Using Civil Monetary Penalties and State Fines to Promote Nursing Home Innovation

1
Using Civil Monetary Penalties and State Fines to
Promote Nursing Home Innovation

• Richard J. Mollot, Esq.
• Long Term Care Community Coalition
• for the
• NY State LTCOP Training Institute
• October 18, 2007
• Materials and resources on CMPs are available for
  free on our nursinghome411 website at
  nursinghome411.org/CMPProject/

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Federal Requirements

• State Licensing and Certification agencies are
  authorized to recommend CMPs for federal
  violations and to issue state fines for state
  violations
• States are allowed use CMPs/fines collected from
  violations of federal and state laws/regulations
  on
• Maintaining the operations of a facility pending
  correction of deficiencies or closure
• For receiverships and relocation of residents
• Reimbursing residents for personal funds lost
• For innovative projects that benefit facility
  residents

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Need for the Project

• Lack of information and knowledge about the use
  of fines collected by states limits their
  potential to be used for the benefit of NH
  residents.
• Used creatively, funds from CMPs/fines could
  stimulate adoption of resident centered care in
  nursing homes.
• Existing state best practices on use of
  CMPs/fines should be shared with states,
  ombudsman, advocates, providers, policy makers,
  and others.

4
Project Goal

• To encourage states to use fines collected from
  nursing home violations to support innovative,
  resident-centered practices and activities in
  nursing homes.

5
Specific Objectives

• To inform state agencies, providers, ombudsman,
  consumer groups, policy makers, and the public
  about practices and experiences in use of federal
  CMPs and state fines.
• To encourage appropriate and innovative uses of
  funds from CMPs/fines to improve nursing home
  resident care and/or quality of life.

6
How Was Study Conducted?

• LTCCC partnered with Charlene Harrington, one of
  the preeminent researchers on gerontological
  issues in the country and the National Citizens
  Coalition for Nursing Home Reform.
• Collected data from state officials as well as
  consumer groups and ombudsmen.

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Findings on State Experiences - 2004

• 47 states DC issued federal CMPs
• (except AK, SD, WY)
• 39 states DC issued state CMPs
• 41 states DC collected CMPs (10 had
• none)
• 21 states collected state CMPs/fines
• There were wide variations in
• CMPs/fines issued and collected

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Findings on State Experiences - 2004

• 46 states had fund accounts for CMPs/fines
• (except AK, CT, DC, SD, WY)
• 41 states had over 60 million in funds in 2005
• (5 states could not report)
• 32 states spent 27.7 million between 1999-
• 2005 from their account 8 states had
  not
• used funds
• Information on CMPs/fines was largely
• unavailable from states

9
Findings on State Experiences - 2004

• About half the states who used the funds used
  them for special projects to improve nursing home
  care.
• Of total expenditures, 20 was spent on provider
  projects, 5 on advocacy projects, and 10 on
  other projects.
• Some state fines were used for schools or put
  into the general Medicaid fund.

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Findings on State Experiences - 2004

• Most states who used the funds for nursing home
  projects came from the Midwest, South and the
  Middle Atlantic regions.
• Average amount funded
• Provider projects - 48,000
• Advocacy projects - 110,000
• Other - 76,000

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Findings on Getting Information

• Most states had difficulty obtaining current
  information about the number and the amount of
  federal CMPs issued and collected by CMS.
• This project had to collect some information on
  fund balances by using FOIA requests because some
  states were unwilling to provide the information
  without such a request.

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Findings on Getting Information

• Ombudsman and citizen advocacy group respondents
  were largely aware of CMPs/fines but most did not
  know how much was collected or how the funds were
  used in their states. Most ombudsman and
  citizen advocate respondents favor making this
  information public.
• 26 of state ombudsman respondents, 14 of local
  ombudsman respondents, and 31 of CAG respondents
  made CMP information available to the public.

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Findings on Process of Using Funds

• Most reporting state officials stated they do NOT
  have procedures established to inform
  stakeholders about the availability of funds from
  CMP/fines for special projects.
• Most state officials stated that they do NOT
  involve stakeholders in the decision-making about
  the use of the CMPs/fines.
• Almost 2/3 of state ombudsman respondents
  indicated a lack of participation in
  decision-making on the use of CMPs/fines.

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Examples of State Special Projects

• Arizona 33 nursing homes were funded between
  3000 and 35,000 for culture change.
• Delaware Training workshops for facilities on
  restraints and pressure ulcers.
• Florida A university research project to
  identify the extent of mental illness among
  residents and to make recommendations for
  specialized staff training a study of inadequacy
  of dental care.

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Examples of State Special Projects

• Iowa CNA recruitment and retention initiatives.
• Kansas Resident relocation and ombudsman and
  direct staff training and resource materials.
• Illinois and Kentucky Support for local
  ombudsman programs to increase staff so residents
  have access to ombudsman services with a goal of
  1 paid ombudsman per 2000 LTC beds.

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Examples of State Special Projects

• Indiana An Alzheimers and dementia care
  training program.
• Louisiana and Illinois Culture change
  initiatives.
• Maryland Quality improvement and technical
  assistance units, family council development,
  Wellspring projects, pets-on-wheels for
  facilities, and a hospice network.

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Examples of State Special Projects

• Michigan A special team for NH remediation and
  closures, a NH transition program, and evaluation
  of a NH dining assistant program.
• Minnesota Production and distribution of a
  brochure on restraint use and a training video.
• New Jersey Quality improvement, Eden
  Alternative grants, and a resident satisfaction
  survey.

