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Taking Care of Our Seniors

MORE SENIORS NEED MORE CARE

In 2016, a report was issued that showed chronic understaffing in the nation’s nursing home and assisted living facilities. Also in 2016, Congress passed the Cures Act, which requires Medicaid agencies to launch electronic visit verification systems for personal care services. Medicaid spending on personal care services has skyrocketed in the last several years, from $2.3 billion in 2012 to $15 billion in 2015 according to a U.S. Government Accountability report issued in 2017.

Taken together, what these reports and statistics mean is that an unprecedented number of seniors need help with basic life functions, and are either in nursing home/assisted living settings or utilizing personal care services at home.

Another report issued in 2017—this one by the Health and Human Services’ Office of Inspector General—found that the Center for Medicare/Medicaid Services (CMS) is not doing enough to ensure cases of potential elder abuse or neglect get reported. Traditionally, Medicare has the following ways of applying penalties: (1) it can impose a specific fine for a particular violation; (2) it can assess a fine for each day a facility is in violation; or (3) it can deny payments for new admissions. The average fine assessed in recent years is $33,453, although a significant number of facilities have amassed federal fines of greater than $100,000. The question becomes whether the fines, even at the $100,000 total, are enough to dictate meaningful change, or whether they are merely considered a cost of doing business.

THE EFFECTS OF DE-REGULATION

During the course of 2017, several Obama-era regulations were rolled back. In June 2017, the ban on nursing home facilities requiring residents to agree to arbitration clauses in admission contracts was rescinded. Removing the ban restored the status quo ante, which was to allow nursing homes to condition admission to their facilities on a prospective resident agreeing preemptively to arbitrate a dispute. Giving up access to court for a dispute before even knowing what the dispute is presents problems at best, and issues of unconstitutionality at worst.

In October of 2017, CMS issued guidance which discouraged its regional offices from levying fines, specifically issuance of daily fines in favor of one-time fines.

In November of 2017, CMS issued another guidance which granted an 18-month moratorium on fines and penalties for enforcement of 8 new safety rules.

BIPARTISAN LETTER

In response to the 2016 and 2017 reports and the above roll-back of enforcement tools to address the issues found in those reports, Senators Klobuchar and Blumenthal and a dozen of their colleagues sent a letter to CMS in February 2018 urging it to reverse its guidances. The bipartisan letter sought to have the CMS utilize civil monetary penalties, or CMPs, as enforcement tools again, and to remove the 18-month moratorium on assessing fines for failure to comply with the 8 new safety rules.

CMS RESPONDS—A LITTLE

In October 2018, CMS proposed a rule that would allow the imposition of CMPs against nursing home staff and volunteers who fail to report reasonable suspicions of elder abuse or other illegal activities. In addition, the proposed regulation would allow a two-year exclusion from federal health programs for retaliating against individuals who report. CMS is able to impose CMPs against facilities, but the new rule would allow fines against staff and volunteers who fail to report abuse.

While this new regulation is not a direct response to the Senators’ letter earlier in this year, it is a step in the right direction since it at least allows CMS to impose CMPs in enforcement actions.

WHAT CMS NEEDS TO DO

Many states are beginning to take action to address the chronic understaffing issues and elder abuse and neglect reports coming out of nursing homes. What many believe is needed is federal leadership and guidance from CMS, not only in terms of renewed enforcement actions but also in terms of better regulations implementing the laws already in place.

CONTACT YOUR ATTORNEY

If you or someone you know has suffered elder abuse or neglect in a nursing home or care facility, contact Dave Thomas at The Thomas Law Firm for a free evaluation of your legal rights.

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Thomas Law Firm
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