1 Using Civil Monetary Penalties and State Fines to Promote Nursing Home Innovation Richard J. Mollot, Esq. Long Term Care Community Coalition for the.

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

Innovation Innovation

Richard J. Mollot, Esq.Richard J. Mollot, Esq.Long Term Care Community CoalitionLong Term Care Community Coalition

for thefor theNY State LTCOP Training InstituteNY State LTCOP Training Institute

October 18, 2007October 18, 2007

Materials and resources on CMPs are available Materials and resources on CMPs are available for free on our “nursinghome411” website at for free on our “nursinghome411” website at

nursinghome411.org/CMPProject/ nursinghome411.org/CMPProject/

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Federal Requirements State Licensing and Certification agencies are State Licensing and Certification agencies are

authorized to recommend CMPs for federal violations authorized to recommend CMPs for federal violations and to issue state fines for state violationsand to issue state fines for state violations

States are allowed use CMPs/fines collected from States are allowed use CMPs/fines collected from violations of federal and state laws/regulations on:violations of federal and state laws/regulations on:

Maintaining the operations of a facility pending correction of Maintaining the operations of a facility pending correction of deficiencies or closuredeficiencies or closure

For receiverships and relocation of residents For receiverships and relocation of residents Reimbursing residents for personal funds lost Reimbursing residents for personal funds lost For innovative projects that benefit facility residentsFor innovative projects that benefit facility residents

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Need for the ProjectNeed for the Project

Lack of information and knowledge about the Lack of information and knowledge about the use of fines collected by states limits their use of fines collected by states limits their potential to be used for the benefit of NH potential to be used for the benefit of NH residents.residents.

Used creatively, funds from CMPs/fines could Used creatively, funds from CMPs/fines could stimulate adoption of resident centered care in stimulate adoption of resident centered care in nursing homes.nursing homes.

Existing state “best practices” on use of Existing state “best practices” on use of CMPs/fines should be shared with states, CMPs/fines should be shared with states, ombudsman, advocates, providers, policy ombudsman, advocates, providers, policy makers, and others.makers, and others.

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Project GoalProject Goal

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

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Specific ObjectivesSpecific Objectives

To inform state agencies, providers, To inform state agencies, providers, ombudsman, consumer groups, policy ombudsman, consumer groups, policy makers, and the public about practices and makers, and the public about practices and experiences in use of federal CMPs and experiences in use of federal CMPs and state fines.state fines.

To encourage appropriate and innovative To encourage appropriate and innovative uses of funds from CMPs/fines to improve uses of funds from CMPs/fines to improve nursing home resident care and/or quality nursing home resident care and/or quality of life.of life.

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How Was Study Conducted?How Was Study Conducted?

LTCCC partnered with Charlene LTCCC partnered with Charlene Harrington, one of the Harrington, one of the preeminent researchers on preeminent researchers on gerontological issues in the gerontological issues in the country and the National country and the National Citizens’ Coalition for Nursing Citizens’ Coalition for Nursing Home Reform.Home Reform.

Collected data from state Collected data from state officials as well as consumer officials as well as consumer groups and ombudsmen.groups and ombudsmen.

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Findings on State Experiences - Findings on State Experiences - 20042004

47 states & DC issued federal CMPs47 states & DC issued federal CMPs

(except AK, SD, WY)(except AK, SD, WY) 39 states & DC issued state CMPs39 states & DC issued state CMPs 41 states & DC collected CMPs (10 41 states & DC collected CMPs (10

hadhad

none)none) 21 states collected state CMPs/fines21 states collected state CMPs/fines There were wide variations in There were wide variations in

CMPs/fines issued and collected CMPs/fines issued and collected

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Findings on State Experiences - Findings on State Experiences - 20042004

46 states had fund accounts for CMPs/fines46 states had fund accounts for CMPs/fines

(except AK, CT, DC, SD, WY)(except AK, CT, DC, SD, WY) 41 states had over $60 million in funds in 41 states had over $60 million in funds in

20052005

(5 states could not report) (5 states could not report) 32 states spent $27.7 million between 1999-32 states spent $27.7 million between 1999-

2005 from their account & 8 states had not 2005 from their account & 8 states had not

used fundsused funds Information on CMPs/fines was largely Information on CMPs/fines was largely

unavailable from statesunavailable from states

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Findings on State Experiences - Findings on State Experiences - 20042004 About half the states who used the About half the states who used the

funds used them for special projects funds used them for special projects to improve nursing home care.to improve nursing home care.

