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

Cynthia Rudder, Ph.D.

Richard J. Mollot, Esq.

Long Term Care Community Coalition

Funded by the Commonwealth Fund, Grant No. 20050012, 2005

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PROJECT STAFFPROJECT STAFF

LTCCC – CYNTHIA RUDDER AND RICHARD MOLLOT

UCSF – CHARLENE HARRINGTON AND THEO TSOUKALAS

NCCNHR – ALICE HEDT AND GAIL MACINNES

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Project GoalProject Goal

To encourage states to appropriately levy and use fines collected from nursing home violations to support innovative, resident centered practices in nursing homes

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Federal RequirementsFederal 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 collected from violations of federal 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 ProjectNeed for the ProjectLack 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

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Civil Money Penalties—BackgroundCivil Money Penalties—BackgroundPrevious research on CMPs/fines was limited

– States spent less CMP dollars than they received (Edelman, 1999);

– A few programs were funded with CMP dollars (Hawes, 2002; White, et al. 2003);

– Most CMPs/fines [61%] were levied under state regulations (Harrington, et al. 2004)

Previous research did not indicate amount of CMPs/fines collected and did not address what states did with their funds from CMP/fines

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Specific ObjectivesSpecific ObjectivesTo 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

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Study Methodology Study Methodology National telephone survey of state agency officials

to collect information on CMPs and state fines and the use of state CMP funds (LTCCC and UCSF)

Telephone survey of stakeholders in 5-7 states with special state programs (LTCCC and UCSF)

Telephone and mailed survey of ombudsman & consumer advocates about the awareness of fines and their potential use (NCCNHR)

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Major ContributionMajor ContributionTo give states ideas, methods, and

consumer- backed support for taking action to ensure that there is appropriate levying and creative use of funds from NH CMPs/fines that will stimulate and support the spread of “culture change” through-out the nation’s nursing homes.

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National Advisory CommitteeNational Advisory Committee

–Advise on the study design & help with access to study respondents

–Review project findings and best practice criteria

–Advise on guidelines for state use of funds from CMPs/fines

–Review dissemination plan for findings

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National Advisory CommitteeNational Advisory Committee

–Carol Benner, NJ L&C program–Rose Marie Fagan, Pioneer Network–Donna Folkemer, NCSL–Alice Hedt, NCCNHR–Barbara Manard, AAHSA–Sally Petrone, NASOP–Brian Purtell, Wisc Health Care Assoc–Jackie Woodruff, NALLTC Ombudsman

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Data AnalysisData AnalysisDescriptive analysis of data from national

telephone survey of state agency officialsQualitative analysis from interviews with

key stakeholders in states with special programs

Descriptive analysis of data from the survey of ombudsmen and consumer advocates regarding consumer awareness and input into expenditures of CMP funds.

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ProductsProductsArticle(s) in a peer review journalA paper describing 5-7 case studiesA research brief written for consumers Guidelines for CMS - innovative state

practices An action plan detailing a set of

recommendationsGuidelines for state officials for innovative

uses of CMP funds

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Survey of State Use of Civil Survey of State Use of Civil Monetary Penalties and State Monetary Penalties and State Fines and Use of Funds for Fines and Use of Funds for

Special Programs Special Programs

Charlene HarringtonTheo Tsoukalas

University of California San FranciscoCynthia Rudder

Long Term Care Community CoalitionFunded by the Commonwealth Fund, Grant No.

20050012, 2005

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Specific UCSF Study AimsSpecific UCSF Study Aims

1. Determine the extent to which states collect CMP/fines and to identify and describe policy barriers and how states use CMPs/fines that are collected

2. Identify and describe 6 states that use CMP/fines for special projects

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Study SampleStudy Sample

All state Licensing & Certification agency directors– 33 states responded to the survey - 65%– 10 states provided data under FOIA– 8 states had other information available– Total of 51 states and DC with some data

Six states were selected for case studies on uses of funds for special projects from CMPs/fines– 25 stakeholders were interviewed

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Study Methodology – Aim IStudy Methodology – Aim I– Sent request to state L&C to participate in the study– Emailed and mailed surveys to collect statistics on

CMPs/fines Number and amount CMPs issued & collected Whether a CMP account is established and the total

amount What CMP/fines were spent on

– Conducted structured telephone interviews to collect qualitative data on the:

Process of issuing and collecting CMPs/fines and barriers Use of CMPs/fines and process of using funds Effectiveness of intermediate sanctions State agency resources Policy recommendations

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Other Data Sources Other Data Sources

