Twenty years of OBRA—Has it really been that long?

Healthcare has had a long history of self-improvement. One need look no further than the Flexner Report (published in 1910) and the dramatic changes it precipitated in American medicine. Or the creation in 1951 of the Joint Commission on the Accreditation of Hospitals (a product of the American Hospital Association, the American Medical Association, the American College of Physicians, and the American College of Surgeons). These were phenomena initiated from within the professions, not forced on the professions from without.

The scandals that precipitated them were, it is true, far more newsworthy than much of what bedeviled nursing homes in the late 1980s. Flexner, for example, described Chicago’s 14 medical schools as “a disgrace to the State whose laws permit its existence…indescribably foul…the plague spot of the nation.” Hospitals had their own scandals. And, given that history, one might argue that the involved professions had no choice but to act. But, the point is, they did.

And nursing homes didn’t—even as scandals and exposés about poor-quality care, abuse, and fraud in nursing homes became depressingly common. I write these words not to disparage nursing homes. I am well aware of the incredible work performed by the overwhelming majority of nursing home operators under the most difficult circumstances. It was a distinct privilege to represent them in Washington for well over 15 years. Those are some of my proudest and most gratifying moments in a long career in gerontology.

Rather, my point is to learn from the past and to help others in our profession avoid the mistakes made by all of us in the 1980s. Most of my readers are well aware of my favorite and oft-repeated quotation attributed to Spanish-born philosopher George Santayana: “Those who cannot learn from history are doomed to repeat it.” The lessons of the Omnibus Budget Reconciliation Act of 1987 (OBRA ’87), our own reform legislation, are 20 years later still there for all our educations.

Let’s start with the standards themselves. This is the one area where we might well have taken the lead. The Institute of Medicine’s 1986 report on “Improving the Quality of Care in Nursing Homes” was both groundbreaking and mundane—mundane in that so few of its 100-plus recommendations were either revolutionary or even objectionable. They included suggestions for a minimal amount of nurse staffing, training for nursing aides, mandated resident assessments, and annual reviews.

It was groundbreaking, however, in that it took such a report and a subsequent act of Congress to make them a recognized part of nursing home culture.

In fact, when one reflects on the legislation, its most surprising feature was that it was even deemed necessary. Who in long-term care can argue the point that progress along the continuum must of necessity begin with an examination of resident needs and the corresponding development of a reflective plan of care? Who can dispute the need for nurses in a nursing home? Or that aides should undergo at least 75 hours of training before caring for their frail and needy charges?

We couldn’t and, to our credit, we didn’t. The American Health Care Association’s (AHCA) objections dealt more with practical realities than with the substantive recommendations. A requirement for 24 hours of nursing coverage couldn’t stand up to legitimate criticism. A requirement that those hours be filled by registered nurses, however, needed to address the issue of availability of those nurses. Nurse aide training was not objectionable, but nurse aide training off-site, with no guarantee that the student would return to the facility facilitating the training, was something else.

The basic issue, though, lay not in the substance of reform, but in the fact that the substance had to be imposed by Congress. Why didn’t we learn from our colleagues in the hospital industry? Why didn’t we establish our own accreditation standards? Why wasn’t membership in our professional and trade associations a condition of meeting those standards? (And I personally assume much of the blame for the fact that it wasn’t.) Say what you will about “deemed status” for hospitals—the idea that compliance with JCAHO standards is deemed to be in compliance with federal government standards—the hospitals at least have it. And they have it because their standards predated the advent of Medicare and Medicaid and the increasing role of government in American healthcare. (Are you listening, assisted living?)

So, it’s not the standards that we should take issue with. If anything, the history of quality improvement in nursing homes gives us all much to be proud of. Forget the statement from the Congress’s paid “analysts” (the Government Accountability Office [GAO] comes to mind) and certain unnamed chairpersons of the Senate’s Special Committee on Aging. Forget recommendations from guild representatives (e.g., organized nursing), for whom a major goal seems to have been augmenting their own numbers, status, and reimbursement. I prefer to look at fact, not opinion. And it is fact that the use of both physical restraints as well as of psychoactive drugs has dropped precipitously since 1987. Data demonstrate the decreased incidence of pressure ulcers and catheterization. The literature is replete with evidence of more accurate assessments, increased and more effective hearing aid use, better toileting programs, and more advance directives.

Ah, but here’s the rub: Those who have made a career of disparaging nursing homes would have us believe that it is not the standards (and the industry’s acceptance of them) that has propelled admitted improvements in long-term care. Rather, in their view, it is the enforcement of those standards. (Parenthetically, that doesn’t stop that same GAO, those same committee chairs, and those same representatives of organized healthcare professionals from arguing the inadequacy of the enforcement process itself. But, then, who has the right to demand consistency in Washington, D.C.?)

