Articles Posted in Legislation

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nursing home reform delay

Impact of Centers for Medicare & Medicaid Services (CMS) Decision to Delay Enforcement of Protections For Nursing Home Residents

On May 30 several State Attorneys General, including Illinois Attorney General Lisa Madigan, sent a joint complaint to Alex M. Azar II, Secretary of the U.S. Department of Health and Human Services and Seema Verma, Administrator Centers for Medicare & Medicaid Services and expressed extreme concern over the Centers for Medicare & Medicaid Services (CMS) actions to slow regulatory enforcements that support the safety and wellbeing for Medicare and Medicaid beneficiaries who receive care in nursing homes and long-term care facilities. In the letter, the Attorneys General are holding CMS responsible for not pushing forward a 2016 series of skilled nursing facility reforms that were set to move out in three future stages. The current administration’s delay will bring major challenges in holding facilities accountable for providing appropriate resident care and well-being.

“We write this letter to express our concern and to alert the Centers for Medicare & Medicaid Services (CMS) about the substantial and foreseeable detriment of CMS’ actions to delay enforcement of protections for Medicare and Medicaid beneficiaries who receive care in skilled nursing facilities (SNFs). The recent CMS guidance significantly decreases the protections in SNFs by rolling back reforms to improve the safety and wellbeing of nursing home residents. If allowed to proceed, recent regulatory changes will not only threaten the mental and physical security of some of the most vulnerable residents of our states, but also potentially create additional challenges for MFCU investigation and prosecution of grievances, violations, and crimes occurring in SNFs. We therefore urge you not to lower the level of regulatory oversight.”

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In the second part of our look back at the transformative and impactful 1987 Nursing Home Reform Act, we explore some other major aspects of the legislation in addition to the core rights of residents and responsibilities of facilities to ensure those rights are respected. The 1987 Nursing Home Reform Act was a part of the broader Omnibus Budget Reconciliation Act of that year. In going beyond the initial 1965 legislation that created Medicare and Medicaid, the 1987 Act laid out a series of principles that re-defined what it meant to provide care to the elderly and infirmed at nursing homes and long-term care facilities. In addition to the minimum standards of care that would give rise to later legislation at the federal and state levels, and the modern notions of a residents’ bill of rights, the Act also laid out the foundation of an enforcement network that, while still improving today, has evolved and become more robust over time relative to its nascent stages two decades ago.
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Current nursing homes laws and regulations on the federal level as well as the state level owe their genesis to the immensely important foundational laws that preceded them. The current laws and regulations continue to evolve and improve over time thanks to advocacy by watchdog and public interest groups, as well as other interested parties that fight for nursing home residents every day in legislatures, court rooms, and media. One tremendous law at the root of decades of efforts was passed by the United States Congress and signed into law by President Ronald Reagan in 1987.

It was called the federal Nursing Home Reform Act, which was part of the broader Omnibus Budget Reconciliation Act of 1987. The 1987 Act brought with it many vital reforms steeped in the overall principle that nursing home residents are entitled to their own bill of rights that requires them to receive a certain level of dignified and quality care such that they can enjoy a quality of life at the home. This also marked a significant moment in that the federal government took on a substantially greater role in governing nursing home care for the first time since Medicare and Medicaid were created by federal law in 1965, more than twenty years earlier.
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As the members of the baby boomer generation age and will undoubtedly create an increasing demand for health care, including at nursing homes and long-term care facilities, state governments and the federal government appear to be looking for ways to help regulate nursing homes and ensure more protection and safety for facility residents. This is especially important where so many nursing home owners are so focused on their bottom line that they are willing to cut overhead, which includes keeping staff at disturbingly low levels in order to save money, all the while overtaxing the existing aides with too much work. Such scenarios unfortunately can lead to abuse and neglect against patients, which also can occur even at seemingly normally staffed nursing homes.

As part of increased oversight, the federal government has given its review and rating process for nursing homes more teeth, and states in general have sought to find ways to strengthen regulations and come down harder on offending facilities or individual aides and staffers. Illinois’ push toward allowing nursing home residents to keep cameras in their rooms to surveil what goes on is one such example of trying to better protect residents. For months, Texas, which is also one of the worst states for nursing home quality care in the country, there has been a push to enact a bill that would make it much easier to close a nursing home if it is found to have multiple violations of the law or regulations. This is called the “Three Strikes Rule” bill.

The Details of the Law
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In the world of medical care and specifically nursing homes and long-term care facilities, the authority and resources of the federal and state governments to inspect and evaluate nursing home performance, quality of care, staffing levels, and overall compliance with relevant law and regulations, is paramount.