Because the response rate from state L&C programs was poor, we also collected additional statistical information from– Freedom of Information Act Requests on

declining states FOIA Request Return Rate: 10 states of 12 FOIA’d

(83% return rate) Web searches of state documents and reports

– Other published information

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Study Methodology – Aim 2 Study Methodology – Aim 2

Using data from states, we identified 6 states that used funds from CMPs/fines for resident projects

Conducted case studies of 6 state programs (KS, MA, MD, MI, NJ, NC)

–using telephone interviews of 25 stakeholders –state officials, state ombudsman, state

provider associations, and consumer advocacy groups

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Data AnalysisData Analysis

Descriptive analysis of data from national telephone survey of state agency officials

Qualitative analysis from interviews with state agency officials

Qualitative analysis of stakeholder interview data from selected states that used funds for special projects

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Preliminary Findings – CMPsPreliminary Findings – CMPs– Of 51 states with data on CMPs*:

48 issue federal CMPs; 3 states do not (AK, SD, WY) 50 issue state deficiencies (1 does not); 36 states issue

state fines (8 do not)

– In 2004 22 states recommended 858 federal CMPs for $9.0 million 17 states collected 443 federal CMPs for $5.6 million 6 states issued and collected 22 CMPs for $458,137 for

Medicaid-only facilities 11 states issued 1,527 state fines for $7.0 million and

collected 1,263 state fines for $2.9 million

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Preliminary Findings – Preliminary Findings – Fund AccountsFund Accounts

– Of 49 states: 36 states report having funds in an account from

CMPs/fines (AZ, AR, CA, CO, FL, HI, ID, IL, IN, IA, KS, KY, LA, ME, MD, MA, MI, MN, MO, MS, NE, NV, NH, NJ, NC, ND, OH, OK, OR, PA, SC, TN, TX, VT, WV, WI)

1 state (NY) has new account but no funds yet7 states have a fund account but fund amount was

not reported (AL, DE, GA, NM, RI, VA, WA)5 states have no fund account (AK, CT, DC, SD,

WY)– 2 states unknown (MT, UT)

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Preliminary Findings – Preliminary Findings – Funds AvailableFunds Available

–36 states currently have $57,088,992 available in accounts from CMPs/fines

–Fund balances ranged from: $19,500 in HI to $8.3 million in CA

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Preliminary Findings – Preliminary Findings – Use of FundsUse of Funds

– 26 of the total 32 states reporting using funds, use funds for special projects

(AZ, DE, FL, IA, IL, IN, KS, KY, LA, ME, MD, MA, MI, MN, MO, MS, NJ, NC, OH, OK, OR, PA, SC, TN, TX, WI)

– 6 states use funds for receiverships, relocation and other licensing activities

(CA, CO, ID, VT, WA, WV)– (2 states use state fine funds for schools--NE, WI)– (2 states put state CMPs/fines in the general fund –

GA, NY)

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6 States Use of Funds 6 States Use of Funds for Special Projectsfor Special Projects

– Kansas – 1999-2004Funded 8 projects for a total of $346,000Projects ranged from $340 to $168,000 Funded AAA for relocation, Ombudsman training,

and a university research project

– Massachusetts – 2003-05Funded 43 programs for a total of $850,000About $22,000 per projectAlmost all went to nursing facilities for projects

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Use of FundsUse of Funds– Maryland – 2003-04

Funded 7 projects for a total of $830,000Projects averaged $119,000 eachFunded quality improvement and TA unit, NCCNHR

family councils, wellspring projects and pets-on-wheels for facilities, and a hospice network

– Michigan – 1997-04Funded 3 programs for a total of $5.2 millionFunded a special team for NH remediation and

closures (discontinued), a NH transition program, and NH dining room assistant program

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Use of FundsUse of Funds– New Jersey – 1997-2004

Funded 6 projects for a total of $589,000.Projects averaged $99,000 eachFunded quality improvement, Eden Alternative

grants, resident satisfaction survey

– North Carolina – 2003-2005Funded 5 programs for a total of $1.1 millionFunded quality improvement initiatives, a

university medication error study and, Eden alternative, Pioneer Network and other projects

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ConclusionsConclusionsCMPs/fines represent a substantial resource that

can be used for quality improvement projectsThere is wide variation among states in issuing,

collecting, & using CMPs/fines Slightly over half of the states reported using

CMPs/fines for projects to improve nursing home care

States’ use CMPs/fines show a wide variety of types of improvement projects but few projects have been evaluated for effectiveness

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NCCNHRNCCNHR

ALICE HEDT

GAIL MACINNES

Descriptive analysis of data from the survey of ombudsmen and consumer advocates regarding consumer awareness and input into expenditures of CMP funds.

