Improving Enforcement & Plans of Correction

Part Eight of a Series on the Survey Process

by Steven Levenson, MD, CMD

After a nursing home is found to have deficiencies and the survey agency assesses the scope and seriousness of the incidents of noncompliance, the next phase is enforcement, which consists primarily of penalties and required plans of correction. Herein lies yet another opportunity to correct real care problems by making facility staff address deficiencies directly and effectively.

However, like many other aspects of the OBRA survey, the actual execution of plans of correction is too often inconsistent, and the underlying framework for such plans is not always compatible with performance-improvement principles. This month's column offers suggestions for improvement.

Change underlying theories of correction An article by Kieran Walshe, PhD, that was recently published in Health Affairs (2001;20:128-144; also see the February issue of Caring, p. 1) summarized the different theories that may underlie regulations. The OBRA survey process is heavily influenced by the "deterrent" theory--that is, the belief that compliance is best obtained by threatening people and imposing sanctions until they comply.

Although negative consequences may inhibit behavior, they don't ensure improvement. Improving performance depends on identifying specific reasons for inadequate performance and then applying appropriate reinforcement (Fournies FF. Coaching for Improved Work Performance. New York: McGraw-Hill, 2000). The OBRA enforcement process should incorporate these basic psychological and management concepts.

Another erroneous underlying assumption is that survey agencies should just tell facility staff what they did wrong and expect the staff to figure out how to fix their own problems. But only some facility staff can do so unaided, while others need extensive technical assistance that state survey agencies cannot readily provide.

The approach of the current survey system to correcting performance problems should be changed. It's ineffective and, as noted earlier, often defies basic management and quality-improvement principles. Instead, consequences--or the threat of them--must be targeted to the nature, scope, and causes of the infractions.

Differentiate categories of facilities All parties--government, the public, the nursing home industry, and so on--should support a more just approach to enforcement based on a more balanced appraisal of the current state of nursing home care (see editorial in the June 2001 Caring, p. 3). Targeting everyone for sanctions is no more effective than claiming that everyone will voluntarily improve if told what to do and then left to do it.

As discussed in this series, nursing home performance is not uniform. Level 1 and 2 facilities (see "Improving Compliance Determination," in the March 2002 Caring, p. 10) have mostly adequate processes and effective practices, but often benefit from upgrading their performance.

In contrast, Level 3 and 4 facilities typically have significant underlying process and systems problems that cut across many aspects of care--just as geriatric patients often have a common underlying cause of seemingly unrelated symptoms of multiple body systems.

Unless common denominators of care problems are identified, the facility may simply seem to have several unrelated issues.

Revamp approaches to enforcement Basing deficiency determination and enforcement on Tag numbers may force symptom correction, but it doesn't promote essential root-cause analysis and correction (see "Drawing Conclusions About Compliance," in the February 2002 Caring, p. 31). That's another reason why the current survey system often fails to identify and fix poor performers.

The current OBRA enforcement approach may be most ineffective or misguided relative to second-rate facilities (those that provide mediocre care, but are not bad enough to trigger licensure revocation or other severe sanctions).

Mediocre facilities invariably have significant clinical, organizational, and management problems that combine to cause serious care deficits in areas as diverse as resident abuse, pressure-ulcer incidence, and preventable hospitalizations of residents for serious fluid-and-electrolyte imbalance.

But surveyors don't find and the facilities won't acknowledge or address such problems. Instead, a facility may create irrelevant (because they don't address root causes) plans of correction such as "get the dietician to come to the facility more often" or "give inservices on offering fluids" (see "Why OBRA Regulations & Surveys Can't Fix LTC," in the October 2001 Caring, p. 26).

A more effective enforcement process would follow a series of logical steps grounded in identified performance-improvement principles (see box at right). Ultimately, sanctions must relate to a facility's specific circumstances--for example, whether the management and direct-care supervisors have adequately defined physician roles and responsibilities, assessed whether key staff are actually performing their assigned tasks, identified and addressed obstacles to adequate performance, and so on (see "Why OBRA Regulations & Surveys Can't Fix LTC," in the October 2001 Caring, p. 26, and "SOM Shortcomings: Why the Heart of the Survey is Missing Some Beats," in the November 2001 Caring, p. 36).

