Nursing Homes Under Fire for Lack of Sprinklers

CMS has indicated that as many as 385 nursing homes in 39 states have failed to meet requirements to install sprinkler systems to combat potentially deadly fires in those facilities. According to the Associated Press, the nursing homes with the non-compliant sprinkler systems house 52,000 patients who are being put at unnecessary risk of deadly nursing home fires.


The lack of sprinklers poses a compliance problem for some nursing homes because of a deadline set by CMS requiring all nursing homes to be “sprinklered” by August 13, 2013. CMS warned that it would not grant extensions for the timeline that was officially set out in a 2008 final rule (73 FR 47075). According to the Associated Press, CMS has indicated that compliance has reached 97 percent, with 3 percent of facilities falling out of compliance on the sprinkler mandate. CMS reportedly told the Associated Press that “CMS and states are actively engaging with the rest of the facilities to verify their compliance with this regulation and will take appropriate actions for noncompliance to ensure the safety of residents.”

Slow Compliance

The path to sprinklers in nursing homes has been a slow one. In 2003, attention was brought to the issue when two nursing homes, without sprinkler systems, burned and left 31 people killed. One of the nursing homes that caught fire was the Greenwood Nursing Home in Hartford, Connecticut and the other facility was the NHC Healthcare Center in Nashville, Tennessee.  Although at the time of those fires, newly constructed facilities were required to have sprinkler systems, older facilities were not required to be retrofitted. In 2008, CMS issued the requirement that all nursing homes were to install sprinklers and gave the lengthy five year deadline for compliance. Despite the slow start, the numbers have improved from last December when, according to the Associated Press, CMS reported that 714 homes lacked adequate sprinkler systems.


One reason for the lack of compliance is the cost associated with the installation of adequate sprinklers. For example, in 2003, following the Greenwood fire, the estimated cost of installing sprinklers ranged from $270,000 to $363,000 depending on whether a system needed to be upgraded or no system was in place at all.

CMS Action

According to the Associated Press, CMS indicated that it could resolve continued non-compliance with the sprinkler requirement by denying payment and terminating a facility’s provider agreement. The agency did state that some providers may receive extensions due to extenuating circumstances if, for example, nursing homes are undergoing major renovations. Regardless of the action CMS takes to enforce the sprinkler requirement, compliance is important. The Government Accountability Office indicated in a 2004 report that no facility fully equipped with sprinklers has ever had a multiple casualty fire. Simply put, sprinklers save lives. In the words of Tom Burke, a spokesman for the American Health Care Association, the value of sprinklers as a “safety and patient safety feature is undisputed.

Ebola Preparedness Guidelines May Have Come Too Late

In an urgent effort to warn hospital health care personnel about recognizing symptoms and patterns of the Ebola virus, CMS issued a survey and certification memorandum articulating the Centers for Disease Prevention and Control’s (CDC) health advisory alert to state survey agency directors. The CDC’s October 2, 2014, alert came days after a Liberian man died from the virus in Dallas, Texas, exposing health care workers and family members to the deadly disease.

The CDC outlined the following evaluative and preventive guidelines for hospitals and critical access hospitals (CAHs):

  • Increased awareness of those traveling from West Africa within a 21-day period for anyone with a fever or other Ebola symptoms;
  • Patient isolation into a private room with bathroom for anyone who has traveled to or from West Africa and exhibits Ebola symptoms;
  • Immediate notification to local and state health departments;
  • Use of appropriate personal protective equipment (PPE), including gowns, face mask, eye protection, and gloves;
  • Vigilant monitoring for Ebola infection symptoms such as fever greater than 100.4°F (38°C), severe headache, muscle pain, vomiting, diarrhea, abdominal pain, or unexplained hemorrhaging;
  • Knowledge of Ebola’s incubation period (typically 8 to 10 days, but can range from 2 to 21 days); and
  • Knowledge of patterns of exposure that are either high-risk (needle sticks, mucous membrane contact with blood or body fluids, and direct skin contact with, or exposure to blood or body fluids of, an infected patient) or low-risk (brief direct contact such as hand shaking or being around infected patients who have been in the care area for a prolonged period of time without wearing proper PPE).

CMS has been urging hospitals and CAHs to immediately adopt these procedures, particularly in their emergency and other outpatient departments. Following protocol is key, since two hospital care givers who treated the Liberian man, Thomas Eric Duncan, have contracted Ebola. One of the health care workers was a 26-year-old nurse who provided care that included invasive dialysis procedures and use of a ventilator during Duncan’s hospital stay.

The protocols, however, may not be enough. CNN reported that Texas Health Presbyterian Hospital Dallas nurses have complained that guidance continually changed, and there were no up-to-date protocols available when Duncan was at the hospital. The nurses claim that Duncan was left in an open area, that their PPE exposed their necks, and there was no mandate for them to attend training. Further, the second 29-year-old nurse flew the next day between Cleveland and Texas after treating Duncan.

Regarding the infected nurse, the Washington Post reported on October 14, 2014, that CDC director Tom Frieden affirmed that a “breach in protocol resulted in this infection.”

The CMS memorandum provided a link to an Ebola detection checklist, but it is not mandatory or federally regulated. The checklist covers review of triage procedures, post-screening criteria, adequate training, and preparation of isolation, quarantine, and exposure reports. CMS also cited the CDC’s website for updates to affected countries, but again, the memorandum was issued days after Duncan’s visit.

The CDC and CMS will need to move faster as any changes in guidance arise. Whether current protocols will contain the Ebola virus remains to be seen, as it is likely more health care workers at the Dallas hospital will contract the disease.



