Why OBRA Regulations & Surveys Can't Fix LTC

Part Two of a Series on the Survey Process

by Steven Levenson, MD, CMD

The OBRA regulations and the accompanying survey process purportedly were created to improve the quality of care in nursing homes. But the regulations provide only a partial foundation for proper practice in long-term care, and the survey process only occasionally promotes--and often inhibits--desired performance.

Why do I say that OBRA regulations give only a partial foundation? For one thing, regulations can only indirectly affect quality. Staff, practitioners, and managers--not some generalized "facility"--are the ones who deliver care and support services. Regulations and surveys can only affect long-term care outcomes when they affect the performance of the people who give care.

But regulatory guidelines and protocols often don't allow us to affect or evaluate how well care is being given because they're too general. They set expectations and tell surveyors how to identify critical issues. But they don't fully address the three basic tenets of adequate performance: knowing what we should do, and why and how we should do it.

The Minimum Data Set (MDS) focuses mainly on a person's ability to function (eating, continence, etc.). The Resident Assessment Protocols (RAPs) offer some guidance on defining problems and identifying their causes. But they both skip many important details, especially about methods for making and recognizing appropriate care decisions.

Both tools can help staff determine and document whether an individual has signs and symptoms that could indicate delirium (lethargy, fluctuating attention span, abrupt change in eating, etc.), for example. Such findings in the MDS may trigger the delirium RAP, which tells us that the individual might have delirium and suggests some possible causes. But neither tells us how to verify that a patient has delirium, or some other condition, or several problems simultaneously, or how to diagnose or manage specific primary or secondary causes of delirium.

Guidelines, Protocols, & Judgment

The Center for Medicare and Medicaid Services has tried to help surveyors recognize if appropriate care has been given by providing guidelines and investigative protocols. But they aren't systematic and barely touch on some critical steps in the care-delivery process, such as determining whether suitable interventions were made.

Nor do they clarify which external standards of care (e.g., clinical practice guidelines) are relevant or when following such approaches may take precedence over OBRA guidelines. They use terms such as "sufficient," "timely," and "comprehensive," but rarely explain how to tell when an evaluation or action is "timely" or "comprehensive" enough. They focus mainly on what might be important or could be wrong, but do not offer detailed procedures that could help us decide what should or should not have been done, whether important things were done right, or to what extent a mistake affected specific patient results.

The result? Surveyors use their judgment, which may simply reflect personal opinions based on habits, hunches, and limited understanding.

For example, surveyors must determine whether a resident's dehydration was medically unavoidable. But CMS guidelines offer an oversimplified approach to evaluating facility handling of the situation. They give surveyors general advice, list some monitoring options, and present some diagnoses (cancer, kidney failure, etc.) that might make fluid imbalance unavoidable. They emphasize the facility's responsibility to give fluids, but say little about how to recognize other reasons for fluid imbalance--e.g., electrolyte imbalance, adverse drug reactions--when adequate fluids have been given. Such conditions are often missed, resulting in preventable functional decline and unnecessary hospitalization.

The fact is, regulations do not adequately define good practice. Therefore, complying with regulations does not ensure adequate, timely, or appropriate care. Unless a surveyor understands exactly what should happen when a resident falls ill or has a change in status, he or she may find regulatory compliance despite poor care or noncompliance despite proper care.

Certainly, regulations should not duplicate basic medical and nursing practice guidance available elsewhere, but they should emphasize the principles of good practice and explain how to systematically identify whether facility staff are adhering to these principles. Regulations provide a framework for reviewing care, but have wrongly been turned into a standard of care.

Surveying: Good & Bad

Good surveyors do many things right. They review aspects of care and service, collect and analyze relevant information, recognize legitimate process deficits, explain appropriately what facility staff could or should have done differently, and relate fairly how faulty practices may have influenced resident/patient results.

Effective survey agencies formulate deficiency statements properly and give facility staff enough information to identify and address root causes of problems. Facility staff and leadership adjust their performance and fix process problems.

Not all surveyors or survey agencies are good, however. Following is an overview of the key shortcomings, which will be described in more detail with suggestions for change in upcoming articles in this series.

Insufficient feedback. Feedback about our current or past performance heavily influences our future performance. We need precise, accurate guidance on how and what to change, and we do best when we get such information soon after we do something. Therefore, somehow, we must tie survey results to individual performance.

But the survey process as it now stands is not designed to give facility staff sufficient feedback to help them correct performance problems. Findings often are general, or refer to events that happened in the past. Surveyors use Tag numbers to describe why certain cases or situations did not comply with regulatory requirements--but not how things should have been different.

For example, a nursing home may receive a citation for failing to meet the nutritional needs of residents who lost weight. The citation might state that the facility did not weigh two residents regularly after treatment or adjust the care plan quickly enough.

But it may not pinpoint the reasons why those processes failed or what specific individuals didn't do right. Did some staff not know what to do when someone loses weight, or did they think that reweighing was not a priority, or did physicians not help the facility identify reversible causes of the weight loss? Because surveyors and state survey agencies cannot give detailed individual feedback, facility management and staff cannot rely on the survey as their main source of information to improve care. But many do.

Inaccurate or irrelevant findings. Improving performance requires accurate feedback, based on proper interpretations. A surveyor's conclusions about facility performance depend on comparing what happened to what should have happened.

But that does not always happen.

Because the OBRA guidelines and protocols are incomplete, surveyors may draw wrong conclusions and/or give inappropriate advice if they:

• Don't understand the reasons for an eventual outcome
• Misinterpret whether care and practice are proper
• Claim that proper practice is not consistent with regulatory requirements
• Consider appropriate care to be inappropriate because an outcome was negative
• Don't recognize inappropriate care or overlook it because an outcome was positive
• Don't properly explain to facility staff why care was or was not appropriate.

