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National Association for Regulatory Administration

Brian HortertConcordia Lutheran Ministries

Beth Greenberg, MPA, MARegulatory Affairs and Research Manager

Nick Luciano, Esq.Legislative Council

September 13, 2011 8:30-10:00 AM

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Objectives

1• Provider Experience with Surveys

2• Resources for Quality Improvement

3• Common Goals, Different Perspectives

4• Case Study of Regulatory Change

September 13, 2011

Brian HortertExecutive Director,

Concordia of South Hills

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Work History

• 1986 - Started first Personal Care Home• 1992 - Purchased a 2nd home in 1992• 1995- Home Health Social Services• 1998- Skilled Nursing Social Services and NHA• 2001- Present - VP of Personal Care (705

Licensed beds) and CEO of Concordia Lutheran Ministries of Pittsburgh, a CCRC in Mt. Lebanon.

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Concordia Lutheran Ministries Organization

Adult Day Care

Child Care

Hospice

Home Health

Personal Care

Skilled Nursing and Rehab

Independent Living

Medical Equipment

Pharmacy

130 year old not for profit, providing:

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Appointments to Boards of Directors

Medical Equipment

Home Health

Hospice

Pharmacy

CCRC

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Provider Frustrations / Viewpoints

• Perception that Surveyors are unreasonable• Survey process is punitive• Difference between regulation and

interpretation

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Surveyor frustrations (as related to providers)

• Providers view you as the enemy• Disorganization of providers during the survey

process• Staff hide during the survey

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Surveyor Frustrations (as related to outside forces / directors)

• Used for litigation • Used by politicians during election time • Chastised for not finding enough deficiencies

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Systemic Frustrations Providers and Surveyors

• Care delivery in U.S. is in silos (SNF, PC, Hospital, Home Health)

• Increased demands with decreased resources• Political environment – Change in

Administration

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Improving Quality

• Director of Education and Compliance• Mock survey process• “Call your friendly neighborhood inspector”

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How do we effect change together?

• Help develop a system for worry free self-reporting

• Team approach for effecting change• Move the silos.

September 13, 2011

Beth GreenbergRegulatory Affairs & Research Manager

LeadingAge PA

Common Goals, Different Perspectives

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About LeadingAge PA

LeadingAge PA’s mission is to promote the interests of our members by enhancing their ability to provide quality services efficiently and effectively; and by representing our members through cooperative action.

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…Who Are LeadingAge PA Members?

Many Services

• Adult Day Services• Continuing Care

• Home Care• Home Health• LIFE Programs

• Nursing Facilities• Personal Care Homes• ALL are Nonprofits

Many Licenses• Aging• Health

• Insurance• Public Welfare

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Profile of Services – A Sample

Respite Services

Personal Care Homes

Nursing Homes

Government-Subsidized Housing

Housing

Home Health

Adult Day Services

0 100 200 300

Number Who Provide:

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The Promise of OBRA ’87…

• OBRA ‘87 legislation, based on a 1986 report by the Institute of Medicine, strove to: – create an oversight system that ensured sustained

compliance of nursing homes with regulations.– foster a high quality of care and high quality of life

for residents.

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Difficult, But Worthwhile

• Challenges occurred from the outset and remain in implementing ‘OBRA

• There have been a series of studies; this one in 2005 found that improvement has been made but more needs to be done

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LeadingAge Task Force on Survey, Certification and Enforcement

• In late 2006, LeadingAge (formerly AAHSA) convened a Task Force to examine the current oversight system for nursing facilities.

• 20 individuals served on the Task Force including LeadingAge PA’s Executive Director, Ron Barth.

• Task Force Report, Broken and Beyond Repair was issued in June 2008.

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What Went Wrong?

• Why were providers so angry and frustrated?– A plethora of personal stories about the survey

process, hauntingly similar across geography:– Negative and adversarial encounters with

surveyors intent on “finding something wrong”– By the end of the survey providers were angry and

staff were demoralized and ready to quit– …In spite of the provider’s commitment and

ongoing efforts to provide high-quality care

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What Isn’t Working?

• Focus on punishment rather than quality improvement (guilty until proven innocent; surveyors and providers both support a more consultative role)

• Complexity breeds inconsistency • Idiosyncratic interpretations of CMS guidelines• Informal Dispute Resolution (IDR) values

expediency over fairness/cannot change scope and severity

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What Isn’t Working?

• Inconsistency signals deeper flaws– The survey system inevitably leads to inconsistent

results and poor feedback regarding real quality issues because it is characterized by:

“unrealistic expectations about how many recommended care processes can be measured; poor definition of measures and methods of measurement; confusing rules linking measures to deficiency statements; and a survey culture that depends on expert judgment.” Dr. Jack Schnelle, Vanderbilt University– State Operations Manual (SOM) for example

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What Isn’t Working?