Kusserow’s Corner: Extendicare Health DOJ Settlement of $38 Million and Five-Year Quality of Care CIA with the OIG

The Department of Justice (DOJ) announced the largest “failure of care” settlement with a chain-wide skilled nursing facility (SNF) in the Department’s history. Extendicare Health Services, Inc. (Extendicare) and its subsidiary ProStep entered into a settlement with the DOJ and agreed to pay $38 million to resolve allegations that they billed Medicare and Medicaid for materially substandard nursing services that were so deficient that they were effectively worthless, and billed Medicare for medically unreasonable and unnecessary rehabilitation therapy services in 33 of its skilled nursing homes in eight states (Indiana, Kentucky, Michigan, Minnesota, Ohio, Pennsylvania, Washington, and Wisconsin). Overall, the chain provides services at 146 facilities in 11 states.

Two Relators brought separate cases against Extendicare; they will receive more than $2 million as their share of the recovery. [See United States ex rel. Lovvorn v. EHSI, et. al. C.A. 10-1580 (E.D. Pa) and United States ex rel. Gallick et al., v. EHSI et al., C.A. 2:13cv-092 (S.D. Ohio)].

Extendicare also will enter into a five-year chain-wide Quality of Care Corporate Integrity Agreement with the HHS Office of Inspector General (OIG) under which they must have a comprehensive compliance program with systems to address the quality of resident care. The compliance program must include, among other things, corporate-level committees to address compliance and quality, including a committee to assess staffing, and an internal audit program to assess the quality of care provided to residents. Extendicare must retain an independent monitor, selected by the OIG, who will regularly visit Extendicare’s facilities and report to the OIG, along with an Independent Review Organization (IRO) that will perform annual reviews of claims to Medicare.

This case is particularly significant in the fact that the fraud charges resolved by the settlement were for billing for sub-standard care. It helps set precedents for taking actions against other providers who provide services that did not measure up to quality of care standards. The DOJ allegations focused on the fact that Medicare and Medicaid were billed for materially substandard nursing services. They alleged that the services were so deficient that they were effectively worthless, and that Extendicare billed Medicare for medically unreasonable and unnecessary rehabilitation therapy services, meaning the claims were in fact false and fraudulent.

Richard P. Kusserow served as DHHS Inspector General for 11 years. He currently is CEO of Strategic Management Services, LLC (SM), a firm that has assisted more than 3,000 organizations and entities with compliance related matters. The SM sister company, CRC, provides a wide range of compliance tools including sanction-screening.

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Copyright © 2014 Strategic Management Services, LLC. Published with permission.

SNFs to Report More Data to Nursing Home Compare

A number of enhancements and additional reporting requirements to the Five-Star Quality Rating System for skilled nursing facilities (SNFs) have been announced by CMS. The enhancements have to do with better collection of data regarding: (1) SNF staffing; (2) the use of antipsychotic medications; (3) state maintenance of quality reporting websites; and (4) a new scoring methodology for determining the number of stars a SNF receives on the Five-Star Quality Rating System. The majority of the enhancements are in response to requirements in the Patient Protection and Affordable Care Act (ACA) (P.L. 111-148) or the recently enacted Improving Medicare Post-Acute Care Transformation Act (IMPACT) of 2014, which was signed into law on October 6, 2014 (see New law to make an ‘IMPACT’ on quality of post-acute care, October 6, 2014). These changes were announced in conjunction with the release of a Proposed rule making changes to the conditions of participation for home health agencies (HHAs).

CMS launched the Nursing Home Compare Website in 2002 and the Five-Star Quality Rating System was added in 2008. These tools were designed to provide information to individuals and family members about the quality of care provided at SNFs. In 2011, section 6103 of the ACA required additional information to be added to the Nursing Home Compare Website and the Five-Star Quality Rating System.

Staffing Measurements

The ACA required CMS to collect more data on staffing at SNFs. To meet this requirement, CMS is announcing that it will implement a quarterly electronic reporting system that is connected to payroll systems to verify staffing information. This new system, which was funded by IMPACT, will increase accuracy and timeliness of staffing data, said CMS. New quality measures based on staff turnover, retention, types of staffing and levels of different types of staffing will be able to be developed from this data. In addition, beginning in 2015, focused surveys will be administered to randomly selected SNFs to verify the staffing information and reported quality measures that are contained in the Five-Star Quality Rating System.

Antipsychotic Quality Measure

Beginning in January 2015, SNFs will have to report on the extent to which antipsychotic medications are being administered to residents. This is an enhancement to the posting of the use of antipsychotic medications in two instances as required in a July of 2012 enhancement. In addition, CMS plans to add quality measures that are derived from claims data that document rehospitalization and community discharge rates.

Revised Scoring Method

The methodology used to calculate each SNF’s quality measure rating, which is used to calculate the Five-Star Quality Rating on the Nursing Home Compare Website, will be revised during 2015. CMS is also strengthening an ACA requirement that requires states to maintain a user-friendly website for SNF quality data and survey results. In addition CMS plans on developing ways to help states complete inspections of nursing homes in a more timely and accurate manner so more of that data is used in the Five-Star Quality Rating System.

“Nursing homes are working to improve their quality, and we are improving how we measure that quality,” said Patrick Conway, M.D., deputy administrator for innovation and quality, and CMS’ chief medical officer. “We believe the improvements we are making to the Five Star system will add confidence that the reported improvements are genuine, are sustained, and are benefiting residents,” said Conway.