VI. The SFF Initiative: The Promise of Better Quality
Ruqaiijah Yearby, African Americans Can't Win, Break Even, or Get out of the System: The Persistence of “Unequal Treatment” in Nursing Home Care, 82 Temple Law Review 1177 (Spring-Summer 2010) (214 Footnotes).
Thirteen years ago, CMS initiated the SFF Initiative to stimulate quality-of-care improvements in nursing homes with a history of serious quality issues. Since 2000, research has shown that nursing homes that serve African Americans tend to have a history of serious quality issues, yet these nursing homes are hardly ever included in the SFF Initiative because of institutional bias. If predominately African American nursing homes are included on the list, the care provided at the facility rarely improves enough for the facility to be removed from the list because of structural, institutional, and interpersonal racial bias. These predominately African American nursing homes are allowed to continue to provide poor quality health care while predominately Caucasian nursing homes placed in these programs are forced to improve the quality of care they provide. Hence, instead of stimulating quality improvements in care, the SFF *1197 initiative actually perpetuates the racial disparities in the provision of quality nursing home care.
A. SFF Initiative
Notwithstanding the conditions of participation requirements of the Medicare and Medicaid Acts as discussed in Section III.A, a plethora of nursing homes consistently provide poor quality care to residents. These nursing homes periodically fix a sufficient number of deficiencies, which enables them to pass one survey, only to fail the next survey with the same deficiencies as before. According to CMS, the “yo-yo” compliance of these nursing homes “rarely addresse[s] the underlying systemic problems that were giving rise to repeated cycles of serious deficiencies.” Thus, CMS implemented the SFF Initiative, which identifies 136 nursing homes that are poor-performing facilities (yo-yo facilities with serious quality issues), puts them on a public SFF list, and works with the facilities to improve the quality of care provided in the nursing homes.
Although nursing homes on the SFF list are supposed to represent those with the worst survey findings in the country, based on the most recent three years of survey history, CMS and the states have some discretion. Specifically, the selection of the nursing homes on the SFF Initiative is based on a five-step process. The first two steps are tabulating the score of the health deficiencies and the number of revisits. Then the scores are assigned to the year, with the most recent results heavily weighted. CMS uses the scores to make a list, and the fifteen facilities with the highest scores are presented to the state for consideration. Each state has discretion in selecting fifteen SFF nursing homes from the CMS candidate list and makes a final recommendation to CMS.
Once a nursing home is added to the list, states are required to conduct twice the number of standard surveys to improve the quality of care provided by the nursing home. If the SFF nursing home does not improve:
CMS applies progressive enforcement until the nursing home either (a) graduates from the Special Focus program because it makes significant improvements that last; or (b) is terminated from participation in the Medicare and Medicaid programs; or (c) is given more time due to a trendline of improvement and promising developments, such as sale of the *1198 nursing home to a new owner with a better track record of providing quality care.
Recently, CMS analyzed the effectiveness of the SFF Initiative by comparing the 128 nursing homes selected in 2005 with those on the list that were not selected. Over the course of two years, “approximately 42 percent of the Special Focus nursing homes had significantly improved to the point of meeting the [SFF] graduation criteria, whereas only 29 percent of the alternates had so improved.” Moreover, CMS found that SFF nursing homes were more likely to change ownership or close and “[a]pproximately 15 percent of the Special Focus nursing homes were terminated from participation in Medicare compared with less than 8 percent in the alternates and 2 percent for all other nursing homes.” CMS's study showed improvement in SFF nursing homes, yet there are still problems with the program.
B. Problems with SFF Initiative
Although research studies show that predominately African American nursing homes provided worse quality care than predominately Caucasian nursing homes, these predominately African American nursing homes are rarely on the SFF list because regulators do not put them on the list. This is a form of institutional bias because it “establishes separate and independent barriers” through the neutral “denial of opportunities and equal rights to individuals and groups that results from the normal operations of the institutions in a society.” If by chance, the predominately African American nursing homes with poor quality are on the SFF list, they usually do not improve their care enough to graduate from the SFF list because regulators fail to address the root causes of the poor quality: all forms of racial bias.