Even an excellent synopsis of the literature (“OBRA 1987 and the Quality of Nursing Home Care”) in the March 2006 issue of the International Journal of Health Care Finance and Economics suggests the difficulty of differentiating the impetus for quality improvements, respectively, from the standards enacted by OBRA in 1987 and the enforcement procedures implemented in 1990. I’m not sure I disagree—but from an entirely different perspective. My long-held view is that the implementation of OBRA enforcement actually diminished the potential of the standards. It is not, I would argue, that the standards for improved care have been found wanting. It is the means chosen by the Health Care Financing Administration (HCFA), now CMS, to implement those standards that violated and even diminished the essential promise of OBRA.

Don’t get me wrong—enforcement was and is a critical part of OBRA, a necessary part, if you will. But how we enforce it is critical to the ultimate success of the legislation. I remember all too vividly the philosophical debates that were conducted among HCFA, consumer advocates, and the profession as to the underlying purpose of enforcement. The essence of the debate can be summed up in two words: “penalties” versus “remedies.” That debate stemmed largely from underlying perceptions as to the very nature of the industry. That is, if one was inclined to view the profession as consisting largely of self-serving entrepreneurs primarily interested in “making a buck,” then penalties had to be imposed for each and every transgression, intent notwithstanding.

If one assumed, on the other hand, that most operators are well-meaning and looking for guidance and expert advice, then “remedies” would suffice—that is, if change (not retribution) was the ultimate goal. That is not to deny the reality of a small percentage of operators for whom only the most stringent penalties might effect change. And, God knows, there were more of them in the industry in 1987 than we chose to admit.

But they were by no means the majority. They were not even a large minority. But to treat everyone as though he or she was a part of that small minority would, as it happened, bring with it disastrous and deleterious results. Government’s approach to enforcement changed the very definition of quality in America’s nursing homes. It was no longer defined as the “enhancement of life.” It had become “avoidance of harm.” How sad.

What has happened since the 1990 implementation of OBRA enforcement procedures was perhaps best described by Susan Weiss, Senior Vice President of the American Association of Home and Services for the Aging (AAHSA). Susan and I attended a seminar in December sponsored by the Henry J. Kaiser Family Foundation and the Alliance for Health Reform. On the panel sat most of the (now geriatric) players responsible for the nursing home provisions of OBRA ’87. Ruth Katz was on the panel; now Dean of the School of Public Health at George Washington University, she was then staff member for Congressman Henry Waxman (D-Calif.); John Rother, then and now with AARP; Christine Williams, staff to Senator George Mitchell and currently with the Agency for Healthcare Research and Quality; Elma Holder, founder of the National Citizens Coalition for Nursing Home Reform. And the list goes on. It was a sort of “old home week.”

The most trenchant comments came from Susan. In discussing OBRA enforcement, Susan talked about the goal versus the reality of nursing home care. The goal, she suggested, was to create in nursing homes an atmosphere of joy. The reality, precipitated by enforcement, was an environment of fear. Fear and joy, she suggested, cannot coexist. I was impressed. Susan enunciated more eloquently than I ever have the dilemma posed by the enforcement provisions of OBRA.

She’s not alone. I’ve often quoted Bob and Rosalie Kane, certainly no shills for nursing homes, regarding the enforcement provisions of OBRA. In their 1998 text “The Heart of Long-Term Care,” they wrote that in our current system, “…quality of care is more likely to be defined as the absence of bad events than the presence of good ones. The first line of defense in establishing a regulatory program like OBRA is to assure that bad things do not occur. Most regulatory efforts are thus designed to identify the ‘bad apples.’ This emphasis has a number of unfortunate consequences: (1) It subjects the majority of care providers (who are doing a good or at least adequate job) to unnecessary scrutiny; (2) it directs attention to a limited set of measures; (3) it creates a false sense of quality that suggests that staying out of trouble is equivalent to doing a good job; and (4) it creates, or supports, a negative image of the field by not identifying positive goals.”

Pretty good description, don’t you think? Can it change? Who knows? Certainly, to achieve the real spirit of OBRA, it must. To go beyond OBRA, it must—and there is no doubt that we must go beyond OBRA.

We still have a major problem in long-term care. It’s called staffing. We all agree we need more of it. Buildings don’t provide long-term care. People do. And we don’t have enough of them. But, just maybe, this is an issue which lends itself to one of OBRA’s most positive features: the consensus among providers, consumers, and politicians that change is necessary. We all agree that more staffing is imperative. We all know that only Congress can free up the resources necessary to make that happen.

So perhaps we might, for once, gang up on Congress. True, providers and consumers might, again, have to compromise. Providers might need to recognize that additional funding actually needs to show up in staff paychecks. Consumers might need to admit that the mechanism whereby that happens is best determined by providers.

But wouldn’t it be great if such a consensus actually hoisted Congress on its own petard and led to real quality improvement? One can only hope!

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Long-Term Living 2008 August;57(8):12-16

Topics: Articles , Regulatory Compliance