The administrative sections of the regulations were intended to uncover some of these systemic problems. But surveyors usually apply these sections only during extended surveys, and state agencies often don't use the findings properly in required plans of correction.

The bottom line is that these sections should be applied more effectively.

Ensure that plans are pertinent and technically valid State agencies need more uniform guidance about how to evaluate the appropriateness of proposed plans of correction. The SOM should refer to reliable references and resources (for example, the kinds of information covered in the AMDA CPG Implementation guideline) that explain how nursing facility staff can identify and fix problems that impede effective care practices.

State survey agencies should require Level 3 and 4 facilities to produce short- and long-term plans of correction. Short-term plans of correction should address simple underlying causes, and long-term plans of correction should focus on fixing more widespread or complex root causes. Although long-term plans can be initiated within several weeks, when such plans address complex causes in mediocre facilities, they may legitimately take months to implement fully.

Ensure proper follow up State agencies are expected to ensure that facility improvements endure. Proper follow up is essential to performance correction.

But the current survey system limits the number and timing of follow-up visits from state survey agencies. And, once a state agency certifies that a facility is in substantial compliance, surveyors may not return until the next survey unless there is a subsequent complaint survey.

However, too limited or superficial follow up is not likely to promote definitive performance improvement. Reviews within the first few weeks of attempted change are critical, and must identify in detail whether a facility's management and staff are headed in the right direction.

If not, there should be additional explicit guidance about effective and inadequate efforts. Otherwise, facility staff may assume that they are proceeding correctly, or may revert to previous behaviors after they are cleared.

Survey agencies have limited capabilities. If nursing facility staff cannot identify and fix their broader issues, state agencies should ensure that they get adequate help in doing so.

However, state survey agencies often lack the time, money, and staff to follow up effectively. They are not equally adept at knowing how to target sanctions to the nature and causes of failed performance. So, alternatives may be needed to monitor facilities that must correct major problems--for example, delegation of other professionals to do the job under supervision, or assigning civil monetary penalties to fund specific interventions for Level 3 and 4 problem areas.

Additionally, state agencies need criteria for identifying whether corrective actions are appropriate, local resources to provide valid detailed analysis and guidance to struggling facilities, and a political environment that allows for adequate enforcement against mediocre performers (that is, control over excessive political pressures to "back off"). Otherwise, we may expect many inadequate corrective efforts to continue.

Align sanctions properly The imposition of sanctions should also be consistent and follow well-defined principles. For example, periodic positive reinforcement facilitates performance changes. But the enforcement provisions require state agencies to impose sanctions in many cases for any recurrences of problems.

Furthermore, predominantly negative consequences decrease the frequency of any behavior--desirable or undesirable. And, facilities with serious problems cannot correct them all in a few weeks.

So, strong penalties against a facility that has already identified and begun to correct its problems are likely to inhibit--not promote--additional improvement. Therefore, the staff of a facility that makes a significant partial improvement in addressing their problems should receive pertinent reinforcement for their progress, not just penalties for their remaining problems. One way to do this would be to reduce fines to recognize progress while still retaining the potential for additional consequences if progress stalls.

A shift away from the overemphasis on sanctioning outcomes is also essential. The current enforcement process permits serious sanctions for minor process problems that may possibly be associated with negative outcomes without considering fully the staff's efforts to correct their problems, or their actual role in causing the negative outcome to begin with.

What this means is that a facility with widespread serious process failures that have not yet caused negative results may need more severe sanctions than one with minor process problems that may have been associated with significant negative results.

A Better Plan is Needed

As noted earlier in this series, the whole approach to correcting and improving nursing home performance needs an overhaul. Government agencies can only "set the table" for correction. But they cannot and should not be the ones to apply such pressure.

Peer pressure often can be an effective stimulus to change. The problem of repeat poor performers is a blight on the entire industry and evidence that the current oversight system is inadequate.

Pressure and guidance for problematic facilities must come from many directions, including nursing home associations, physician organizations, academic geriatrics centers, professional licensure boards, and other public and private agencies.

It is also essential to address the many external factors that influence nursing facility care, including reimbursement, public expectations, media portrayal of nursing homes, inadequate physician performance, and insufficient training and support for critical managers such as administrators, directors of nursing, and medical directors. That, in turn, is a subject for another column.

Dr. Levenson is a Multi-Facility Medical Director in Baltimore and Chair of Caring's Editorial Board.

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