If a person has intravascular volume depletion despite total body fluid overload, for example, surveyors may misinterpret the lab results and mistakenly conclude that staff's inadequate care caused dehydration. Or, surveyors may miss situations where the facility staff improperly identified the real cause of dehydration. Thus, staff may not fix problems related to cause identification or generalize from the mistakes in one case to future practice or dissimilar cases.

Unplanned weight loss and preventable falls may occur because physicians don't review or adjust high-risk medications, or because a medical director doesn't hold physicians accountable for responding to concerns about high medication dosages. But instead of dealing with these issues, facility staff may respond to survey citations by starting a weight team and a falls committee.

Poor advice from surveyors tends to reinforce outmoded practices. Often facility staff will do what surveyors say or approve, even if authoritative sources say otherwise or the medical director identifies more appropriate practices.

For instance, the regulations (483.20(k)(2) Probes) ask surveyors: "Do the dietitian and the speech therapist determine, for example, the optimum textures and consistency for the resident's food that provide both a nutritionally adequate diet and effectively use oropharyngeal capabilities of the resident?"

But they don't state that coughing and choking during meals may be caused by conditions that require evaluation by doctors and nurses before a dietitian or speech therapist is brought in.

The result? Many nursing homes have shifted the primary responsibility for diagnosing and managing anyone with an eating problem to dietitians and speech therapists. Surveyors may reinforce this practice by focusing more on which staff member or consultant was involved in trying to solve the problem than on how the problem was diagnosed and whether treatment decisions were justified. They may require that a dietitian become more involved when the real issue is that a physician failed to properly adjust medications (e.g., diuretics and ACE inhibitors) that can exacerbate dehydration. Thus, residents may receive unnecessary diet restrictions and doctors and nurses may miss important causes of eating problems.

Inconsistent following of procedures. Surveyors may not follow procedures for collecting and evaluating information, drawing conclusions, etc.--although this may be because the State Operations Manual gives only general procedural advice in a scattered way.

CMS trains state survey agency training coordinators, who then train state surveyors--but only sporadically, and to different degrees. Sometimes, federal "look-behind" surveyors accompany or follow state surveyors.

But training and oversight focus mostly on how surveyors should use the regulations to find and write deficiencies, not on whether surveyors used the proper methods defined by the SOM to collect and analyze that information. For example, a surveyor is supposed to investigate further to confirm a preliminary finding of possible noncompliance with regulations. But surveyors often draw conclusions based on preliminary information and then overlook subsequent evidence that may contradict the initial suspicion.

Individual surveyors may receive little feedback about their performance in such areas. Survey agency supervisors may not identify or follow up on procedural mistakes made during surveys, perhaps because of time constraints, limited staff expertise, internal management problems, or the belief that facility management or staff are just trying to blame the surveyors for the care problems.

Excessive or irrelevant sanctions. Performance is influenced best when consequences (e.g., sanctions such as directed plans of correction or monetary penalties) are pertinent to the problem. But the OBRA enforcement provisions provide a confusing tangle of penalties based on some questionable underlying assumptions, and use outcomes inconsistently as a barometer for performance.

A single negative outcome on a re-survey may lead to the conclusion that a facility "failed to correct" its problems, resulting in major penalties. But definitive action takes time, and changes rarely can be implemented immediately after a survey. However, facility staff fear major penalties for admitting mistakes and surveyors fear criticism from CMS regional offices for not acting quickly. Thus, the focus may shift from pinpointing root causes to either denying problems or implementing a "quick fix."

It seems that the survey process is still being guided by individuals in government who believe that nursing homes should be punished for negative outcomes regardless of whether the care provided actually caused the negative outcome (the "someone needs to pay for this" attitude). Thus, severe sanctions may result from unintentional omissions or negative outcomes that may not be anyone's fault--and seriously faulty practices may escape penalties because the outcomes luckily happen to be acceptable. All of this impedes real problem solving.

Misguided response by facility owners and managers. Survey sanctions are directed mainly at owners and licensees. Facility owners and managers often obsess about regulatory compliance because of their own misconceptions about how to improve performance. They may not recognize that excessive concern about regulatory compliance cannot produce competent care. So, they force staff and practitioners to focus on "the survey" when providing care and they use survey results to review their staff's performance. A common but often misguided response to survey results is to fire the administrator, DON, or other key staff. Such actions may only perpetuate care failures and drive competent people away.

Conclusions

Certainly, nursing home staff and practitioners should strive to improve care. The OBRA regulations and survey process have been touted as a major means to that end. Many influential people believe that the regulations and surveys need only minor adjustments. They assert that the solution to better care is finding more deficiencies during surveys and imposing more and tougher penalties for noncompliance. But that limited approach is dead wrong.

Let's consider the results. Many state survey agency staff tell me that--after more than a decade of OBRA--only a minority of nursing homes give uniformly excellent care and 10% to 50% still have major care and performance issues. Often, a resident will receive both good and inadequate care simultaneously. For example, the staff may provide good skin care but fail to recognize and treat a correctable cause of functional decline.

Are such results significantly better than what we might expect by chance, without the current complex, costly regulatory system? Probably not. The regulations may have broadened awareness of some major care issues and the survey process has undoubtedly prodded some nursing home staff to fix their problems.

But beyond that, it seems that providers who know what they are doing generally don't need regulatory guidance and those who truly need regulatory guidance often do not know what they are doing, despite the regulations.

We can and must do better.

Steven Levenson, MD, CMD, is a Multi-Facility Medical Director in Baltimore, MD, and Chair of Caring's Editorial Board. He is author of numerous books and journal articles that address quality of care, care processes, nursing home policies and procedures, and regulatory oversight of long-term care facilities. For more information, see www.ltcinfo.net.

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