On February 18, 2020, Seema Verma, the Administrator of the Centers for Medicare & Medicaid Services (CMS) published a blog post on CMS’s five part strategy to improve nursing home quality and safety. The focus of this post was on the second pillar of the initiative: enhancing enforcement. As Administrator Verma correctly states, “CMS bears the responsibility to develop and enforce quality and safety standards across the nation’s healthcare system . . . [e]very nursing home resident deserves to be treated with dignity and respect.”
To meet these duties, CMS has conducted a comprehensive review of the nursing home enforcement mechanism and has or is undertaking several changes to improve nursing homes nationwide. For instance, CMS has implemented additional enforcement remedies against so-called “late adopters” (nursing homes with high rates of inappropriate antipsychotic drug use) and is requiring state survey agencies to conduct at least 5 percent of their “off-hour” surveys (i.e., weekends) at facilities with extremely low registered nurse staffing based on payroll based journal (PBJ) data.
Unfortunately, Administrator Verma’s blog post also notes that CMS is taking a “hard look” at fines for noncompliance. According to the Administrator, there is a high level of variation and inconsistencies among states regarding the use of civil money penalties (CMPs). Administrator Verma indicates that CMS will be issuing new policies to reduce regional variation. LTCCC is concerned by this announcement due, in part, on previous changes to the CMP Analytic Tool which weakened enforcement of the nursing home standards of care by making per instance CMPs (a one-time fine) the default CMP instead of per-day CMPs (a fine for every day of noncompliance), as requested by the nursing home industry. Writing about this change, The New York Times stated that “the change means that some nursing homes could be sheltered from fines above the maximum per-instance fine of $20,965 even for egregious mistakes.”
While there may be regional differences in the use of financial penalties, LTCCC respectfully urges CMS not to remedy this variation by weakening enforcement penalties as was previously done by changing the CMP Analytic Tool. Facilities that voluntarily participate in the Medicare and/or Medicaid programs receive public funds for every day of a resident’s stay in exchange for providing care that meets or exceeds the federals standards. Thus, facilities must be held accountable to the public for every day of noncompliance. Only per day CMPs hold nursing homes accountable for each day that they fail to provide adequate care while receiving taxpayer dollars from the Medicare and Medicaid programs.
Lastly, Administrator Verma’s blog post notes that CMS has asked Congress for the authority to adjust the frequency of nursing home health inspections. LTCCC strongly encourages Congress not to grant CMS the authority to roll back annual nursing home inspections. CMS has previously indicated that, in order to focus on poorly performing nursing home, it would like to inspect so-called “top performing” facilities every 30 to 36 months (instead of annually as is currently required). However, numerous studies and reports indicate that residents at “top performing” facilities are not immune from experiencing abuse, neglect, and other forms of harm. According to a 2019 Government Accountability Office (GAO) report, more than 1 in 5 nursing homes considered “above average” and “much above average” by CMS have been cited for abuse in a single year.
Decreasing nursing home survey frequency is dangerous and creates more burdens for residents and families. LTCCC asks that CMS use the authority already granted under the federal Nursing Home Reform Law to properly adjust the frequency of health inspections. The Reform Law provides for a more flexible survey process by allowing state survey agencies to adjust the timeframe of nursing home inspections by six months as long as the statewide average is 12 months. If a nursing home has a poor record of care, surveyors can inspect that facility annually on a nine-month cycle. Likewise, if a nursing home has a strong record of care, then surveyors can inspect that facility annually on a 15-month cycle.
The initiatives identified in the CMS Administrator’s blog post are concerning. While CMS has implemented a few promising changes, our organization urges CMS to cease efforts that weaken or undermine the rights and protections of nursing home residents.
For more information about CMS’s proposal to reduce the frequency of nursing home inspections, please read out issue alert, Nursing Home Residents at Risk: Proposals to Reduce Survey Frequency for “Top-Performing” Nursing Homes are Dangerous.
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