This keeps nursing homes honest, pushes them to hire and train staff appropriately, and to ensure that abuse is eliminated and that residents get the proper attention and treatment rather than have their health and lives risked by neglect. In recent news, and as we’ve discussed in this space numerous times in recent months, the federal government’s rating system was found to have been faulty, limited, and relied on unverified self-reported data from nursing homes when ranking them and evaluating them for consumers. Investigations and inspections are thus all vital parts of this effort, and the federal and certain state governments have ramped up efforts to meet this oversight obligation.

New Proposed Nursing Home Law
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We previously covered the goal of a Taxes lawmaker to institute a three-strikes rule that would require a nursing home or long-term care facility to shut down after it has at least three health or safety violations as determined by the state’s Department of Aging and Disability Services. State Senator Charles Schwertner from Georgetown, Texas has worked to gain support for this initiative, and recently proposed a bill that, if gathering enough legislative support and the signature of new Governor Greg Abbott, would require the Department of Aging and Disability Services to revoke the license of any facility that has three strikes. These violations or “strikes” would have to fall on separate days, and would be considered over the course of a 24 month time period, thus all three strikes would have to fall in the span of two years.

Understanding the Law

This bill was prompted by findings at certain nursing homes that failed to operate up to standards. One home, for example, lost its license as well as federal funding (presumably through Medicare and/or Medicaid) because it had a whopping “70 deficiencies” which included lack of cleanliness, as well as poor food quality, among other things. A local affiliate also conducted an independent investigation in which it discovered how Texas did not do what it was supposed to in “thousands of cases,” and that the state failed “to report allegations of abuse, neglect and exploitation to law enforcement within 24 hours . . . in more than 1,500 instances.”
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We have covered time and again the importance of government agencies, state and federal, in investigating the performance of nursing homes, reporting publicly on violations, putting homes on probationary status, and even shutting them where necessary. These agencies also will put facilities on performance improvement plans that require them to curb abuses, stop negligence, and improve living conditions and care plans for patients, or face the loss of their license to do business and thus closure.

While state health and aging agencies largely handle these matters, as well as the United States Department for Health and Human Services and the Centers for Medicare and Medicaid Services (CMS) for the federal government, it is also state attorneys general and the U.S. Attorney General that play important roles in holding nursing homes accountable. This can take the form of civil lawsuits to recover for misuse of federal or state funds, as well as even criminal charges for the very same or for heinous treatment of patients that amount to criminal violations.
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We previously posted on the importance of government agencies as well as advocacy and watchdog groups in keeping nursing homes and long-term facilities transparent, honest and law-abiding. Surveys, investigations either open or undercover, and the vetting and consideration of complaints of elder abuse from residents or loved ones are all important to this effort.

This reporting and investigatory structure is vital to keeping nursing homes honest and pushing them to improve quality of care to patients so that they may meet and exceed the standards set out by the law and regulations. In a report card released by a Florida-based advocacy watchdog group that reports on nursing homes around the country, the state of Texas was found to be the worst-ranked state in the entire United States, including all 50 states and the District of Columbia. The state of Illinois did not fare all that well in this comprehensive assessment, either. As far as Texas is concerned, however, the worst state in the union for nursing homes and long-term care facilities has at least one member of its state legislature demanding not just for better oversight or moderate crackdowns, but for threats of outright closure of homes that do not meet the proper standards.
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Just about a few months ago, we touched on a unique case in the Connecticut court system that made its way on up to the state Supreme Court. The case had to do with whether or not a private nursing home facility that served patients under the state’s care as well as prison parolees could qualify for protection under a legal doctrine called sovereign immunity. Sovereign immunity is a centuries-old legal doctrine that essentially protects the state from lawsuits of any type unless the government makes its eligible to be sued by individuals or any specific state under the Constitution or under the law.

Such immunity also may protect federal government officials from lawsuits in certain circumstances. One of the most common laws that grant standing to sue the federal government is the Federal Tort Claims Act. Sovereign immunity also exists on the state level, as states cannot be sued by individuals unless in situations where the states consents to such lawsuits. In Connecticut, for example, residents can sue for a violation of state constitutional rights, as well as for certain torts and injuries under various statutes.
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In the Commonwealth of Kentucky, there has been a proposal in the state legislature to create medical review panels that would be tasked with making findings regarding medical malpractice claims against medical providers, including those in nursing homes. These panels would review such malpractice claims and offer an opinion on the validity and efficacy of claims.

Yet Another Attack on “Frivolous” Lawsuits

The purpose of creating these panels would be primarily to combat “frivolous” or meritless malpractice lawsuits. Supporters point to potential positive outcomes with a reduction in meritless claims, namely attracting outstanding doctors and medical providers who would be more apt to work in a state where they are not under constant threat of malpractice suits. Though there is scant evidence that these changes actually provide those benefits.

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