1. Failure to Make List
In a report dated August 28, 2009, the U.S. Government Accountability Office (“GAO”) criticized the SFF list because CMS identified the fifteen worst nursing homes per state instead of identifying the worst quality nursing homes in the country. Thus, some nursing homes on the list actually provide better care than nursing homes in other states. Analyzing deficiency data for the nation's roughly 16,000 nursing homes during their three most recent inspection cycles as of December 2008 and using the same five-step process to create the SFF list, the GAO identified 580 nursing homes they called the most poorly performing homes in the country, 448 more than CMS.
*1199 The Chicago Reporter combined the GAO data with Dr. Vincent Mor's racial data to determine the racial composition of the 580 nursing homes. The Reporter's study showed that Illinois had the most predominately African American nursing homes on the GAO list: twelve. Six of the twelve predominately African American nursing homes in the Reporter's study had poorer quality ratings than the two predominately African American nursing homes currently on the October 22, 2009 SFF list. The SFF list also fails to include predominately Caucasian nursing homes that are poor-performing facilities. Nevertheless, there is still a racial disparity between these predominately African American and predominately Caucasian nursing homes. Nationwide predominately African American nursing homes on the GAO list have the most serious deficiencies compared to predominately Caucasian nursing homes. The magnitude of the problem is best illustrated by using the GAO data and Reporter's study to compare the worst predominately African American nursing home in Illinois (Regal Health and Rehab Center, Inc.), with the worst predominately Caucasian nursing home in Illinois (McAllister Nursing and Rehab).
For the last four years, the number of times that Regal Health and Rehab Center, Inc. and McAllister Nursing and Rehab were visited for surveys was almost equal (fourteen versus fifteen), yet the results were different. Since 2007, Regal Health and Rehab Center, Inc. has been cited for immediate jeopardy, meaning it “has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident,” in five different surveys. Since 2007, McAllister Nursing and Rehab was cited for immediate jeopardy in two different surveys. Although McAllister Nursing and Rehab had more instances of immediate jeopardy in fewer surveys, more harm was done to the residents of Regal Health and Rehab Center, Inc. Specifically, two people died at Regal Health and Rehab Center, Inc., one person was severely burned, several people were hospitalized because of infection, and one person had to be sent to the *1200 hospital in order to stop uncontrollable bleeding caused by the staff. Residents at McAllister Nursing and Rehab also suffered and were also hospitalized for infection, and one resident suffered a fracture, but no one died. In 2009, McAllister was fined once for providing poor quality, while Regal Health and Rehab Center, Inc. was fined twice for providing poor quality. Even though both homes have serious quality issues, based on the survey and certification data, Regal Health and Rehab Center, Inc. has a more serious quality issue than McAllister Nursing and Rehab.
Regal Health and Rehab Center, Inc. is only one example of predominately African American nursing homes that should have been on the SFF list. According to empirical research, a significant number of predominately African American nursing homes provide substandard quality health care, particularly when compared to predominately Caucasian nursing homes. Consequently, the SFF Initiative could have been a useful program in addressing the quality disparity between predominately African American nursing homes and predominately Caucasian nursing homes. The SFF Initiative has been effective in improving the quality of care provided to nursing home residents. Yet, while poor-performing Caucasian nursing homes are added to the SFF list and stimulated to improve care, poor-performing African American nursing homes are ignored. If the SFF List included the poorest performing nursing homes, more predominately African American nursing homes would be on the list. This is illustrated by the GAO list, which showed that the poor-performing predominately African American nursing homes had more serious deficiencies than predominately Caucasian nursing homes on the GAO list and the SFF list. Therefore, predominately African American nursing homes should have been on the SFF list because these nursing homes were the poorest performing nursing homes. The GAO used the same five-step process that CMS used, so the problem is not with the five-step process. I submit that the problem is discretion, which in this instance is a form of institutional bias.
