HHS OIG Releases Updated Nursing Facility Compliance Program Guidance: Quality and Safety Lessons

The Nursing Facility ICPG places a heavier emphasis on the need for nursing facilities to focus on residents’ quality of care than the OIG’s 2008 guidance. If a nursing facility fails to meet its care obligations in accordance with professional quality standards, claims submitted for such services may be considered false. The OIG and the US Department of Justice (DOJ) have increasingly used quality of care concerns as the basis for investigations and enforcement actions.

STAFFING LEVELS, SHORTAGES, AND COMPETENCIES

Under the ROPs, nursing facilities are required to have enough appropriately skilled staff to provide services based on residents’ acuity (89 Fed. Reg. at 40,877). As we previously reported, OIG asserts that increasing the number of registered nurses and overall nursing staff should be a priority in the nursing facility industry because failure to maintain staffing levels or to ensure staff are sufficiently trained to provide medical, nursing, and related services for residents may lead to allegations of substandard care. To address these risks, the Nursing Facility ICPG recommends:

• Hiring nursing leadership to help nursing facilities achieve a high standard of quality and set the tone for other nursing staff. Nursing facilities should consider hiring a director who has education and competency in geriatric nursing or an appropriate specialty in addition to management, regulatory compliance, and professional development experience.
• Improving recruitment efforts by offering competitive compensation and benefits packages, incentivizing current employees to refer qualified candidates, and engaging with the community by partnering with local educational institutions to establish direct routes for new graduates to obtain employment.
• Investing in ongoing education and training programs to enhance the skills of existing staff, build employee loyalty, and improve retention rates.
• Creating a high level of person-centered, relationship-based care by consistently assigning the same staff to care for specific residents.
• Conducting a continual assessment of staff members’ abilities to manage their responsibilities effectively and ensuring they have the necessary tools to support their job functions.

APPROPRIATE RESIDENCE CARE PLANS AND RESIDENT ACTIVITIES

OIG found that efforts to improve individualized resident care plans and enrichment activities may have a demonstrable effect on quality of care and quality of life at nursing facilities. The ROPs require nursing facilities to develop and continuously assess and modify comprehensive, person-centered care plans for residents to address their medical, nursing, and mental and psychosocial well-being. However, OIG found that these plans often do not meet Medicare requirements or reflect residents’ needs. Nursing facilities have reported to OIG the following successful strategies for mitigating risks related to poor care planning:

• Developing policies and providing training to encourage open communication in care planning between direct care providers and interdisciplinary teams.
• Documenting care-planning meetings to help standardize the process.
• Scheduling meetings between facility leadership and physicians to promote physician engagement in each resident’s care and to discuss residents’ specific needs.

To maintain a robust activities program, nursing facilities should:

• Maintain an adequate number of skilled staff members to increase the likelihood that activity programs will succeed.
• Dedicate the necessary resources to meet the residents’ specific interests and encourage high rates of attendance.
• Provide the activities director with the necessary authority to develop and implement activities programs appropriate for the resident population.
• Explore options for appropriate, people-centered activities by continually soliciting ideas from staff, residents, and caregivers.

CHALLENGES DUE TO DEMOGRAPHIC CHANGES IN RESIDENT PROFILE, HIGHER RESIDENT ACUITY LEVELS, AND BEHAVIORAL HEALTH ISSUES

OIG observed that significant changes in the demographics of residents over the years has led demand for nursing facilities to increase at a faster rate than anticipated since issuance of the 2008 guidance. To manage changing resident demographics, OIG recommends that nursing facilities consistently evaluate internal policies and assessment tools that determine resident admissions and, before admitting each potential resident:

• Obtain all clinical, social, and behavioral information.
• Consider the current and foreseeable services that the potential resident would need and the facility’s ability to maintain those services.
• Ensure that the facility has the capacity, ability, and resources to provide services as of the admission date.

MEDICATION MANAGEMENT AND APPROPRIATE USE OF MEDICATIONS

Under the ROPs, nursing facilities are required to provide “pharmaceutical services” for each resident. A nursing facility should consider:

• Offering training to all staff involved in resident care on proper medication management practices and documentation requirements.
• Implementing a review process to identify the frequency of medication errors.
• Developing policies and trainings to prevent the reoccurrence of these incidents.

