Bill to reform ‘adversarial and punitive’ surveys on nursing facilities and staff considered by Michigan Senate committee

Nursing home representatives and legislators are progressing legislation to rein in “adversarial and punitive” regulatory surveyor citations to limit the persistent challenges faced by staff from these numerous regulatory actions, said Richie Farran, VP of Government Services at the Health Care Association of Michigan. 

The Senate Health Policy and Human Services Committee heard testimony for House Bill 5609 on Thursday, which would require the Michigan Department of Licensing and Regulatory Affairs administer a certification process for nursing homes in conformance with federal law, and to implement a quality assurance monitoring process for all nursing home surveys, including a review of citations. 

 

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Farran said that states are to enforce federal regulatory rules outlined by CMS to ensure the safety and effectiveness of nursing facilities. Areas covered by these regulations include patient’s rights, infection control protocols, and training requirements for staff. Farran said this bill is not looking for less oversight or a change to these rules, but instead change the manner in which state surveyors conducted their surveys. 

Karli Zubek, Legislative Director representing Rep. Bronna Kahle (R-Adrian)—sponsor of the bill—said Michigan is “an outlier in the frequency, scope, and severity of citations” among other states. However, Farran said CMS shows the state’s quality of care for nursing facilities are at or above what is typical in other states. 

She said in 2020, Michigan had double the amount of average citations as the national average. These “unfair and inconsistent” regulatory practices lead to lower quality care and a drop of morale among staff, which is already exacerbated by the COVID-19 pandemic. 

Surveyors are supposed to give unannounced surveys annually or when a complaint has been filed on a facility. However, Farran and Zubek said the problem lies in the inconsistency of how the surveyors interpret, perceive, and act on the federal regulations. 

“Providers experience uncoordinated and untimely visits for annual and complaint surveys, resulting in increased enforcement actions,” Farran said. “Inconsistencies of scope and severity determination exist across survey teams, making compliance dependent on the interpretation of each individual surveyor.”

Zubek said the bill would improve the surveyor process and make sure nursing facilities are evaluated in a “more fair, accurate, and timely manner,” without lowering the overall quality of care for patients. 

“Michigan’s regulatory process should be reviewed with an eye to adherence to the guidelines within state statute and equity with other states and our nation to a level of professionalism and collaboration to provide the absolute best care to our seniors,” Zubek said. 

Sen. Ruth Johnson (R-Groveland Township) was concerned about how seniors were being treated in nursing homes in Michigan, and supported holding surveyors and nursing homes accountable. 

“The health conditions are something you wouldn’t let a stray dog live in,” Johnson said. “I am very concerned about the lack of professionalism and common decency by the state of Michigan to elderly people that are so vulnerable … The instances that I have seen and the lack of regulation by the state is the most deplorable, horrible thing I have seen in a long, long time.”

Farran said he hopes this new process will be better in getting rid of the “bad apples” to reduce some of the poor health outcomes described by Johnson. 

“To prevent, or make those happen less, you just need good staff,” Farran said. “Unfortunately, the profession has been battered and bruised … When there is so much negative rhetoric around facilities and when it is all about negative outcomes, how do you attract good people to the profession? Beyond the regulatory issues, the number one issue is workforce.”

LARA is neutral to the bill, while LeadingAge Michigan and Michigan County Medical Care Facility Council support the bill. The bill awaits a vote in the Senate Health Policy and Human Services Committee.