates on a curve, meaning that fully one-fifth of all facilities must fall in the one-star category, regardless of how they perform. Furthermore, fifty percent of what constitutes a star rating is state survey findings, which are notoriously unreliable and variable from state to state, within states, and among evaluators. There is a lot of room for individual interpretation and preference in evaluator ratings, so it is easy to see how a facility’s profit status might influence even evaluators’ ratings, leading to poorer ratings for for-profit facilities and thereby resulting directly in fewer stars.

My point, though, is not to comment on the Five-Star program, but instead to raise the issue that in all of this rating and evaluating, customer satisfaction, the customer experience is absent. In the Guest Blog, CMS Five-Star—Friend or Foe, long-term care commentator and blogger Anthony Cirillo cites the 2008 study by the research and consulting firm Holleran, “In an analysis of data from more than 12,000 nursing home residents and family members across 32 states, Holleran found little to no association between the one through five ratings given by CMS and actual satisfaction ratings. Holleran's research reflects satisfaction across skilled nursing facilities primarily in the nonprofit sector. Nursing homes rated as below average by CMS are garnering satisfaction ratings in the mid 80s, according to Holleran, which suggests these results show there are missing key elements in the Five-Star Rating system.”

I think this is unfortunate and really misses the point, since long-term care consists of human beings providing intimate services to other human beings. It seems logical that the views of the recipients of care quality of life would be directly influential in determining how a facility ranks in the Five-Star system.

Even though this is the case, and I agree that the Five-Star system is flawed, I do believe it is here to stay. I think the public demand for transparency is growing as the boomers enter the marketplace for long-term care services and I hope the industry will do what it has historically done—rise to the occasion and use the Five-Star rating system to raise the bar on compliance and performance. I look to long-term care to capitalize on this program as an opportunity for reflection, analysis, and continuous improvement.

Sad Commentary on Long-Term Care....

St. Louis Post-Dispatch’s Robert Patrick blogs about the Cathedral Rock plea that, “…the companies will be sentenced in April, likely to some term of probation in addition to fines and penalties. Corporations cannot be sentenced to prison.” Even more amazing are its 22 reader comments, most of them reflective of myths and old ideas about long-term care facilities. One person wrote, “Man, I bet that those places stunk! Old folks’ homes, or deaths waiting rooms, smell bad even when people are following all the rules.”  This comment, and others like it, reflect not only on Cathedral Rock but also on all long-term care companies.

The public is very ready to believe the worst about long-term healthcare and bad news like the Cathedral Rock story hit the industry hard. As is often said, trust is built over years and destroyed in five minutes.

This is sad because in actuality long-term care provides an extremely valuable and necessary service to society. It is part of the healthcare continuum and for the most part, the thousands of facilities and their operators and staff in this nation provide excellent quality of care and a high quality of life for the people they serve. The industry has changed rapidly in the past decades and has professionalized greatly. It is unfortunate that the public’s appetite for horror out of long-term care is fed once again.

Several of the comments about Cathedral Rock picked up on the fact that, as Patrick put it, “Corporations cannot be sentenced to prison.” Those who commented want to see individuals personally punished for these crimes against seniors. Indeed, it is easy to follow this logic. It should be understood, though, that in long-term healthcare there are other options that Patrick did not mention, such as being permanently barred from participation in Federal and State reimbursement programs. The perpetrator’s name is added to exclusion lists maintained by the Office of the Inspector General and accessible to the general public.

Companies and individuals who are seeking services can search these lists to see if the provider they are considering has been involved in some wrongdoing. Companies and individuals who are listed cannot receive government monies, even in the form of salary or payment. Many long-term care facilities check all new hires and contractors against these lists to ensure that they do not employ or use the services of anyone or any company on the exclusions lists. This at least prevents those who are convicted of criminal offenses in the provision of healthcare from repeating their offenses.

On Healthcare Quality and Compliance

Health Care Law Blog: WVHCA: 2010 CON Capital Expenditure Minimum

HIPAA and HITECH Add IT to Compliance Challenges

As the use of electronic medical records increases in long-term care, I’d like to share some words to the wise about the protection of Personal Health Information (PHI) required under HIPAA and HITECH, both parts of the American Recovery and Reinvestment Act of 2009.

In the first enforcement action under the Health Information Technology for Economic and Clinical Health (HITECH) Act taken by the Connecticut Attorney General, and subsequently blogged about by health care lawyer Bob Coffield, Health Net of Connecticut, Inc. allegedly failed to notify the AG and other officials of a missing portable computer hard drive containing PHI. This action reflects HITECH’s increased capacity for enforcement since it allows state attorneys general to file complaints on behalf of the public.