• Regulations that don’t encourage culture change or person-centered innovations; do POCs bring about compliance or just increase paperwork?

• Poor communication – strained during survey; nonexistent between surveys

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Series of Recommendations

• 31 recommendations• S. 3407 in last Congress (not enacted):

Institute of Medicine to study nursing home survey

• Many of the state-level recommendations are reflected in LeadingAge PA’s 2011-12 Public Policy Objectives

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Summary of Task Force Recommendations

• Improve the quality of survey teams;• Foster effective communication among

regulators, surveyors and providers;• Improve consistent application of regulations;• Encourage providers to strive for excellence;• Facilitate accurate reporting to consumers;• Improve fairness of enforcement and dispute

resolution.

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Policy Objectives 2011-12

• Promote meaningful changes to the nursing facility survey process to create a resident-focused, outcome-related system.

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This system must:

– Promote and encourage consumer-focused care;– Take swift and appropriate actions where poor care is

found;– Apply a standard of reasonableness and proportionality

to punitive actions;– Introduce an effective appeals process;– Provide for an impartial dispute resolution process;– Encourage and complement exemplary care;– Mandate joint provider-surveyor training; and– Require government surveyors to understand the entity

they are reviewing and the consumers being served.

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So what are we doing about this?

• QI initiatives• Data initiatives• Regulation and Survey Initiatives• Legislation

– HB 1052 and SB 1095 (Reform of Nursing Home IDR Process)

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Some Examples - Good Survey Experiences

• Inappropriate behavior/treatment of staff – reported and corrected.

• Surveyors addressed issues during survey that encouraged us on our journey toward person centered care

• Surveyors actually commented that we made good progress at minimizing incidence of pressure areas.

• Field Office uses this location to orient new team leaders/surveyors.

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Examples – Bad Survey Experiences

• Continuing difficulty with surveyors through many years regarding physiological need regarding positioning devices or wheelchair positioning.

• Non-nurse surveyors conducting chart reviews have difficulty interpreting charts.

• At Exit Interview, always state: “We are not here to find the good things you are doing…” Why not?

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Member Feedback on Surveys

• Sense that existence of poor quality nursing homes lead surveyors to believe all homes are poor quality.

• Would like more advice on how to comply when the surveyors find a home out of compliance.

• Joint training is essential – we could learn so much from each other.

• Indicator survey, done in PCHs with good history of compliance…appreciated and a good way to direct more resources where needed.

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Quality Improvement Initiatives

• Regulation and Survey• CMS Quality Assurance/Quality Improvement and

Patient Safety Initiatives• Quality Improvement Organizations (QIOs)• Advancing Excellence• Focused initiatives such as PA Restraint Reduction

Initiative (PARRI)• PA Patient Safety Authority• Accreditation• Consumer Education/Involvement

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http://www.healthcare.gov/center/programs/partnership/index.html

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38http://www.nhqualitycampaign.org/

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Goal: Quality of Life for Each Nursing Facility Resident

• We have different roles but same goal. • The work is difficult but worthwhile.• We are making progress…• But we are not there yet.• We must continue to work together and

achieve this goal, for the benefit of the residents.

September 13, 2011

September 13, 2011

Nick Luciano, Esq.Legislative Counsel

LeadingAge PA

A Case Study of Regulatory Change

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Landscape of Licensed Community

DPW licenses Personal Care Homes for the Commonwealth of Pennsylvania.As of August 31, 2011 there are:• 1336 Licensed Personal Care Homes• 67,344 Licensed Personal Care Beds• 47,355 Residents in PCH’s (70.3%

Occupancy)

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Landscape of Licensed Community

Snapshot of Residents by Age, Need, and Income Resident

Description of Resident Number % of Pop.Residents 60 Years of Age or Older 42,016 87.06% Residents with a Mobility Need 8,806 18.25% Residents with Mental Illness 6,890 14.27%Residents with Dementia 4,398 9.11% Residents with a Physical Disability 3,751 7.77%

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Landscape of Licensed Community

Total Capacity and Number of Licensed Personal Care Homes Month/Year Homes Capacity Homes % Capacity

Change % Change • December 2010 1,362 68,012 - 4.36% - 1.77% • December 2009 1,424 69,237 - 0.14% +0.12% • December 2008 1,426 69,151 - 4.42% - 2.46% • December 2007 1,492 70,154 - 7.96% - 5.60% • December 2006 1,621 74,316 +1.44% +2.53% • December 2005 1,598 72,479 - 5.44% - 3.00%

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Case Study: Personal Care Home Occupancy Code Statement of Policy

DPW issued a draft Statement of Policy on February 2, 2010 mandating that all PCH’s serving immobile residents must be I-2 construction.

What this meant for providers is that no NEW immobile residents could be admitted until facilities are retro-fitted to I-2 specifications. No current residents will be displaced.

