Dr. David Gifford, the American Health Care Association's senior vice president for quality, said daily fines were intended to prompt quick remedies but were pointless when applied to past errors that had already been fixed by the time inspectors discovered them.
"What was happening is you were seeing massive fines accumulating because they were applying them on a per-day basis retrospectively," Gifford said.
But 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.
In September 2016, for instance, health inspectors faulted Lincoln Manor, a nursing home in Decatur, Ill., for failing to monitor and treat the wound of a patient whose implanted pain-medication pump gradually slipped over eight days through a ruptured suture and protruded from her abdomen. The patient died.
CMS fined Lincoln Manor $282,954, including $10,091 a day for 28 days, from the time the nursing home noticed the problem with the wound until supervisors had retrained nurses to avoid similar errors. An administrative law judge called the penalties "quite modest" given the “appalling” care.
The fines were issued before the new guidelines took effect; if the agency had issued a one-time fine, the maximum would have been less than $21,000.
Lincoln Manor closed in September. Its owner could not be reached for comment, and his lawyer did not respond to an interview request.
Advocates for nursing home residents say that relaxing penalties threatens to undo progress at deterring wrongdoing. Janet Wells, a consultant for California Advocates for Nursing Home Reform, said the changes come as "some egregious violations and injuries to residents are being penalized — finally — at a level that gets the industry's attention and isn't just the cost of doing business."
In November, the Trump administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems.
Rodney Whitlock, a health policy consultant and former Republican Senate staffer, said health inspectors "are out there looking for opportunities to show that the nursing homes are not living up to some extremely tight standards." He said while the motivation for tough regulation was understandable, "the fines don't make it easier to hire people and doesn't make it easier to stay in business."
In June, CMS rescinded another Obama administration action that banned nursing homes from pre-emptively requiring residents to submit to arbitration to settle disputes rather than going to court.
"We publish nearly 11,000 pages of regulation every year," the agency's administrator, said in a speech in October. That paperwork is "taking doctors away from what matters most: patients."
Janine Finck-Boyle, director of health regulations and policy at LeadingAge, a group of nonprofit nursing homes and other entities that care for older people, said the group’s members had been struggling to cope with regulations.
"If you're a 50-bed rural facility out West or in the Dakotas," she said, "you don’t have the resources to get everything done from A to Z."
KHN’s coverage of these topics is supported by Gordon and Betty Moore Foundation, John A. Hartford Foundation and The SCAN Foundation
*Kaiser Health News is a nonprofit news service covering health issues. It is an editorially independent program of the Kaiser Family Foundation that is not affiliated with Kaiser Permanente.
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