Political enforcement.

When HHS finally settled on the OBRA Survey and Enforcement Regulations in 1995, at least a few people in the nursing home field were relieved that the major disputes had been settled. Facility managers assumed they could count on government taking the long-term view of the survey process and its potential outcomes. Even HHS Secretary Shalala promised that the political system would give nursing homes breathing space to resolve their problems of life with OBRA. They didn't get much space after all.

Members of Congress and state officials quickly began questioning the quality of care in nursing homes, based on anecdotal complaints from constituents. Officials in some states began to posture; in Pennsylvania, for example, the state attorney general, a Democrat, proclaimed that the state health department had "failed miserably" in protecting nursing home residents from threats to health or safety. His proof: 36 of the 52 resident complaints received by the state health department from 1993 through 1997 "were investigated late." Three weeks later, the state's Republican secretary of health countered by announcing state procedures that he promised would be more aggressive than OBRA regulations.

In response to the growing political pressure, HCFA hired Abt Associates, the Washington-based consultant that designed and tested the OBRA survey procedures, to review the issue of improving nursing home care. Abt's survey of over 700 nursing home administrators, released July 21, disclosed mixed results. Although it indicated "fairly positive responses related to changes made in response to the new survey and enforcement systems," the report further emphasized that administrators perceived the survey process as "based on a general distrust of providers, emphasizing punishment rather than a collaborative effort toward the joint goal of quality care." A serious attempt by Abt Associates to compare outcomes before and after the 1995 Survey and Enforcement regulations generally confirmed these observations.

Abt also found that problem identification varies incredibly among the states. For example, five states failed to report any facilities for substandard care deficiencies during the past three years, while Florida routinely plans surprise inspections "intended to weed out facilities that habitually lapse below required standards of care."

In a press conference reviewing these issues, Secretary Shalala announced changes in enforcement procedures that were unrelated to Abt Associates' objective evaluation efforts. Using evidence from newspaper exposes and other mass media sources, HHS reported that "malnutrition has been and continues to be a serious problem for many nursing home residents," and that "the potential threat posed by hiring of nurse aides with violent, criminal histories may be a serious problem." HHS' proposed reforms went on to create a political environment that encouraged adoption of a quota system for states' reports on deficiencies. HHS argues that any state reporting all of facilities to be in compliance with OBRA standards cannot be performing its surveys correctly or fairly. And as for those with deficiencies, nursing homes found guilty of a second offense will face sanctions without a grace period to allow them to correct problems. Inspection times for repeat offenders will be staggered, and include surprise visits on weekend and evenings. In addition, rather than imposing civil penalties for the number of days that a facility is out of compliance with regulations, the new procedures require states to impose a separate penalty for each infraction.

Throughout the report and Shalala's responses, nursing homes are depicted as the incorrigible delinquents of the healthcare industry. Although HCFA consultants had, in 1995, predicted serious problems with the survey process because of difficulties in transforming resident outcomes into easily tracked measures, HCFA chose to ignore that prediction and instead blame ineffective inspectors and devious nursing home operators for the problems with the survey procedure.

The attack is sustained by media anecdotes. Despite the lack of hard evidence supporting the view that media horror stories are indicative of the nursing home industry as a whole, media-conscious legislators and public officials have chosen to behave as though this is so. Perhaps it is fortunate that no reports of extraterrestrials being hired as nursing aides have appeared in the tabloids (as yet); in the current political climate, HCFA might feel compelled to instruct states to survey all flying saucers found in facility parking lots.