DPW points finger at Department of Labor and Industry. Labor and Industry points finger at DPW. We didn’t really care about the who…just the why. Our

world had changed, without anything having changed.

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Case Study: The Backstory

How in the world did we get here? Away we go… 1980: DPW begins licensing Personal Care Homes under Act 105 1984: Fire & Panic Law regs. adopted—PCH’s grouped in C-2 class

along with hotels & motels. NF’s and hospitals grouped in C-1 class. 1988: Act 185 amends Welfare Code to allow immobiles to reside in

PCH’s. Immobiles defined as “unable to move from one location to another or has difficulty in

understanding and carrying out instructions without the continued full assistance of others.

Act also requires L&I to evaluate the fire and safety laws for PCH’s and recommend to General Assembly new classifications for PCH’s.

1990: L&I reports to General Assembly that PCH’s should be C-1. 1996: L&I Task Force developed amendments to Fire & Panic

regulations…but abandoned the effort as efforts ramped up to pass the Pennsylvania Construction Code Act.

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Case Study: The Backstory

How in the world did we get here…continued… 1999: Act 45 passed—Pennsylvania Construction Code Act.

Sect. 104—Applies to “construction, alteration, repair and occupancy of all buildings.”

Sect. 104(d)—“Nothing in this act shall limit the ability of the Department…to promulgate or enforce regulations which exceed the requirements of this act.”

Sect. 1102—Repeals all portions of the Fire & Panic Act but regulatory authority. Incorporates by reference the International Building Code.

2004: UCC regs. allow for alternative construction materials and methods if approved by an accredited organization.

2005: 2600 PCH regulations finalized. Fire safety issues addressed, but no mention of Occupancy Permit changes…hmmm.

2006: IBC updated. Assisted Living and Residential Care facilities specifically identified as I-1. Occupants of AL’s described as “capable of responding to an emergency…without physical assistance.”

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Case Study: The Backstory

Yes…there’s more… 2009: IBC updated. Group I-1 is unchanged, but I-2 includes new

definition for Nursing Homes as “serving 5 persons and any of the persons are incapable of self-preservation.”

It is this last phrase that led DPW to publish its draft statement in February 2010. DPW equated its definition of “resident with mobility needs” with the IBC definition of “incapable of self-preservation.”

DPW claimed that the IBC update in 2009, an effective regulatory change, made an I-1 facility an inappropriate placement for an immobile resident.

After much discussion and negotiation, DPW decided to publish as final on September 18, 2010 with an effective date of November 1, 2010. The fallout was significant.

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Case Study: The Response

Major statewide provider associations assessed how to reverse, or at least postpone implementation of the policy. Fight could be on the issue of an unpromulgated regulation, forcing the

Department to proceed through the regulatory process. Fight could be in the Legislature, where legislators would make a

definitive statement on what is an appropriate occupancy permit for facilities serving PA’s seniors in a home-like setting.

Might be able to persuade the Department to delay implementation, and allow for equivalencies of safety through staffing, programming, and other fire suppressive measures such as sprinklers.

The result was an amalgam of all three.

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Case Study: The Response

DPW—under pressure from the legislature—convened a working group of stakeholders to look at the problem. Consumer advocates liked the Statement of Policy and wanted it

implemented. Providers did not like it and wanted to build in alternatives or

equivalencies to avoid cost-prohibitive retro-fitting.

After a series of meetings, there eventually was consensus that the statement of policy was not beneficial as drafted.

The issue came down to access…with some legal questions thrown in for good measure.

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Case Study: The Response

Why was access an issue? As noted earlier, there are 1336 licensed PCH’s with over

47,000 residents—and 18% of those residents have some “mobility need”.

According to DPW’s numbers, only 43 PCH’s had the appropriate occupancy designation. That’s a BIG gap.

The question also had been raised as to whether I-2 was the safest designation for this population. I-2 actually is less safe than I-1 when looking at interior walls

between individual units, while exterior walls withstand more under I-1.

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Case Study: The Response

What was the result? January of 2011 the Department decided to

suspend implementation of the Statement of Policy.

The workgroup was to continue to meet in order to arrive at language that could be accepted by all parties.

Currently in the midst of this process.

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Case Study: The Lesson

How could this have been avoided? DPW should have convened a meaningful

workgroup at the outset. Get all of the appropriate parties in the

appropriate meetings. Assume that all “parties” are “partners” working

toward the same end goal.

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Contact Information

• 412-278-1300• bhortert@concordialm.org

Brian Hortert Executive Director, Concordia of

South Hills

• (717) 790-3947• nick@LeadingAgePA.org

Nick LucianoLegislative Counsel,

LeadingAge PA

• (717) 790-3948• beth@LeadingAgePA.org

Beth GreenbergRegulatory Affairs & Research Manager,

LeadingAge PA