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/

2. 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

3. 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.

7. 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

8. 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.

10. 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

11. 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.

12. 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.

13. 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.

14. 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.

15. 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.

16. Examples of State Special Projects • Indiana: An Alzheimer’s and dementia care training program. • Louisianaand 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.

17. 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.

18. Examples of State Special Projects • North Carolina: Five programs forquality 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.

19. 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.

20. 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.

21. 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.

22. 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.

23. 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.

24. 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.

25. 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.”

26. 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.

27. 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 state’s evaluation of the program/project

28. 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.

29. 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 thatmeet the study's recommendations and recommendations of CMP stakeholders in NY.

30. 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.

32. 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).

33. 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).

34. To Learn More & Participate • The full study, along with resource materials and news on CMPs, can be found on LTCCC’s homepage, www.ltccc.org, or by going directly to our “nursinghome411” website’s CMP page: www.nursinghome411.org/CMPProject/.