Of total expenditures, 20% was spent Of total expenditures, 20% was spent on provider projects, 5% on advocacy on provider projects, 5% on advocacy projects, and 10% on other projects.projects, and 10% on other projects.

Some state fines were used for Some state fines were used for schools or put into the general schools or put into the general Medicaid fund.Medicaid fund.

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Findings on State Experiences - Findings on State Experiences - 20042004

Most states who used the funds Most states who used the funds for nursing home projects came for nursing home projects came from the Midwest, South and the from the Midwest, South and the Middle Atlantic regions.Middle Atlantic regions.

Average amount funded:Average amount funded:Provider projects - $48,000Provider projects - $48,000Advocacy projects - $110,000Advocacy projects - $110,000Other - $76,000Other - $76,000

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Findings on Getting Findings on Getting Information Information

Most states had difficulty obtaining Most states had difficulty obtaining current information about the current information about the number and the amount of federal number and the amount of federal CMPs issued and collected by CMS. CMPs issued and collected by CMS.

This project had to collect some This project had to collect some information on fund balances by information on fund balances by using FOIA requests because some using FOIA requests because some states were unwilling to provide the states were unwilling to provide the information without such a request.information without such a request.

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Findings on Getting Findings on Getting Information Information

Ombudsman and citizen advocacy group Ombudsman and citizen advocacy group respondents were largely aware of respondents were largely aware of CMPs/fines but most did not know how CMPs/fines but most did not know how much was collected or how the funds were much was collected or how the funds were used in their states. Most ombudsman used in their states. Most ombudsman and citizen advocate respondents favor and citizen advocate respondents favor making this information public.making this information public.

26% of state ombudsman respondents, 26% of state ombudsman respondents, 14% of local ombudsman respondents, 14% of local ombudsman respondents, and 31% of CAG respondents made CMP and 31% of CAG respondents made CMP information available to the public. information available to the public.

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Findings on Process of Findings on Process of Using FundsUsing Funds

Most reporting state officials stated they do Most reporting state officials stated they do NOT have procedures established to inform NOT have procedures established to inform stakeholders about the availability of funds stakeholders about the availability of funds from CMP/fines for special projects. from CMP/fines for special projects.

Most state officials stated that they do NOT Most state officials stated that they do NOT involve stakeholders in the decision-making involve stakeholders in the decision-making about the use of the CMPs/fines. about the use of the CMPs/fines.

Almost 2/3 of state ombudsman Almost 2/3 of state ombudsman respondents indicated a lack of respondents indicated a lack of participation in decision-making on the use participation in decision-making on the use of CMPs/fines.of CMPs/fines.

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Examples of State Special Examples of State Special ProjectsProjects

Arizona: Arizona: 33 nursing homes were funded 33 nursing homes were funded between $3000 and $35,000 for culture between $3000 and $35,000 for culture change.change.

Delaware:Delaware: Training workshops for Training workshops for facilities on restraints and pressure facilities on restraints and pressure ulcers.ulcers.

Florida: Florida: A university research project to A university research project to identify the extent of mental illness among identify the extent of mental illness among residents and to make recommendations residents and to make recommendations for specialized staff training; a study of for specialized staff training; a study of inadequacy of dental care.inadequacy of dental care.

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Examples of State Special Examples of State Special ProjectsProjects

IowaIowa: CNA recruitment and : CNA recruitment and retention initiatives.retention initiatives.

Kansas:Kansas: Resident relocation and Resident relocation and ombudsman and direct staff ombudsman and direct staff training and resource materials.training and resource materials.

Illinois and KentuckyIllinois and Kentucky: Support for : Support for local ombudsman programs to local ombudsman programs to increase staff so residents have increase staff so residents have access to ombudsman services with access to ombudsman services with a goal of 1 paid ombudsman per a goal of 1 paid ombudsman per 2000 LTC beds. 2000 LTC beds.

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Examples of State Special Examples of State Special ProjectsProjects

IndianaIndiana: An Alzheimer’s and : An Alzheimer’s and dementia care training program.dementia care training program.

LouisianaLouisiana and Illinoisand Illinois: Culture : Culture change initiatives.change initiatives.

Maryland:Maryland: Quality improvement and Quality improvement and technical assistance units, family technical assistance units, family council development, Wellspring council development, Wellspring projects, pets-on-wheels for projects, pets-on-wheels for facilities, and a hospice network.facilities, and a hospice network.

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Examples of State Special Examples of State Special ProjectsProjects

Michigan:Michigan: A special team for NH A special team for NH remediation and closures, a NH remediation and closures, a NH transition program, and evaluation transition program, and evaluation of a NH dining assistant program.of a NH dining assistant program.

