Florida Elder Law & Estate Planning Blog
Fines Reduced for Many Nursing Home Violations: What It May Mean For Your Loved One
February 22, 2018
In keeping with its goal of reducing bureaucracy and eliminating unnecessary regulations, the Trump Administration has scaled back penalties levied on federally funded nursing homes for violations of certain safety and quality standards. It has also made it more difficult to deny payments to nursing homes for such violations.
Violations are not rare. A 2017 Kaiser Health News report states that since 2013, 4 out of every 10 nursing homes have been found guilty of at least one serious violation. The most common violations include mistreatment, failure to protect residents from avoidable accidents, neglect, and bedsores.
Predictably, these new policies from the Centers for Medicare and Medicaid Services (CMS) have been met with opposition or approval from different quarters. One thing is certain: It more important than ever to thoroughly research facilities when placing a loved one, and to keep an eye on the care your loved one receives once placed. At the end of this post I will point you to several resources for evaluating nursing homes. But first, let’s discuss the new policies.
New Policies and Fines
Pre-Arbitration Clause Now Permitted
The Obama Administration introduced a new rule prohibiting pre-arbitration clauses in nursing home admissions contracts. The rule – never implemented due to a court challenge – would have guaranteed residents and families the right to sue nursing homes in court for fraud, abuse, neglect, etc. That rule is now officially rescinded and pre-arbitration clauses continue to be permitted in nursing home admission agreements.
Daily Fines Not Recommended For Violations Occurring Pre-Inspection
CMS now encourages state authorities to refrain from imposing daily fines for violations that occurred prior to an inspection and instead, levy one-time fines. Industry groups had argued that retroactive daily fines for violations that had already been fixed by the inspection date were pointless. Others argue that the new policy could end up shielding nursing homes from fines for egregious mistakes, above the maximum per-incident fine of $20,965. The CMS still suggests daily fines for major violations discovered during inspection.
Fines Discouraged For One-Time Mistakes
CMS’ current policy is that while intentional disregard of patient health and safety justifies fines, one-time errors, even for serious violations, are not necessarily appropriate.
18-Month Exemption for Drug-Related Safety Rules
In November 2017, nursing homes were granted an 18-month exemption from fines for violations related to several new rules designed to reduce the use of various psychotropic drugs.
Advocates and Critics
Advocates for the nursing home industry applaud the changes. Seema Verma, head of the Centers for Medicare and Medicaid Services, notes that reducing paperwork will increase the quality time staff can spend with residents. The American Health Care Association, the industry’s main trade organization, claims that prior rules were more focused on catching wrongdoing than helping nursing homes to improve. “It is critical that we have relief,” Mark Parkinson, the group’s president, wrote in a December 2016 letter to the president-elect.
On the other hand, patient advocates argue that easing of penalties endangers vulnerable residents. Recently Senators Amy Klobuchar and Richard Blumenthal sent a letter to CMS requesting that it reconsider the changes. They write: “It is abundantly clear that when health or safety is compromised, when errors occur, or in the worst cases, when patients are harmed, there must be a wide range of strong enforcement actions available to ensure that these adverse events are not repeated, precious federal dollars are not wasted, and most importantly, lives are not lost.” A senior attorney at the Center for Medicare Advocacy, Toby Edelman, claims that CMS is “not seeing their responsibility as helping to assure the health and welfare of residents. They’re working to please their customers, the nursing homes.”
What You Should Do Now: Research and Monitor!
The relaxed fines make it more important than ever for you to thoroughly research a nursing home in which you are considering placing a loved one, and to continuously monitor your loved one’s welfare once he/she is there.
It is imperative to actually visit the facility, especially on weekends and evenings. Ask questions of nursing staff, administrators, residents and residents’ family members. Try the food. Ask about use of restraints, psychotropic drugs, staff ratios, staff turnover. Is there special care for those with dementia? How does the place look and smell? Is the facility within a reasonable distance so that family and friends can visit?
Check Out Nursing Home Compare
Also check out Medicare Nursing Home Compare. While the 5-star ratings will be “frozen” for 12 months to allow criteria to be updated, serious deficiencies will still be reported on the site.
Be Careful About Signing Admissions Agreements
Since pre-arbitration clauses are still legal in admissions contracts, know that signing such a clause means you are giving up your right to sue if your loved one suffers injury or neglect. Make sure you read the paperwork carefully. For guidance on what to look for when you are signing admissions paperwork, see my prior post.
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