Washington Watch
Reversing Trump's limits on fines
The Biden administration recently quietly reversed a controversial Trump administration policy that had limited the fines levied on facilities that endangered or injured residents at nursing homes. While the numbers of deaths have plummeted since the release of vaccines, inadequate staffing, protective equipment shortages and poor infection control remain significant concerns at most of the nation’s 14,000 skilled nursing facilities, advocates say.
The Trump policy favoring lower penalties was adopted in 2017, directing regulators at CMS, Medicare’s parent agency, to shift from fining a nursing home for each day it was out of compliance with federal standards. That relaxed policy reduced many penalties to a single fine, effectively lowering amounts from hundreds of thousands of dollars to a maximum of $22,000.
That shift, which had been pushed by the powerful nursing home industry lobby, was part of the much broader Trump administration’s rollback of government regulations across many business sectors. Many of the nursing homes cited for poor infection controls, failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores, are repeat offenders.
Larger fines act as a deterrent and are more likely to signal strong enforcement of the rules, Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, told the New York Times recently.
In July, without much notice, the Biden administration revoked the earlier guidance on the CMS website, saying it had “determined that the agency should retain the discretion at this time to impose a per-day penalty where appropriate to address specific circumstances of prior noncompliance.” Under the new rules, regulators can impose per-day or per-instance penalties.
Consumer groups had challenged the policy in a lawsuit last January, arguing the weakening of enforcement put residents at greater risk. The main trade group, the American Health Care Association and National Center for Assisted Living, (AHCA/NCAL) countered that fines levied on a per-day basis “only take precious resources” away from an already underfunded industry, especially during a crisis period.
Last year, a nursing home in Washington state, Prestige Post-Acute and Rehab Center at Kittitas in Ellensburg, Washington, experienced a major outbreak, where 52 residents and 43 employees were infected, according to a survey done by Medicare. Fifteen residents died. Federal regulators fined Prestige a total of $21,295 in March 2021 using the “per-instance” penalties rules. If it had been fined per day, that nursing home could have been penalized more than $600,000.
Let’s make it easier for people to find nursing homes
Despite Medicare’s long-running efforts to overhaul its website to make it easier for consumers to find and compare nursing home facilities, families still lack easy access to crucial Medicare immunization data that could help them pick the right facility for their loved one.
Medicare has a “Care Compare” website (https://www.medicare.gov/care-compare/) for consumers that it has spent years refining and regularly updating. Yet that’s not where the agency is posting vaccination numbers for residents and staff at individual nursing homes. Why make things easy? Instead, Medicare relies on a Covid019 data page, geared to researchers (https://data.cms.gov/covid-19/covid-19-nursing-home-data).
To make things work on the website, you need to scour a map for little red dots that represent nursing homes. There’s also a huge spreadsheet. But that’s not an easy task for most seniors, Harvard University health care policy professor David Grabowski told the Associated Press recently. “Having it buried in a spreadsheet is really frustrating,” he said, because access to the numbers are critical since there are wide differences among nursing homes and within nursing homes when it comes to vaccinations.
Grabowski’s analysis of Medicare data indicates that nationwide, about 78% of residents and 56% of staff completed their vaccinations as of late June. Medicare statistics reveal huge disparities between states. In Alaska, 91% of residents are vaccinated, but in Florida it’s 69%. Among hospital staffers, in Hawaii, 82% of staffers are vaccinated but in New York it’s 62% and in Louisiana, 43%. Obviously, staff vaccination rates are critical because infected workers can unwittingly bring the virus into a nursing home before that person develops symptoms. And within states and even within nursing homes in the same communities, there can be big differences. But one thing is clear – these can all be prevented with increased vaccinations.
The Associated Press asked Medicare’s parent agency, the Centers for Medicare and Medicaid Services (CMS), about the available data and the difficulties for seniors to find what they need, and the agency promised to make it more consumer-friendly and easier to navigate. But they gave no time frame, noting the vaccination data has only been available for about a month. CMS officials stopped short of agreeing to post nursing home vaccination rates on its Care Compare site. Maybe they’ll even get to it while the delta variant is raging?
What worries consumer advocates like Charlene Harrington, a professor at the University of California School of Nursing in San Francisco, is a false sense of security since the number of cases and deaths at nursing homes have plunged since the earlier part of the pandemic.
“Once the vaccines started being given out and the rates went down,” Harrington told the AP, “then I think the administration kind of forgot about nursing homes. So they really need to get on top of the situation.”
Ironically, Medicare already provides information on flu and pneumonia vaccination rates for individual nursing homes on its Care Compare site. So it’s unclear why they don’t do that for COVID-19 vaccination rates. Some states require nursing homes to post vaccination rates, but there’s no national requirement. It leaves seniors and their families with a vital question to answer: Do you want to live at, or go visit a facility that has a low vaccination rate?
Nursing homes: Shaky future?
Only 25% of nursing homes and assisted living communities are confident they can remain open for another year or more, according to a survey from AHCA/NCAL, the American Health Care Association and National Center for Assisted Living. The findings from the organization’s most recent survey of U.S. skilled nursing centers, assisted living communities and sub-acute centers and homes found:
More than half of nursing homes and close to half of assisted living communities said their organization is operating at a loss.
The top three costs facilities have incurred due to the pandemic are additional pay for staff, hiring additional staff and PPE (personal protective equipment).
Some 92% of nursing homes and 62% of assisted living facilities said the government-funded Provider Relief Fund has been helpful amid the pandemic.
Meanwhile overall, 143 closures or mergers occurred in 2020, with 1,670 projected in 2021.
Mark Parkinson, the president and CEO of AHCA/NCAL noted that while coronavirus cases are much lower than during the pandemic, facilities are still struggling to recover from the economic devastation the pandemic caused and he expects the industry facilities will continue to need federal government help to survive and thrive.
Also contributing to this column: Washington Post; AP; New York Times and Becker’s Hospital Review.
