The Trump administration has relaxed financial penalties against nursing homes that don’t comply with safety and other regulations.
Some patient advocates aren’t happy. They see this as a sign of a gradual erosion of protections for older Americans in long-term care.
“Over the last year, we have seen concerted efforts by the administration that we think have weakened the standards put into place to protect nursing home residents,” said Lori O. Smetanka, JD, executive director of The National Consumer Voice for Quality Long-Term Care, an advocacy group in Washington, D.C.
The New York Times reported that federal records show that 4 of every 10 nursing homes — nearly 6,500 in the United States — have been cited at least once for a serious violation since 2013.
This includes citations for harm to residents caused by neglect, mistreatment, accidents, and bedsores.
In a July memo, the Centers for Medicare and Medicaid Services (CMS) shifted how fines for these and other violations are applied.
One-time fines will be used for violations that started before an inspection occurred. Daily fines, though, are still recommended for major violations discovered during an inspection.
According to the New York Times, government records show that in recent years nursing homes have been fined on average $33,453.
Dr. David Gifford, the American Health Care Association’s senior vice president for quality, told the Times that daily fines were intended to encourage facilities to correct problems quickly.
But using daily fines for past violations didn’t make sense, especially if the problems had been fixed by the time inspectors noticed them.
Smetanka told Healthline that when their group compared what fines would look like before and after the July CMS memo, penalties imposed under the new guidance are often “significantly less.”
The Times gave an example of a long-term care facility that was fined $282,954 by CMS for failing to treat a patient’s wound caused by a pain-medication pump. The resident later died as a result of the infection.
This amount included a daily fine of $10,091 for 28 days. Under the new guidance, if CMS had given the nursing home a one-time fine, the total amount would have been less than $21,000.
Smetanka added that even before the new guidance, “there were already challenges with how facilities were held accountable.”
She said part of the problem is miscoding of violations.
“What we see is that about 95 percent of the penalties are considered ‘no harm,’” said Smetanka. “But when you look at the actual citations and read them, that shows a very different story in a number of the citations.”
Consumer Voice advocates for appropriate oversight of nursing homes. But Smetanka said that “facilities should only be shut down as a last resort, because the process of moving residents can be very damaging to a frail, older person.”
Other nursing home rule changes
CMS issued other memos last year regarding nursing home regulations.
One proposed rule would allow nursing homes to require residents to agree to settle disputes through arbitration rather than going to court.
And in November, CMS officials issued a memo that put an 18-month hold on fines for violations of eight new safety rules.
This includes rules intended to reduce the overuse of psychotropic medications, ensure adequate staff and training to help residents with psychological problems, and encourage appropriate use of antibiotics.
Nursing homes, though, are still required to follow all of these rules during the 18-month period. CMS can use other enforcement methods — other than fines — during that time.
“You’re still going to get cited on all of these. But CMS is going to give nursing homes feedback and opportunities to actually implement the regulations, without just fining homes for rules that are new,” Gifford told Healthline.
Gifford thinks part of the reason for the 18-month pause on fines is that these regulations have caused some confusion since they were released.
The 18 months will give nursing homes time to get up to speed with the new rules and also for CMS to work out any additional confusion.
Gifford said that after the 18 months have passed, “all indications are that CMS will reinstitute the fines.”
He also doesn’t think the temporary moratorium on fines for these eight regulations will have much of an impact on nursing home quality because the rules are still in place.
How to decide
For families, though, news stories about poor care at nursing homes only adds to the stress of choosing a long-term care facility for their parents or other relatives.
Consumer Voice has resources on its website to help people know what to look for in a nursing home and which questions to ask.
Community resources, such as the Long-Term Care Ombudsman Program, can also help with decision-making.
You can also talk to friends and neighbors to ask about their experiences with nearby nursing homes — keeping in mind that what is best for one person may not always work for another.
One of the best ways, though, is to see a facility in person. Smetanka recommends that you visit at different times of the day and week, check out mealtime, and talk to the residents, family members, and staff.
“It’s really important for individuals that are looking for long-term care to visit places that they are considering, to get a sense of what care and life is really like in that facility,” said Smetanka.