People who live in nursing homes often have trouble speaking up for themselves, so the government has long spoken up for them. But the power of that voice is growing weaker under a new policy direction from the Trump administration.
The Centers for Medicare and Medicaid Services has maintained strict federal oversight of nursing homes in return for the Medicaid payments that cover most nursing home care. Sometimes this has meant fining centers that fail to protect vulnerable residents, then let too much time pass before fixing dangerous conditions.
Bill Lamb, executive director of Raleigh-based Friends of Residents in Long-Term Care, and other advocates for older people say that nursing corporations tend to look at fines as the cost of doing business, but they still want to reduce them.
"The regulations in a business environment are considered a restraint of trade," Lamb says. "What they want to say is, There's something fishy about that number. The reality is, they got dinged because they did something wrong."
President Trump's administration recently responded to nursing-home industry pressure, announcing changes that include a moratorium on imposing penalties in such areas as prescription of psychotropic drugs, access to behavioral health care, and a resident's baseline care plan, meaning a written assessment of the person's status upon entering the facility and plans for treatment.
"[The Centers for Medicare and Medicaid Services] will use this 18-month moratorium period to educate surveyors and the providers to ensure they understand the health and safety expectations that will be evaluated through the survey process," wrote David R. Wright, director of the CMS Survey and Certification group.
The decision departs from an Obama-era policy of levying heavier fines against nursing homes for violations that cause or could cause death or serious injury, called immediate jeopardy. In the last years of the Obama administration, these penalties increased from $50 million in 2014 to $90 million in 2016.
Kate Goodrich, director of clinical standards and quality at the CMS, offered this rationale for the change in a statement: "Rather than spending quality time with their patients, the providers are spending time complying with regulations that get in the way of caring for their patients and doesn't increase the quality of care they provide."
Throughout North Carolina, eighty-seven nursing homes were hit with a total of $3.4 million in fines, an average of about $40,000 per incident, in 2016, the most recent year for which totals are available. With more than four hundred nursing homes licensed in the state, that means about one in five facilities were slapped with fines in a single year.
"They can penalize them, they can disqualify the facilities from Medicaid or Medicare," says Steve Gugenheim, a Raleigh lawyer who specializes in nursing-home cases.
"In terms of a form of recoupment, or a penalty, it amounts to a slap on the wrist."
But it is, at least, a public slap on the wrist. As Gugenheim points out, people who research nursing homes for themselves or their relatives can get a clearer picture of a center's performance by checking penalties at nursinghomecompare.gov. That site provides consumers with a federal star rating system that allows them to get a tentative idea of a facility's quality.
In one example before the new policies took effect, federal authorities fined Longleaf Neuro-Medical Treatment Center—a nursing home in Wilson, about an hour's drive east of Raleigh—$243,407 during 2017 for failing to take adequate care of residents. Most of that amount stemmed from an incident in which a Longleaf resident—unnamed in records, though described by state investigators as having a "history of being paranoid" and suffering from hallucinations that he is "fighting demons"—walked out a malfunctioning alarm-equipped door, then ran away from the facility on May 18.
"The resident was found crossing the highway and running down the grassy median between the north- and south-bound lanes," a state report reads.
After a long internal and regulatory process, Longleaf installed new equipment and completed staff training designed to prevent future "elopements," as such walkaways are known.
Following another, similar incident, a Chapel Hill facility, Signature HealthCARE, was fined $127,340 in April after a resident walked away. In this case, though, the resident "eloped" not once, but twice in the space of a few minutes. Staff at the center had noted disorientation, confusion, and combative behavior from the resident.
After the confused, disoriented resident had been outside for about eight minutes, someone, perhaps a passerby, came inside and apparently alerted staff members. At that point, the nursing assistant brought the man inside by pushing him in his wheelchair.
Had either of these incidents happened under the Trump administration's new policy, the facility wouldn't have faced penalties. Reports of these sorts of incidents will still be investigated, but for at least eighteen months, the offending centers will neither be fined nor have the violations appear in public records.
The industry is pleased.
Last year, the American Health Care Association, a nursing-home trade organization, issued talking points for its members to use in an effort to reduce federal fines, called civil monetary penalties, or CMPs.
"Use of CMPs has skyrocketed, with surveyors using CMPs retroactively to punish providers instead of using them to correct behavior," the trade organization's suggested language reads. "These changes come at a time when skilled nursing sector quality is better than ever: staffing levels are increasing, rehospitalizations are decreasing, and [skilled nursing facilities] are doing better on metrics measured by CMS."
The incidents that draw fines are often rooted in failures in alarm equipment and/or a lack of training for staff. Remedying either costs money, a direction that some nursing homes avoid if it hurts the bottom line, Lamb says.
"The reality is, health care is a business," Lamb says. "A major part of quality has to do with staff and training and personnel costs. When you are in the business to make a profit, there are only a couple of ways you can cut costs. It's either in your building or in your personnel."