The ROPs prohibit nursing facilities from using chemical restraints that are not required to treat a resident’s medical symptoms for purposes of “discipline or convenience.” A resident’s medication regimen must also be free from all unnecessary drugs. OIG found that nursing facilities with lower nurse-to-resident ratios and higher percentages of residents with low-income subsidies have the highest rates of psychotropic drug use, which raises concerns that such facilities may be misreporting schizophrenia on the Minimum Data Set (MDS) to inappropriately impact CMS’s quality measure on antipsychotic use. OIG suggests that nursing facilities should:

• Continually develop and provide training that reinforces the importance of integrity and accuracy in compiling and reporting resident assessment data in the MDS, as misstatements may form the basis for government enforcement.
• Encourage collaboration between attending physicians, consultant pharmacists, and other resident care providers and develop communication channels to allow all other staff to raise medication questions.
• Standardize practices for an interdisciplinary team approach to determine why a resident has been prescribed a certain medication.
• Require consistent documentation and monitoring of the appropriate use of medication.
• Ensure that medication management practices are consistently applied and routinely evaluated.

In all cases, pharmaceutical decisions should always be objective, unbiased, and in the best interests of residents. OIG found that conflicts of interest could lead to risks of inappropriate prescribing. To minimize potential conflicts, nursing facilities should:

• Have separate contracts for consultant pharmacists and long-term care pharmacy services.
• Require consultant pharmacists and long-term care pharmacies to disclose any affiliations that may create a conflict of interest.
• Monitor drug records for patterns of inappropriate prescribing.

RESIDENT SAFETY

OIG states that resident safety is an essential component of high-quality care and notes additional areas of risk not specified in its 2008 guidance. Nursing facilities should develop a safety culture that includes the development of communication systems, continual monitoring and reevaluating of quality and safety events, and training and education initiatives. Nursing facilities and industry stakeholders have reported to OIG that the following, taken together, may help mitigate instances of resident harm:

• Clearly promoting safety initiatives by ensuring effective communication systems are in place that facilitate reporting of resident harm.
• Developing and promoting resident safety education for all staff and showing residents how to self-report mistreatment. OIG suggests including examples of what may constitute an adverse event, using identified safety failures as learning opportunities, and conducting specialized trainings on how to recognize the warnings signs of neglect and abuse.
• Regularly monitoring and evaluating safety systems to determine the potential for failure and identify opportunities for remediation.

STAFF SCREENING

Nursing facilities should check OIG’s List of Excluded Individuals and Entities to confirm the exclusion status of prospective employees or contractors. OIG recommends additional actions to avoid potential overpayment liability for claims furnished by excluded individuals, including:

• Implementing standardized recruitment and screening practices to ensure that prospective personnel have appropriate training, education, and certification.
• Checking prospective personnel’s criminal records for all states in which they have worked or resided.
• Conducting monthly screenings of personnel, including verifying licensure status.

EMERGENCY PREPAREDNESS AND LIFE SAFETY

The ROPs provide specific minimum requirements for nursing facilities’ emergency preparedness programs. OIG found that even if nursing facilities’ plans contain all necessary elements, many nursing facilities fail to follow their own plans. Nursing facilities should continually assess whether they are dedicating the necessary resources and ensuring that emergency preparedness policies and protocols are regularly evaluated. Industry stakeholders have also cited the importance of including post-evacuation procedures to address adverse reactions residents may experience.

INFECTION CONTROL

After the COVID-19 pandemic, OIG learned that nursing facilities struggled with effectively implementing their infection control practices and quarantine procedures. Therefore, establishing an effective infection prevention and control program (IPCP) should be a priority for nursing facilities, given residents’ increased susceptibility and exposure to infection. The following recommendations by OIG may improve an IPCP:

• Retain an independent consultant and an infection preventionist.
• Conduct regular and intensive staff training, including lessons from prior lapses.
• Implement a system to periodically evaluate whether sufficient and necessary supplies are available and address any shortages.

FACILITY-INITIATED DISCHARGES

The Nursing Facility ICPG identified a rising rate of inappropriate facility-initiated discharges of residents with behaviors that endangered them or others in a facility. OIG recommends that nursing facilities ensure that staff are trained on what constitutes an inappropriate transfer and discharge that violates federal regulations. A nursing facility should develop the following processes for appropriate resident transfer or discharge:

• Confirm the resident, family, or guardians have been informed about the location and availability of any new facility, as well as the appropriateness of resident services provided.
• Facilitate scheduling of a predischarge site visit to the new facility.
• Ensure the resident is capable of self-care or has other arrangements if discharged to the resident’s home.
• Work with the new facility to provide all information about the resident’s care needs so that the resident’s transition may be more comfortable.

KEY TAKEAWAYS

Nursing facilities’ ROPs already require prioritization of quality of care and resident safety as part of nursing facilities’ overall compliance programs. The OIG, DOJ, and other regulatory agencies under the Biden administration enhanced enforcement efforts and collaborated with law enforcement partners to take action against nursing facilities that provide substandard care or subject residents to dangerous or unhealthy living conditions. While the Trump administration’s enforcement posture is yet to be determined, the Nursing Facility ICPG assists nursing facilities in developing and maintaining compliance and quality programs to protect the health and safety of residents in the normal course and in the event of a future public health emergency.