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Examples of State Special Projects

• North Carolina Five programs for quality
  improvement initiatives, a university medication
  error study, and Eden Alternative and Pioneer
  Network programs.
• Ohio Technical assistance programs to help
  improve quality of care.
• South Carolina Culture change Eden
  Alternative.
• Tennessee Eden Alternative grants.

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CASE STUDIES

• Six states chosen for more in-depth study
  Kansas, Mass, Michigan, Maryland, New Jersey and
  North Carolina.
• Telephone interviews with stakeholders including
  consumer advocates, providers, ombudsmen.

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Recommendations on Process

• Involve a wide range of knowledgeable
  stakeholders in setting the criteria for and
  guidelines for the use of funds including
  residents and family members, ombudsmen, family
  council members, members of citizen advocacy
  groups, providers, and individuals with
  grant-making experience.

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Recommendations on Process

• Establish a public process including public
  notice of fund availability with a clear annual
  timeline for applications for funding of
  innovative projects and an objective review
  process.
• Establish a broad based advisory committee
  composed of stakeholder groups such as consumer
  advocates, ombudsman, providers, etc to
  establish priorities for the use of funds and to
  advise on the selection of specific projects.

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Recommendations on Process

• Ensure that the state survey and certification
  agency responsible for levying the CMPs/fines
  retains control over how those funds are used and
  is accountable for how they are used.
• Remove state requirements that restrict the use
  of funds (such as putting the funds in the state
  general fund) or prevent the funds from being
  used for projects to improve quality.

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Recommendations on Process

• Allocate sufficient funds for projects/activities/
  programs so that they can make a substantial,
  lasting impact and potentially a widespread
  impact.
• Allocate funds for programs/projects that are
  practical and can be sustained and/or replicated
  by others after the funding has ended.

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Recommendations Use of Funds

• Absolutely require that funds be used for
  purposes directly related to nursing home
  residents.
• Expend funds for CMPs/fines primarily for special
  projects programs that stimulate resident
  quality of care and quality of life that can
  ultimately be replicated.
• Limit the use of funds for relocation, temporary
  management, other licensing and certification
  activities, and state emergencies to what is
  necessary.

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Recommendations on Use of Funds

• Authorize funds for innovative projects that go
  beyond regulatory requirements and ordinary
  budget items to improve residents quality of
  care and quality of life, encourage person
  directed care, promote consumer advocacy and
  involvement and stimulate and support the spread
  of culture change.

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Recommendations on Use of Funds

• Target consumer focused projects such as work
  with family councils, resident councils, consumer
  advocacy organizations, and ombudsman projects.
• Establish an evaluation process for all projects,
  using outside evaluation experts if possible.
• Encourage programs/projects to be jointly
  developed with academic organizations, consumers
  (or their representatives) and established
  experts.

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Recommendations On Information

• Publish annual summary reports on the amount of
  funds available from CMPs/fines, the specific
  uses of the funds by year, the organization
  receiving funds, and details on the project
  evaluations. This information should include
• Whether there is a special account set up
• A quarterly account balance
• The process for applying to use the funds
• How the funds are used
• The states evaluation of the program/project

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Recommendations On Information

• Ensure that these reports are distributed to long
  term care ombudsmen and advocates.
• State ombudsmen should include information about
  use of CMPs/fines in routine training offered to
  local ombudsmen, and offer them suggestions about
  how to inform the public about these enforcement
  actions.

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Strategies

• Educate the public in your community.
• Promote grassroots action.
• Participate in the decision-making process on how
  to use the funds to improve nursing home care and
  quality of life advocate for role through state
  ombudsman office, NY SOFA, ombudsman association.
• Propose projects or programs for funding that
  meet the study's recommendations and
  recommendations of CMP stakeholders in NY.

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Strategies

• Request information on CMPs/ fines levied and
  collected in your state use this information to
  continue informing the public or to apply for
  money.
• Advocate for legislation that will require fines
  collected to be used for programs that improve
  resident quality of life.

31
Current Status

• NY State has close to 2 million in its CMP
  account.
• DOH released first request for proposals (RFP)
  that was limited to nursing homes with poor
  pressure ulcer performance to pay for tech
  program LTCCC and other consumers very
  disappointed.
• LTCCC responded by
• Voicing concern to DOH officials.

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Current Status

• As a result of our advocacy, DOH modified the
  current RFP to require input from nursing home
  community.
• DOH also agreed to quickly issue a new RFP that
  is more in line with what stakeholders in NY want
  and the recommendations from our study.
• We have issued a citizen action so people can let
  DOH, Governor Spitzer and senior legislators know
  how they feel about the use of CMP funds (go to
  www.ltccc.org).

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To Learn More Participate

• Join the NY State CMP Stakeholder Group at
  http//groups.google.com/group/ny-cmp-stakeholders
  . LTCCC is using this to keep people informed
  about developments. You can
• Hear when DOH releases a request for proposals
• Get news on major CMP developments
• Talk to others interested in CMPs (including
  potentials partners with whom to apply for
  money).

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To Learn More Participate

• The full study, along with resource materials and
  news on CMPs, can be found on LTCCCs homepage,
  www.ltccc.org, or by going directly to our
  nursinghome411 websites CMP page
  www.nursinghome411.org/CMPProject/.