*1201 The selection of nursing homes for the SFF list is left to the discretion of regulators. Rather than simply putting the worst quality nursing homes on the list, regulators are allowed to use discretion to choose the facilities on the list. Due to this discretion, poor-performing predominately African American nursing homes are not placed on the SFF list. Hence, this discretion, used in the normal operation of the SFF Initiative, denies African Americans opportunities and equal rights to quality improvement programs, which establishes a separate and independent barrier to quality nursing home care. This is institutional bias. In order to eradicate this separate and independent barrier, discretion must be removed from the selection process of the SFF Initiative and replaced with transparency and substantiated reasoning. This is the only way to ensure that institutional bias is removed from the process of selection for the SFF Initiative and more predominately African American nursing homes are included on the list.
2. Failure to Improve Quality
Even if a predominately African American nursing home is added to the SFF list, it may not improve the quality of the nursing home care provided. For example, the International Nursing and Rehab Center, a predominately African American nursing home in Chicago, Illinois, has been on the list for seventy-three months, over six years, and has not improved the quality of care it provides enough to be removed from the SFF list. In fact, residents continue to die in the facility unnecessarily.
For instance, on September 19, 2006, Luzella Roberts was placed in the International Nursing and Rehab Center. After only six days at the facility, she suffered irreparable harm during dialysis that ultimately led to her death. On September 25th, the nurse inserted a syringe in Mrs. Roberts's left arm, although Mrs. Roberts's medical chart specifically instructed that dialysis was to be conducted using “a catheter that was surgically implanted in Roberts' right arm” not through the left arm. The syringe remained there for three hours. It was removed when “Roberts' daughter, Cynthia Wade, stopped by to visit and saw her mother's arm and face gray and swollen. Wade began screaming at the nurse to remove the needle.” When the nurse removed the needle, “Roberts' arm began to bleed uncontrollably and she was rushed to the emergency room.” Roberts remained at the hospital and on October 10, 2006, she underwent a procedure to stem the bleeding in her arm. Initially, the bleeding stopped, but started again one week later. Consequently, Mrs. Roberts underwent *1202 additional surgery on October 19th and 25th. Mrs. Roberts continued to deteriorate, and she died on October 31, 2006. Unfortunately, this was not the only death that occurred at International Nursing and Rehab Center that was linked to the facility's poor care.
On August 29, 2007, a resident got caught in his bedside rails and died. His death actually occurred while International Nursing and Rehab Center was listed on the SFF list. Notwithstanding this fact, International Nursing and Rehab Center remains certified to participate in the Medicare and Medicaid programs and is still on the most recent SFF List dated February 17, 2011. The SFF Initiative is supposed to address the underlying systemic problems that cause serious deficiencies; yet it does not because it fails to address or acknowledge the structural, institutional, and interpersonal racial bias, which are the systemic problems that cause predominately African American nursing homes to provide substandard care.
The structure of the nursing home system, like the structure of the health care system, is based on ability to pay, not need. As a result of their socioeconomic status, African Americans are relegated to poor-performing nursing homes, while the wealthy and Caucasians are able to afford to stay in quality nursing homes or assisted living facilities. Institutional bias, which erects separate and independent barriers, keeps nursing homes racially segregated, which is linked to racial disparities in quality. Data shows that the best quality nursing homes are located in predominately Caucasian neighborhoods and have a predominately Caucasian population. Interpersonal bias keeps African Americans from being admitted to some quality nursing homes and placed in nursing homes that are underfunded and understaffed. The SFF Initiative does not address any form of racial bias.
Regulators do not provide any nursing home, particularly predominately African American nursing homes, on the SFF list with additional resources. Instead they impose more fines on the nursing home, exacerbating the resource differential that already exists between some predominately Caucasian and predominately African American nursing homes. Additionally, the SFF Initiative does not address nursing home admission policies or the severe understaffing of predominately African American nursing homes. By failing to address these forms of bias, regulators permit nursing home owners and staff to concentrate in affluent non-minority areas, deny admission to African Americans, and provide fewer resources to predominately African American nursing homes. Therefore, it is no wonder that predominately African American nursing homes disproportionately provide substandard care. As evidenced by the problems with the SFF Initiative, improving the quality of care in predominately African American nursing homes cannot be accomplished until the root cause of the *1203 poor quality, racial bias, is acknowledged and addressed. Until then predominately African American nursing homes will continue to provide substandard care compared to predominately Caucasian nursing homes.