Confusion Reigns.

In two recently completed studies the Office of Inspector General (OIG) concluded that (drumroll, please!) the Minimum Data Set (MDS) is confusing.

The OIG is to be commended on drawing this conclusion. At the risk of having this comment dismissed as sarcasm, allow it to suffice that, speaking on behalf of my profession, this is one issue upon which the industry and the OIG can readily agree. It is refreshing to see that some observations made by the OIG are critical of the tools government uses to regulate and reimburse the profession. It is troubling, however, that a clear bias toward innuendo by the OIG remains.

The OIG is mandated by Public Law 95-452 "to protect the integrity of the Department of Health and Human Services programs as well as the health and welfare of beneficiaries served by them." Hopefully "objective" conclusions, such as those contained within the two OIG studies and their corresponding reports--Nursing Home Resident Assessment: Quality of Care and Nursing Home Resident Assessment: Resource Utilization Groups--will signal a unification of those--regulators and providers--with a vested interest in the well-being of the beneficiaries they serve. It is time that providers and regulators become a team in providing needed services and creating the tools necessary to review and reimburse for them.

In case you missed it, the following was posted on the Web site maintained by the OIG and the Office of Evaluation and Inspections (OEI) found at www.hhs.gov/oig/oei/whatsnew.html (a good one for your bookmarks):

Two related inspection reports have been released on the subject of nursing home resident assessments. The first report evaluates the current state of practice of implementing nursing home resident assessments. We found that generally nursing homes follow a systematic process when performing them. However, we also found that 17 percent of the fields on the assessment instrument contain information different from that found in the rest of the medical record. Furthermore, 14 percent of specific assessment protocols which should have been triggered by the overall assessment were not triggered, and one-quarter of the protocols are not addressed in the plans of care. However, for those residents who have plans of care, the plans are being followed.

It would appear that the profession is trying to do the right thing with the wrong tools. The result: In addition to taking 14,000 registered nurses away from direct resident care functions, the profession is spending more than half a billion dollars a year employing people for the sole purpose of attempting to implement and understand PPS. How so? The study concluded that "almost all facilities, 81 percent, have a full-time registered nurse in the MDS coordinator position." Considering there are roughly 17,000 long-term care facilities in the United States and that a seasoned registered nurse's salary can easily approach $50,000 per year, the resulting salary cost alone on MDS coordination approximates $620 million annually. (Yet we are still confused.)

Setting aside for a moment arguments regarding the adequacy of PPS reimbursement, half a billion dollars is an additional cost borne by the profession above and beyond direct care obligations, largely in an effort simply to be paid for services provided. Now let's add in paid time off and other benefits for these MDS coordinators, using a "25% added" factor. The result is $775 million annually, or 7% of the $10.4 billion Medicare paid to nursing homes in 1998. (This 1998 expenditure is often cited as a glaring justification for reimbursement reform, as compared to the $1.7 billion paid in 1990 [www.hcfa.gov/stats/nhe-oact/tables].) Considering that the profession serves 1.5 million Americans, this works out to $517 per resident per year. Compare this to the average amount a Medicaid resident is permitted to keep as his or her "Personal Resource Amount" annually (e.g., $504 in Delaware). On average the profession spends more money per year on every resident to implement the Resident Assessment Instrument (RAI ) than the residents are allowed to spend on themselves.

Please do not misunderstand. I am a believer in the need for and benefits of the RAI. The following, excerpted directly from the RUG report, tells us why the RAI is necessary: "In 1986 the Institute of Medicine conducted a study on nursing home regulations and reported prevalent problems regarding the quality of care for nursing home residents and the need for stronger Federal regulations. In 1987, the GAO reported that over one-third of nursing homes were operating under the Federal minimum standards. This report, along with widespread concern regarding nursing home conditions, led Congress to pass the Omnibus Budget Reconciliation Act (OBRA 1987). As apart of OBRA 1987, Congress passed the comprehensive Nursing Home Reform Act (P.L.100-203), expanding requirements that nursing homes have to comply with prior to Medicare or Medicaid Certification" and mandating the use of an RAT that has evolved, to date, into the current MDS version 2.0. I and many in the industry believe that this action was largely appro priate in 1987, and resulted in significant improvement within the profession. I also recognize, however, that in the wrong hands, good tools can become instruments of destruction.

That brings us to the second of the two studies, Nursing Home Resident Assessment: Resource Utilization Groups. The report states: "For 46 per cent of the residents the nursing home coded the resident in a RUG that was higher than our reviewer's. For the remaining 30 per cent, the nursing home coded the residents in a RUG that was lower than our reviewer's. We tested the potential effect on reimbursement; it was not statistically significant." A legitimate and prudent observation. At the risk of being labeled an alarmist, though, I must say that I am troubled by a section of this report that states, "The fact that coding differences are both higher and lower indicates confusion or difficulties in implementing the MDS rather than an effort to 'upcode' the RUGs to increase Medicare reimbursement. However, such a practice cannot be ruled out and our study demonstrates how vulnerable Medicare is to such a practice" (emphasis added).

Why did the Office of Inspector General choose to voice its concerns in this way? Why not simply state that nursing homes are attempting to systematically complete the MDS and implement the plans of care, but are having difficulty administering an inherently complex process? Why assume that the profession is attempting to misrepresent care levels to seek more favorable reimbursement?

I would submit that, from the OIG's standpoint, the answer is this: One of its studies addresses quality, the other, money. When money is involved, the regulators choose to interpret "confusion" as "fraud," "neglect" or "potential abuse." And I would respond this way: If a clear upcoding trend is detected in the RUG report and it is not supported by the RAI as described in the quality report, then call a spade a spade: That's fraud! But when there is inconsistency and confusion under both tests, then again call a spade a spade: It's confusion.

In the case of confusion, you educate; in the case of fraud, you discipline; on issues in between, you negotiate. If you commit to all three courses with a similar vigor, zeal and sense of urgency, the end result is simple: no confusion.

Let us assume the intent to do good deeds rather than bad. Let us recognize confusion and bad outcomes innocently (but not neglectfully) occurring and address them through performance improvement; peer review; best practices (such as using comparative information from Facility Quality Indicator Profiles); and encouraging outcome-based Plans of Correction for objective survey deficiencies. And, when the occasion calls for it, let us write articles defending the virtue of our profession against any misperceptions that might unreasonably threaten the profession or its public esteem.

It would be helpful if all of us could recognize the nursing home profession as equal partners with, not in opposition to, the QIG in its noble effort "to protect the integrity of the Department of Health and Human Services programs as well as the health and welfare of beneficiaries served by them." On this there should be no confusion.

Lon Kieffer, BSN, MBA, NHA, is the president of the Delaware Board of Nursing Home Examiners. For further information, write Ion Kieffer, 22 Rodney Street, Seaford, DE 19973; phone [phone]; or e-mail [e-mail].