Nursing Homes Given Relief from Financial Penalties by Trump Administration

During his campaign, now-President Donald Trump promised business owners that they would be able to operate with minimal government intervention if he were to be elected. Fast forward to today, when his Administration has essentially handed nursing homes a get out of jail free card, allowing them to face little, if any, financial punishment for all-too-common abuse and neglect of senior citizens. According to Kaiser Health News, federal records prove that 4 of every 10 nursing homes have been cited at least once in the past 4 years for neglect or abuse that is considered avoidable.

Trump Administration Proving to be Pro-Business, Anti-Elderly
Since President Trump’s election, the Centers for Medicare and Medicaid Services (CMS) have reversed their stance on an Obama-era ban on arbitration agreements in nursing home contracts. The ban was stalled by the nursing home industry in December 2016 and never went into effect in 2017 as planned. Instead, CMS, now under Trump’s authority, decided to abandon their fight for arbitration agreement bans, essentially giving nursing homes the idea that the Administration supports their use. As the nursing home abuse lawyers of Levin & Perconti have extensively covered in our Illinois Nursing Home Abuse blog, arbitration agreements force the elderly and their loved ones to give up their right to sue and are well-known by legal experts to favor the party attempting to enforce them. Arbitration agreements have been discussed in the news frequently in recent years, not only due to the fight over their use in nursing homes, but also because Wells Fargo attempted to use them to skirt lawsuits after opening false accounts using their customers’ names. As with many nursing homes, credit card companies and cell phone providers, Wells Fargo buried the arbitration clause in a lengthy customer agreement.

The second major reprieve handed to nursing homes by the Trump Administration was buried inside something that initially appeared to benefit nursing home residents. On November 28th, changes to the Centers for Medicare & Medicaid Services (CMS) Federal Requirements of Participation for Nursing Homes went into effect. These changes were the second phase of a 3 part improvement plan intended to strengthen regulations that would encourage better care of the 1.4 million adults living in nursing homes. However, alongside the new requirements that required positives changes, such as individualized care plans for every nursing home resident within 48 hours of admission, was an 18 month reprieve on following many parts of the new requirements. This means no fines will be levied against a nursing home for failing to comply with implementing a baseline care plan, new smoking regulations, and other parts of the phase 2 requirements.

The third change to be made under the Trump Administration is reduced financial penalties against nursing homes for many violations. This past New Year’s Eve, Kaiser Health News posted an article on their website entitled Trump Administration Relaxes Financial Penalties Against Nursing HomesThe Washington Post picked up the article, but it seems no other news outlet did.

In October, CMS notified state Survey Agency Directors (such as those at the Illinois Department of Public Health), that nursing home violations classified as a one-time error shouldn’t be fined. The Kaiser Health News article also addressed CMS’ July change to the application of daily fines for violations. This change discouraged state survey agency directors from applying these daily fines to mistakes that happened in the past and were corrected before state survey agencies become aware of them. Instead, they push for a one-time fine, which will likely result in an overall lesser payment by the nursing home. Kaiser Health News used a real-life example from a now-closed nursing home in Decatur to illustrate the drastic difference between assessing daily fines versus a one-time fine. The Decatur nursing home, Lincoln Manor, killed a patient by allowing her pain pump to perforate a stitch in her stomach for 8 days. Under the old rules, the nursing home was fined nearly $283,000, or $10,091 for the 28 day period in which nursing staff first discovered the mistake with the resident’s pain pump and the day they trained their nurses to avoid the same mistake in the future. With CMS’ new push for ‘one-time only’ fines, Lincoln Manor would have paid less than $21,000 for egregious neglect that ended up killing a resident.

Failing Those Who Deserve Better
Without considering those on the other end of these laws, allowing businesses to operate without extensive regulation seems like a good idea in theory. However, nursing homes should not be lumped in with money-making corporations such as banks, credit card companies and retailers.  The truth behind the nursing home industry is that many facilities are for-profit and are privately-held by investment firms and large nursing home chains, all of whom are aware that the potential for making money off the elderly is quite substantial.

In 2011, the first baby boomers turned 65, ushering in an era in which industry experts believe will create a surge in the demand for in-home skilled nursing care, nursing homes, and medical devices and products intended for the elderly. With 76.4 million baby boomers as of the 2014 census by the U.S. Census Bureau, nursing homes stand to be a valuable resource for so many of us with aging loved ones. Under the Trump Administration, however, it feels as though the emphasis is on protecting the bank accounts of those who run nursing homes and not the health, happiness, and lives of those we love.

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