Posts Tagged ‘General Accounting Office’

GAO Report Criticizes Lax Oversight of Nursing Homes

APRIL 23, 2007  VOLUME 14, NUMBER 43

Individuals with disabilities, confused and vulnerable seniors and patients recovering from medical procedures often end up staying in nursing homes for weeks, months or years. Quality of care in those facilities is obviously important, and yet difficult to monitor. The good news: since most nursing homes accept Medicare and/or Medicaid dollars, they are subject to close scrutiny and, when they fall below basic levels of care, to penalties that can force them to improve. The bad news: the government agency charged with conducting that scrutiny does an inadequate job.

You won’t have to take our word for it. The Government Accountability Office (formerly the General Accounting Office, but better known as the GAO) is Congress’ investigative arm, and is famous for its non-partisan reviews of government programs. In a report finalized last month and issued to the public today, the GAO takes the government to task for its failure to impose meaningful sanctions on nursing homes that repeatedly harm residents.

The federal agency charged with monitoring nursing home compliance has a spotty track record of enforcement. The GAO report found that sanctions were too often delayed, and often voided altogether when the offending home submitted a plan for compliance. That practice did not change, notes the GAO, even for homes with multiple offenses.

The 63 homes (in four states) surveyed by the GAO, for example, had a total of 444 citations for deficiencies that actually harmed residents. It is important to note that those citations were not complaints—presumably there were many more complaints filed—but actual findings of deficiencies, and that those deficiencies resulted in actual harm to patients. So how many of those resulted in immediate sanctions? Just 69, or a little more than 15%.

Although given authority to impose fines as high as $3,000 per day against offending nursing homes, CMS (The Centers for Medicare and Medicaid Services) imposed fines of $350 to $500 per day, and those fines were not collected until the expiration of an appeal process that might take years in a given case. More than half the time CMS chose sanctions that gave the nursing homes another three months to correct deficiencies rather than the fifteen-day option available to the agency. In almost a quarter of cases meriting immediate sanctions, there was no evidence of any action being taken at all.

What did CMS say in response to the criticism? The agency “is taking additional steps to improve nursing home enforcement … but it is not clear whether or when these initiatives will address the enforcement weaknesses GAO found.”

The entire report, “Nursing Homes: Efforts to Strengthen Federal Enforcement Have Not Deterred Some Homes from Repeatedly Harming Residents,” is available online. An abstract highlights the report’s major findings.

Congressional Report Criticizes Monitoring Of Nursing Homes

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, or by contacting the General Accounting Office.

Elder Law Q&A


Question: What is the difference between guardianship, conservatorship, power of attorney and representative payee? Which is “better” for my clients and family members?

Answer: Guardianship and conservatorship are court proceedings. The former gives the guardian power over health care and placement decisions, the latter over financial matters. Both require that the subject of the proceeding be incapacitated or unable to handle matters without assistance. Neither can be done voluntarily, in the sense of signing up for guardianship or conservatorship (though the subject of the proceedings may choose not to object).

Power of attorney is the simple act of appointing someone else to handle one’s financial and/or medical matters. By definition, one must be competent to execute a power of attorney, and must be willing to delegate authority. By signing a power of attorney, one does not relinquish any control but merely designates another with overlapping authority; guardianship and conservatorship transfer authority to the guardian or conservator.

Representative payee is a designation given by some pension and other benefits programs. The most familiar of these, of course, is the Social Security Administration, which may determine that a beneficiary is unable to handle his or her own checks based on a doctor’s letter. “Rep payee” status does not require a court proceeding, and is therefore less intrusive and expensive.

Which of these choices is “better” for someone with diminished capacity usually makes no difference. Competent people can not have guardians or conservators appointed, and incompetent patients can not execute powers of attorney. Representative payee status is usually preferable to conservatorship, but will not work for bank accounts or other financial matters; representative payees are also not bonded or required to report in as much detail as conservators.

Send your legal questions to us for future discussion in Elder Law Issues.

Wrong Medications Cost Seniors Billions

Results of a study on elder care conducted by the U.S. General Accounting Office show that 17.5% of older Americans are prescribed inappropriate or questionable medications resulting in more than $20 billion of unnecessary medical costs. The GAO also said that older Americans are six times more likely to be prescribed the wrong medication than are their younger counterparts, and that 3% of all hospitalizations result from adverse drug effects.

The study concluded the reason for this phenomenon is that doctors in every field of specialization see some elderly patients on a regular basis, but are not necessarily versed in the unique needs of the elderly. The report calls for education and awareness of the specific needs of older Americans through:

  • counseling for patients about the proper drug usage;
  • managed care systems and primary physicians who monitor drugs prescribed by others treating the same patient; and
  • drug utilization and review systems, possibly through a pharmacy monitoring program.
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