Two parts of this news stand out to me: 1) that HITECH is alive and well – so long-term care needs to be mindful about encrypting PHI data before electronically sharing or storing it; and 2) that compliance professionals take heed of HITECH reporting requirements to facilitate corporate compliance.

In addition to sharing great insight, Bob references a more extensive blog post by attorney David Harlow, that adds valuable information about compliance with HITECH.

I highly recommend both posts to you.

Could Carrots be at the Root of Psychotropic Trends?

On Friday, the US Department of Justice filed a civil False Claims Act complaint against Johnson & Johnson and two of its subsidiaries. It claims that the companies paid millions of dollars in kickbacks to Omnicare, Inc., the nation’s largest pharmacy specializing in dispensing drugs to nursing home residents. In November 2009, Omnicare entered into a $98 million dollar settlement agreement that resolved its civil liability under the False Claims Act for taking kickbacks from J&J.

The government alleges that J&J viewed Omnicare pharmacists as an extension of its sales force because Omnicare pharmacists reviewed nursing home patients’ charts, and subsequently recommended to the patients’ physicians which drugs should be prescribed for each patient. It also contends that these physicians accepted Omnicare pharmacists’ recommendations more than 80 percent of the time. In addition, the government asserts that J&J paid several forms of kickbacks to Omnicare, including rebates for the pharmacy’s implementation of programs designed to increase J&J prescriptions; paying for “data” never provided; and providing substantial “grants” and “educational funding” as inducements to recommend J&J drugs.

This weekend as I read the government’s complaint, I was especially troubled to see that listed among the drugs eligible for J&J kickbacks to Omnicare for use in nursing homes was its antipsychotic drug, Risperdal.

In recent years, I have seen a growing tendency of physicians to prescribe psychotropic medications to nursing home residents, with or without a psychiatric diagnosis.

If these allegations are true, I’m left to ponder the extent to which Big Pharma carrots contribute to healthcare providers’ selection of drug interventions without first attempting non-pharmacological interventions.

And while I'm on the topic of patient assessments prior to psychopharmaceuticals are prescribed...

I have noticed that PASRR (Pre-admission Screening and Annual Resident Review) assessments sometimes don’t match the drug regimen. Not uncommonly, a PASRR on admission to the facility will note no mental illness or disability and yet routine anti-psychotic or antidepressant medications are ordered.

In a study of the use of the PASRR to assess serious mental illness in nursing home residents, PASRRs from 44 states and 24 nursing homes were studied by reviewing medical records. The authors of the study concluded that, “Nursing facility compliance with administration and documentation of PASRR screens appears problematic. Nevertheless, there do not appear to be excessively high numbers of residents with serious mental illness, suggesting that state PASRR programs may contribute positively to the identification of people with serious mental illness. Many nursing facility residents, however, have some type of psychiatric illness, and PASRR legislation does not appear to have enhanced their ability to gain access to mental health services beyond standard psychiatric consultation and medication therapy.”

If there are not excessively high numbers of residents with serious mental illness, why does there seem to be so many on psychotropic medications?

Are we observing behaviors then seeking diagnoses to justify the use of drugs? If so, this is problematic for both quality of care and quality of life.

A more life-affirming approach is to observe behaviors, drill down to the root cause of the behavior—what exactly is triggering or causing it—and then address the root cause with non-drug interventions on a case-by-case basis. When it has been proven that all else fails, a medication may be appropriate.

Of course, medications are required for some mental health diagnoses. Even still, many medications such as antidepressants were never designed to be used indefinitely. Instead, they were developed to allow the individual to regain enough reserve to deal with the problems they face and once they improve, the drug can be slowly withdrawn.

In addition to searching out root causes of behavioral symptoms on a case-by-case basis, we encourage our client facilities to have their Behavior Management Committees track and trend behavioral triggers facility-wide. In this way, root causes that are common in the facility can be addressed more globally as the interdisciplinary team can design facility-wide interventions that solve problems for many residents at the same time. This process also allows facilities to identify areas for performance improvement such as staffing shortages at certain times or staff skills competencies that need development before they become bigger regulatory or compliance problems. This is how facilities are getting ahead of the behavior management challenges they increasingly face in today’s environment.

So, what should long-term care do with news like the allegations against Omnicare and J&J?

Clearly it can’t monitor all the marketing programs of drug manufacturers; and correlate them to the drug recommendation proclivities of pharmacists and the prescription-writing trends of physicians. It would be beneficial, however, to implement the kind of quality and performance improvement measures I have discussed so that facilities can rely less on their pharmacy consultants and more on the critical analysis of their interdisciplinary teams, armed with excellent data about root causes and trends. This process would improve quality indicators throughout the industry.
Most of all, we as an industry need to put quality of life as the top priority and stop turning to drug interventions as the first line of defense for problem behaviors. Where psychotropic drugs are concerned, doing so would have thwarted Omnicare and J&J at the door.

