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Does the Regulatory Environment Need Change?

Published October 15, 2007 3:44 PM by Brian Garavaglia
Since the Institute of Medicines' 1986 hallmark study that provoked major implementations and changes in nursing home regulations, many have come to think that a revolutionary paradigm shift has taken place.  The celebrated OBRA regulations, stiffening the regulatory environment, have come to be the benchmark for clinical and operations management within the nursing home environment.  Has it improved nursing home care?  Some have speculated but the consensus has been yes, it has led to an improvement as compared with pre-OBRA nursing home environments.  Is it a panacea for nursing home care?  Definitely not, yet it appears that the long-term care industry has become complacent, failing to further innovate and instead favor periodic updates of the current system. Although there are a number of problems that exist in the current system I will just mention a few at this time. 

The first problem that has continued to exist is that the relationship between the surveyors and those that are surveyed is filled with an inherent tension, and at time, contentiousness.  It is left up to the surveyors to cite violations and nursing home staff to react and defend their territory.  It is very clear from years of sociological and social psychological research that setting up in-groups and out-groups, such as surveyed and surveyor, is all that is often needed to create tension and foment potential inter-group problems.  Furthermore, since surveys are conducted by state or federal governmental agencies, the unequal distribution of power and status foster further difficulties.  In an industry where the goals of both groups should be to contribute ideas, knowledge, and insight on how to improve the care that is provided to older adults, the interaction is often based on a "we cite and you correct" mentality.

Another problem that should be mentioned is although the regulations that are enforced appear to be clear enforcement is far from objective.  Anyone who has been involved in long-term care understands this quite well.  The disposition of surveyors, staff, and the historical citation history of any facility often set expectations very quickly about the nursing home environment, and at times even before entering the nursing facility.  Upon examining and issuing the mandatory OSCAR 3 and 4's, the expectations about the facility reputation are frequently set, which in turn come to determine the survey and the facility's level of success.

Finally, even though the goal of the regulatory cycle is to enhance care, civil monetary penalties (CMP's) have become an increasingly popular enforcement mechanism.  Quite plainly, CMP's are punishments for failing to be in substantial compliance on more severe issues.  Do not misinterpret this as meaning that substantial noncompliance should not be addressed aggressively, but CMP's frequently act as double punitive measures, not only taking money away from the facility, but also the residents that are found in the facility.  Since most nursing care facilities are already financially strapped, taking five, ten, or twenty thousand dollars away from a facility not only penalizes the facility but the residents as well.  The logic of a CMP being placed on a facility, taking money and resources away from the facility and its residents, and saying that it is being used to enhance resident lives, fails logical argumentation.        

Now that you have heard my views, please share your views.

posted by Brian Garavaglia


Thank you for pointing out very clearly three flaws in the survey process. The lack of objectivity is a significant problem for facilities that have the misfortune of being on the "poor performer list". A facility is placed on the list by what happened in surveys two to three years prior. Usually the folks who got it onto the list have left a long time ago. The experience of working with such a facility is difficult because they are required to perform at a much higher standard than normal to be deemed in compliance. I believe it is because of the bias you speak of even before the survey team enter the front door.

I consult in different states and it is clear that the regulations are open to a wide variety of interpretations which does not faciltate the survey process. One observation from a survey warrior who has at least one survey a month in my different facilities, it has been a long time since the process was about improving care for residents.

Darryl, Nurse Consultant December 1, 2007 4:50 PM

I agree with the commentary that being constantly ready for the survey process is important and necessary.  There is no argument here.  However, the first statement that is made is that "surveyors are not suppose to penallize the surveyed place."  As an oversight body they definitely are suppose to cite and penalize and there is inherently nothing wrong with this.  Facilities that are out of compliance should be cited, penalized in some fashion, and be made to correct their errors.  However , the issue in the blog was whether the regulatory environment needs to be changed since at tmes nursing facilities incur penalities that do not necessarily target the nursing facility, but also adversely influences the lives of residents.  This happens any time when a CMP is issued, working as a double penalty against the nursing home and also penalizing the residents when money is taken away that could be applied toward care.  Also, as you stated, it is a political system that we do have to live with at this time.  However, that does not mean as a system it cannot be improved.

Brian Garavaglia November 20, 2007 10:23 PM

Surveyors are not supposed to penalize the surveyed place. It is a two way give and take. They get information about how well your facility meet the regulations of state and federal, how well you follow the policy and procedures of your facility. This is a gauge for patient safety. quality of care and time to improve for better services. I've been with different surveyors and the first experience was really nerve wrecking because of my unclear expectations from the surveyor, I was new to the place and obviously I was  hired to fix the huge problem. The next year was a breeze because I know by heart that I made sure we are ready 3 months before the survey comes. The bottom line is always be prepared for the survey. How? Daily nursing and other services is like a survey, that means always be efficient and diligent no matter what. Staff education and preparedness is number one. As the DON know your staff and patients as much as possible and have a daily to do list 6 months before the next survey.  I agree with you that our mentality should be they are paid to help us. Easier said than done but there are politics everywhere so just be helpful to them and if you do not agree with the surveyor you can talk to their supervisor. Of course you can ask for their credentials and experience as ice breaker or to gauge them what they will be looking for as to what is their specialty.

jeanie , ltc - don, adhs November 19, 2007 5:25 PM
montclair NJ

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About this Blog

    Brian Garavaglia, PhD
    Occupation: Long-term care administrator
    Setting: Sterling Heights, Mich.
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