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Preliminary Findings – Preliminary Findings – OmbudsmenOmbudsmen

– Ombudsman respondents were overwhelmingly aware of fines but many fewer know about how much is collected or how the funds are used.

– 27% of the state ombudsman respondents and 15% of local ombudsman respondents make CMP information available to the public

– A strong majority favor having the information made public

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Preliminary Findings – Ombudsmen Preliminary Findings – Ombudsmen (continued)(continued)

- Almost two thirds of state ombudsman respondents indicated that they are not involved in decisions about the use of CMP/fine funds in their states.

- Many ombudsman respondents shared ideas for the role ombudsmen could play in this process.

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Preliminary Findings – Preliminary Findings – Citizen Advocacy Groups (CAGs)Citizen Advocacy Groups (CAGs)

–All of the CAG respondents were familiar with state CMPs/fines, and most were familiar with federal CMPs.

–Very few knew the amounts of CMPs/fines levied or collected.

–27% of CAG respondents provide information to the public about CMPs. (ex. website, newsletters)

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Recommendations for Changes in Recommendations for Changes in Policies and PracticesPolicies and Practices

State agencies should share CMP/fine information with the public in at least the same way deficiency information is shared, and routinely share it with ombudsmen and advocates.

States should include ombudsmen and advocates in the decision making process on the use of funds and in the subsequent assessment of resulting programs and projects.

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Draft Project Guidelines for States Draft Project Guidelines for States on Use of Funds from CMPs/Fineson Use of Funds from CMPs/Fines

Procedures Make sure the part of the agency that levies the CMPs/fines

retains control and access over the funds so the projects/activities/programs proposed for funding will be evaluated properly.

Expend funds for projects/activities/programs that benefit nursing home residents (i.e., not general fund, school fund, etc.).

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

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Draft Guidelines for States on Use of Draft Guidelines for States on Use of Funds from CMPs/FinesFunds from CMPs/Fines

Procedures Con’d

Establish an open process and timeline for applications for funds for innovative projects and an objective review process for making decisions about projects.

Establish an evaluation process for all projects.

Allocate sufficient funds for projects/activities/programs so that they can make a substantial, lasting impact and potential widespread impact.

Broaden any statutes that restrict the use of these funds and do not allow the funds to be used for projects to improve quality.

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Draft Guidelines for States on Use of Draft Guidelines for States on Use of Funds from CMPs/FinesFunds from CMPs/Fines

Project Types

Authorize funds for innovative projects that go beyond regulatory requirements and ordinary budget items to improve the 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.”

Target consumer focused projects such as work with family councils, resident councils, etc.

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Draft Guidelines for States on Use of Draft Guidelines for States on Use of Funds from CMPs/FinesFunds from CMPs/Fines

Project Qualities

Allocate funds for projects that are practical, can be replicated and can be sustained or replicated after the funding has ended

Encourage projects to be jointly developed with academic organizations, consumers (or their representatives) and established experts

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Draft Project Guidelines for CMS on Draft Project Guidelines for CMS on Use of Funds from CMPs/FinesUse of Funds from CMPs/Fines

Collect information on the recommended and collected CMPs for federal CMPs and state fines by establishing clear procedures at the state and federal levels for data collection

– How many of each type are issued?– How much CMP funds are collected?

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Draft Guidelines for CMS on Use of Draft Guidelines for CMS on Use of Funds from CMPs/Fines Cont’dFunds from CMPs/Fines Cont’d

Develop and maintain a centralized database on the use of CMPs and fines by each state

– Is there a special account set up?– How much money is in the account on a quarterly basis?– What is the process for applying to use the funds?– How were the funds used?

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Draft Guidelines for CMS on Use of Draft Guidelines for CMS on Use of Funds from CMPs/Fines Cont’dFunds from CMPs/Fines Cont’d

Publicize collected information on recommended and collected CMPs/fines on an annual basis– Publicize the state use of CMPs and fines

Require states to follow draft guidelines above

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Dissemination StrategyDissemination Strategy A web-based “project status board” (NCCNHR) Advisory Committee to assist with dissemination and

action Survey instruments posted on the web Short project status updates in consumer newsletters An academic article in a peer-reviewed journal Mailings to participants of final products and action plan Presentations at national meetings Conference calls discussing the findings to citizen action

groups and ombudsmen (NCCNHR)