MinnesotaMinnesota: Production and : Production and distribution of a brochure on distribution of a brochure on restraint use and a training video.restraint use and a training video.

New Jersey:New Jersey: Quality improvement, Quality improvement, Eden Alternative grants, and a Eden Alternative grants, and a resident satisfaction survey. resident satisfaction survey.

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Examples of State Special Examples of State Special ProjectsProjects

North Carolina:North Carolina: Five programs for Five programs for quality improvement initiatives, a quality improvement initiatives, a university medication error study, and university medication error study, and Eden Alternative and Pioneer Network Eden Alternative and Pioneer Network programs. programs.

OhioOhio: Technical assistance programs : Technical assistance programs to help improve quality of care.to help improve quality of care.

South Carolina:South Carolina: Culture change – Culture change – Eden Alternative.Eden Alternative.

Tennessee: Tennessee: Eden Alternative grants.Eden Alternative grants.

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CASE STUDIESCASE STUDIES

Six states chosen for more in-Six states chosen for more in-depth study: Kansas, Mass, depth study: Kansas, Mass, Michigan, Maryland, New Jersey Michigan, Maryland, New Jersey and North Carolina.and North Carolina.

Telephone interviews with Telephone interviews with stakeholders including consumer stakeholders including consumer advocates, providers, ombudsmen.advocates, providers, ombudsmen.

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Recommendations on ProcessRecommendations on Process

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

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Recommendations on ProcessRecommendations on Process Establish a public process including Establish a public process including

public notice of fund availability with a public notice of fund availability with a clear annual timeline for applications clear annual timeline for applications for funding of innovative projects and for funding of innovative projects and an objective review process.an objective review process.

Establish a broad based advisory Establish a broad based advisory committee composed of stakeholder committee composed of stakeholder groups such as consumer advocates, groups such as consumer advocates, ombudsman, providers, etc… to ombudsman, providers, etc… to establish priorities for the use of funds establish priorities for the use of funds and to advise on the selection of and to advise on the selection of specific projects. specific projects.

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Recommendations on Recommendations on ProcessProcess

Ensure that the state survey and Ensure that the state survey and certification agency responsible for certification agency responsible for levying the CMPs/fines retains levying the CMPs/fines retains control over how those funds are control over how those funds are used and is accountable for how used and is accountable for how they are used.they are used.

Remove state requirements that Remove state requirements that restrict the use of funds (such as restrict the use of funds (such as putting the funds in the state putting the funds in the state general fund) or prevent the funds general fund) or prevent the funds from being used for projects to from being used for projects to improve quality. improve quality.

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Recommendations on Recommendations on ProcessProcess

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

Allocate funds for Allocate funds for programs/projects that are programs/projects that are practical and can be sustained practical and can be sustained and/or replicated by others after and/or replicated by others after the funding has ended.the funding has ended.

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Recommendations: Use of Recommendations: Use of FundsFunds

Absolutely require that funds be used Absolutely require that funds be used for purposes directly related to nursing for purposes directly related to nursing home residents.home residents.

Expend funds for CMPs/fines primarily Expend funds for CMPs/fines primarily for special projects & programs that for special projects & programs that stimulate resident quality of care and stimulate resident quality of care and quality of life that can ultimately be quality of life that can ultimately be replicated.replicated.

Limit the use of funds for relocation, Limit the use of funds for relocation, temporary management, other licensing temporary management, other licensing and certification activities, and state and certification activities, and state emergencies to what is necessary.emergencies to what is necessary.

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Recommendations on Use Recommendations on Use of Fundsof Funds

Authorize funds for innovative Authorize funds for innovative projects that go beyond regulatory projects that go beyond regulatory requirements and ordinary budget requirements and ordinary budget items to improve residents’ quality items to improve residents’ quality of care and quality of life, encourage of care and quality of life, encourage person directed care, promote person directed care, promote consumer advocacy and involvement consumer advocacy and involvement and stimulate and support the and stimulate and support the spread of “culture change.” spread of “culture change.”

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Recommendations on Use of Recommendations on Use of FundsFunds Target consumer focused projects such Target consumer focused projects such

as work with family councils, resident as work with family councils, resident councils, consumer advocacy councils, consumer advocacy organizations, and ombudsman projects. organizations, and ombudsman projects.

Establish an evaluation process for all Establish an evaluation process for all projects, using outside evaluation projects, using outside evaluation experts if possible.experts if possible.

