The rules are changing yet again for nursing homes who have been negligent, and not for the better. On June 15th, the Centers for Medicare & Medicaid Services’s Safety, Quality, and Oversight group sent a memo to state survey agency directors telling them to lighten up on nursing home punishments. The theme of the memo seems to be more “keep things moving” rather than “fix things for the long run.” The new rules will go into effect on July 15th.
Prior to the new changes, nursing homes who had any health or safety violations were punished in accordance with federal guidelines. Now the decision of how and when to punish facilities is being put into the hands of CMS’ regional offices, with the exception of a handful of circumstances.
Enforcement of Punishments for Immediate Jeopardy Violations
Prior to the change, civil money penalties were always assessed for an Immediate Jeopardy violation. CMS describes these violations as “A situation in which the provider’s noncompliance with one or more requirements of participation has caused, or is likely to cause, serious injury, harm, impairment, or death to a resident.” Now, if the behavior in question did not cause harm (but easily could have), the state passes the information off to the regional office who can determine what the punishment will be. While a monetary penalty is still an option, it is not required and can be set aside in order to impose a different penalty, such as requiring the facility to submit and follow a correction plan.
There are several situations in which federal remedies (fines, denying Medicare/Medicaid reimbursement, forbidding admission of new residents, etc) must be immediately enforced, but for most serious issues, CMS asks surveyors to consider the odds that any incident was a one-time occurrence or mistake. If so, CMS advises getting the nursing home to fix the issue as quickly as possible so they can proceed with business as usual.
Punishments for Other, Non-Immediate Jeopardy Violations
For any other violation or deficiency that is not determined to be an Immediate Jeopardy situation, the state office can choose the punishment and can also make the decision to give the facility time to submit a plan of correction that details how they will fix the issue before doling out any sort of punishment.
Again, state surveyors are asked to consider the severity of the issue, the likelihood that it was a one-time mistake, and the past history of the facility.
Repeat Offenders May Never Change
Realistically, nothing in life is perfect. We realize that healthcare providers are human and mistakes can happen. However, when facilities with a history of providing poor, neglectful care are already being given the opportunity to fix issues before receiving fines, what will these lax new rules do?
Financial penalties imposed on those who own nursing homes have always been the one thing that elder advocates believe can actually spur positive change. Greed is the common thread between many chronically deficient nursing homes. Serious issues arise when facilities are understaffed, undertrained, and overworked, an old-as-time business model used by nursing home owners who know that using these tactics ensures higher profits.
So, if the most serious or potentially serious instances of neglect are now punishable by even weaker remedies, what incentive does this give nursing home management to change policies, demand more of themselves and their employees, and give the compassionate care that was promised to your loved one?
If someone you love has been the victim of abuse or neglect in a nursing home, the Chicago, Illinois law firm of Levin & Perconti can demand answers and get justice. For nearly 30 years we’ve successfully represented families like yours against major nursing home chains and smaller, independent facilities alike. Call (312) 332-2872 or complete our online case evaluation form for a FREE consultation with one of our nursing home abuse and neglect attorneys.