Cathedral Rock: A Call to Action for Us All

This week, five Cathedral Rock nursing homes pleaded guilty to felony health care fraud for failure to provide adequate care to Medicare and Medicaid beneficiaries. In the criminal prosecution and civil settlement agreements, the US Attorney’s Office of the Eastern District of Missouri cited Cathedral Rock’s failure to perform essential patient-care responsibilities like wound care and medication administration. The five facilities have since been closed. Cathedral Rock had been fined $1.6+ million. The two former employees of Cathedral Rock who filed the qui tam complaint will be rewarded $94,200 from the civil settlement.

I’ve been wondering how Cathedral Rock – or any organization in long-term care -- could find itself in this position, losing so much for what appears to be flagrant violations of standards of care and an alarming breakdown in their systems of care delivery. Like many organizations in post-acute care, Cathedral Rock’s senior management appears to be a group of highly experienced individuals with excellent credentials. Their company mission statement is both moving and laudable: “Integrity first, service above self, and excellence in everything we do.”

How can an organization that has every good intention of providing a high quality of care and service admit in plea agreements that “medical records were falsified and a ‘charting party’ occurred at Springplace to fill in medical records so that it appeared that all medication had been properly given, regardless of whether the medication was actually given or not.”?  Why is it that in highly regulated environments, people feel the need to build Potemkin villages—impressive, showy facades designed to mask undesirable facts and look good to the powers that be? Sadly and way too often, behind those facades are fallen heroes, broken promises, and downright bad practices that do harm. I’ll wager that this was not how it all started at Cathedral Rock, but this is clearly where it ended for five of its facilities.

So, what’s the learning here? How do long-term care facilities problem solve and manage in a way that broadly engenders an understanding that the company does well by doing good?

I see quality improvement coupled with compliance management as the answer. Today, Cathedral Rock is faced with the daunting challenge of rapidly implementing a comprehensive compliance program, but compliance is just part of the picture. Without a focus on improving performance in quality of life and care, without developing the systems and skills throughout the company to manage and continuously improve quality of life and care, Cathedral Rock, like so many others, will flounder on the edge of excellence and fail to fulfill its mission of integrity, service, and excellence -- over and over and over again.

And later this week…

...I saw David Zimmerman, President of the Long-Term Care Institute. He shared an astute observation with me about the dual challenges faced today by long-term care organizations. He pointed to their need to care for higher acuity patients coming out of hospitals, as well as for younger, more psychosocially challenging residents who are referred to them in growing numbers -- and the need for adaptation at every level to this new environment.

Charles Darwin couldn’t have said it any better.

In the environment David described it’s paramount that long-term care companies adapt their performance in both quality and compliance. In part, this means improving the tools and management systems that we use to assess, triage, action plan, and manage to meet complex needs at both ends of the spectrum – and every need in-between.

And so to literally practice what I preach, I am leading my company in taking stock of the suite of tools and management systems we use offer long-term healthcare companies. I plan to refine them with an eye toward organizational performance adaptation. To do this, I am pulling together a team of experts to work with me as a think tank with a goal of taking a critical look at the current landscape of long-term care compliance and identifying what’s needed to fill the gaps and refine my tools and systems. Clearly, it isn’t good enough to stand still or to chase after the latest regulatory focus anymore.

Cathedral Rock is a call to all of us in long-term care to do better. I wish Cathedral Rock much success in their efforts because I know their achievement will affect the lives of the many people who live and work in the facilities they manage. And there will be everything to celebrate in that.

Compliance's Paradigm Shift to Quality

While compliance professionals have been focused on their acute healthcare organization’s utilization and medical necessity documentation, compliance enforcement officials have been looking beyond these regulatory minimums.

Today, quality of care is the paramount issue in long-term care compliance.

This means that organizations must manage quality of care not only case-by-case, but also facility-wide, regionally, and company-wide. In short, to avoid compliance problems or to solve them once they occur, long-term care companies must focus on quality improvement.

To do so means first gathering data related to sentinel events and other quality indicators that can be readily analyzed for root causes across cases or incidents. Then organizational processes are required to put measureable and sustainable actions into place. In fact, when compliance enforcement action is required, leaders must verify that problem-solving actions are working to improve quality.

This requires long-term care leaders to think broadly about resident care and quality of life, and then problem-solve from that wider perspective.