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

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Recommendations On Recommendations On InformationInformation

Publish annual summary reports on the Publish annual summary reports on the amount of funds available from CMPs/fines, amount of funds available from CMPs/fines, the specific uses of the funds by year, the the specific uses of the funds by year, the organization receiving funds, and details organization receiving funds, and details on the project evaluations. This on the project evaluations. This information should include: information should include: Whether there is a special account set upWhether there is a special account set up A quarterly account balanceA quarterly account balance The process for applying to use the fundsThe process for applying to use the funds How the funds are usedHow the funds are used The state’s evaluation of the The state’s evaluation of the

program/projectprogram/project

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Recommendations On Recommendations On InformationInformation

Ensure that these reports are distributed Ensure that these reports are distributed to long term care ombudsmen and to long term care ombudsmen and advocates.advocates.

State ombudsmen should include State ombudsmen should include information about use of CMPs/fines in information about use of CMPs/fines in routine training offered to local routine training offered to local ombudsmen, and offer them suggestions ombudsmen, and offer them suggestions about how to inform the public about about how to inform the public about these enforcement actions.these enforcement actions.

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Strategies Strategies Educate the public in your community.Educate the public in your community. Promote grassroots action.Promote grassroots action. Participate in the decision-making process Participate in the decision-making process

on how to use the funds to improve nursing on how to use the funds to improve nursing home care and quality of life – advocate for home care and quality of life – advocate for role through state ombudsman office, NY role through state ombudsman office, NY SOFA, ombudsman association.SOFA, ombudsman association.

Propose projects or programs for funding Propose projects or programs for funding thatthat meet the study's recommendations meet the study's recommendations and recommendations of CMP and recommendations of CMP stakeholders in NY.stakeholders in NY.

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Strategies Strategies

Request information on CMPs/ Request information on CMPs/ fines levied and collected in your fines levied and collected in your state – use this information to state – use this information to continue informing the public or continue informing the public or to apply for money.to apply for money.

Advocate for legislation that will Advocate for legislation that will require fines collected to be used require fines collected to be used for programs that improve for programs that improve resident quality of life.resident quality of life.

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Current Status Current Status NY State has close to $2 million in NY State has close to $2 million in

its CMP account.its CMP account. DOH released first request for DOH released first request for

proposals (RFP) that was limited to proposals (RFP) that was limited to nursing homes with poor pressure nursing homes with poor pressure ulcer performance to pay for tech ulcer performance to pay for tech program – LTCCC and other program – LTCCC and other consumers very disappointed.consumers very disappointed.

LTCCC responded by:LTCCC responded by: Voicing concern to DOH officials.Voicing concern to DOH officials.

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Current Status Current Status As a result of our advocacy, DOH As a result of our advocacy, DOH

modified the current RFP to require modified the current RFP to require input from nursing home community.input from nursing home community.

DOH also agreed to quickly issue a DOH also agreed to quickly issue a new RFP that is more in line with new RFP that is more in line with what stakeholders in NY want and the what stakeholders in NY want and the recommendations from our study.recommendations from our study.

We have issued a citizen action so We have issued a citizen action so people can let DOH, Governor Spitzer people can let DOH, Governor Spitzer and senior legislators know how they and senior legislators know how they feel about the use of CMP funds (go feel about the use of CMP funds (go to to www.ltccc.orgwww.ltccc.org). ).

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To Learn More & To Learn More & ParticipateParticipate

Join the NY State CMP Stakeholder Group Join the NY State CMP Stakeholder Group at at http://groups.google.com/group/ny-cmp-stakehohttp://groups.google.com/group/ny-cmp-stakeholderslders. LTCCC is using this to keep people informed . LTCCC is using this to keep people informed about developments. You can:about developments. You can: Hear when DOH releases a request for Hear when DOH releases a request for

proposals;proposals; Get news on major CMP developments;Get news on major CMP developments; Talk to others interested in CMPs (including Talk to others interested in CMPs (including

potentials partners with whom to apply for potentials partners with whom to apply for money).money).

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To Learn More & To Learn More & ParticipateParticipate

The full study, along with resource The full study, along with resource materials and news on CMPs, can materials and news on CMPs, can be found on LTCCC’s homepage, be found on LTCCC’s homepage, www.ltccc.orgwww.ltccc.org, or by going directly , or by going directly to our “nursinghome411” to our “nursinghome411” website’s CMP page: website’s CMP page: www.nursinghome411.org/CMPProjecwww.nursinghome411.org/CMPProject/t/..