There is disappointing news for nursing home residents and families of those residents.  The Trump administration is reversing guidelines that were put in place under the Obama administration that worked to protect vulnerable nursing home residents.  Federal guidelines govern nursing home care and treatment.  The Omnibus Budget Reconciliation Act (OBRA) set forth minimum standard guidelines for nursing home facilities.  Facilities receiving Medicare funding are subject to these regulations and the penalty protocols for violations.  The penalty protocols allow for levying fines against nursing home for violations of the regulations.  The Trump administration is significantly scaling back the use of these fines.

According to a CNN Money article you can find here http://money.cnn.com/2018/01/03/news/nursing-homes-trump/index.html nearly 6,500 nursing homes have been cited at least once for a serious violation since 2013. This reflects 4 out of every 10 nursing homes being cited.  Medicare fined two-thirds of those homes.  Typical citations include failing to protect nursing home residents from avoidable accidents such as falls, neglect by staff and development of bedsores.

The American Health Care Association is the nursing home industry’s main trade group.  It complained that the use of fines for violations of regulations focused on catching wrong-doers and not enough on helping nursing homes improve.  Medicare can apply penalties in different ways.  It can impose a specific fine for a specific violation.  It can assess a fine for each day that a nursing home was in violation of a regulation.  Medicare can also deny payments for new resident admissions.  For example, in 2016 The Center for Medicare and Medicaid Services (CMS) fined an Illinois nursing home $282,954.  This fine was calculated as a penalty of $10,091 per day for 28 days.  The time period included the date when the nursing home first noticed a resident’s wound until its supervisors had retrained nurses to avoid similar errors.  In that case, the resident died after the nursing home failed to monitor and treat a wound of the resident whose pain pump came through a ruptured stitch line and protruded from her abdomen.  The pain pump came through the wound over the course of 8 days.  Nursing homes claim providers are forced to spend time complying with regulations that get in the way of caring for their patients and don’t increase the quality of care.  Nursing home resident advocates say revising any of these penalties weakens valuable patient safety tools.

New Trump guidelines have been working to undermine the use of these penalties even when the violations by the nursing homes result in a resident’s death and to reduce nursing home resident’s right to trials of their claims.  These administrative changes have been happening slowly over time.  In June, CMS rescinded an Obama administration action that banned nursing homes from requiring residents to submit to arbitration, rather than getting their day in court, to settle disputes. In July, a memo from CMS discouraged directors of state agencies that survey nursing homes from issuing daily fines for violations that began before the inspection took place. Surveyors were encourages to assess one-time fines instead.  However, daily fines could continue to be used for major violations discovered during an inspection. In October, CMS further discouraged surveyors from levying fines if the error was considered a “one-time” mistake.  The memo said this should be the case even where there were the most serious health violations.  In November, the Trump administration then exempted nursing homes that violate 8 new safety rules for 18 months.

Nursing home residents and their families must remain vigilant.  The same scenarios play out in facilities day-in and day-out.  Facilities argue they do not have the resources to get everything done to meet resident’s needs and appropriately care for residence in compliance with the Medicare regulations.  There never seem to be enough hands on deck.  Communication falls between the cracks.  Documentation is incomplete or inaccurate.  Residents wait for minutes and sometimes hours for basic assistance, such as toileting and transferring from their bed to chairs and walkers.  Family members can’t seem to find staff to assist when they visit.  Red call bell lights are illuminating hallways for far too-long without an answer.  Where private nursing homes must remain concerned with their profits, they will advocate against more regulation and the use of fines.  Residents are left with fewer remedies as fines are undermined and arbitration clauses come back into admission agreements.

If you or a loved one are researching nursing homes, you can view New York State Nursing Home profiles by visiting https://profiles.health.ny.gov/nursing_home/ 

If you or a loved one have been the victim of nursing home neglect or abuse, you can report the nursing home to the New York State Nursing Home Complaint hotline by contacting them at 1-888-201-4563 or you can access a nursing home complaint form by visiting https://apps.health.ny.gov/nursing_homes/complaint_form/complain.action  These actions will not result in a monetary award, but will trigger an investigation of the nursing home by the New York State Department of Health.

If you are interested in discussing potential nursing home neglect claims, please feel free to use the Contact page to submit an inquiry and have a free consultation scheduled.