On 24 December 2017, the New York Times reported that the Trump administration was scaling back an Obama-era policy that ramped up the use of fines on skilled nursing facilities for actions that endangered vulnerable patients:
The Trump administration is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury, part of a broader relaxation of regulations under the president.
The shift in the Medicare program’s penalty protocols was requested by the nursing home industry. The American Health Care Association, the industry’s main trade group, has complained that under President Barack Obama, federal inspectors focused excessively on catching wrongdoing rather than helping nursing homes improve.
As would be expected, the Times report (which was published on Christmas Eve) resulted in a number of aggregated stories crafted to play up the outrage angle with sensational headlines reporting, essentially, that the president was going to kill Grandma on Christmas. Over-the-top wording as in this headline, “Trump Will Permit Abuse Of Elderly In Nursing Homes,” prompted readers to inquire whether the story was true.
Elder abuse is a crime, and that has not changed. However, the Trump administration did begin the process of rolling back an Obama administration policy that uses hefty fines as leverage against facilities that cause serious harm to patients. The Trump administration issued two Notices of Proposed Rule-Making (NPRMs) in May and June of 2017 which will reverse rules requiring the presence of a designated facility grievance officer to handle allegations of wrongdoing, and prohibiting nursing homes from requiring patients to sign pre-dispute arbitration agreements as a condition of admission. These changes do not mean that rampant, unchecked abuse will be allowed to take place, as some headlines have suggested however.
In November 2017, the Centers for Medicare and Medicaid Services (CMS) also issued a moratorium on a requirement that nursing homes develop a baseline care plan for new patients within 48 hours of admission, along with seven other requirements on things like behavioral health care, psychotropic medication and facility assessments.
The effects of the rollbacks are not yet known, but Toby Edelman, senior attorney for the Center for Medicare Advocacy, told the Times, “They’ve pretty much emasculated enforcement, which was already weak.” According to federal records reviewed by the Times, four in every ten nursing homes have been cited at least once since 2013 for a serious violations such as neglect, mistreatment and failing to protect residents from accidents and bed sores.
CMS put an 18-month moratorium on a requirement that nursing homes develop a basic care plan for new patients within 48 hours. This rule was put in place after the Health and Human Services Office of Inspector General found in a study published in 2014 that one in five Medicare patients experienced medical complications within an average 15 days of admission to nursing facilities, most of which were serious, preventable and resulted in millions in additional medical expenses billed to Medicare.
However in a memo to state health departments, CMS noted that the moratorium does not mean violation of requirements will result in no enforcement. Requirements that fall under the purview of the moratorium, like the baseline care plan, will simply be handled differently until the end of the moratorium period.
In a statement, Center for Medicare Advocacy policy attorney Dara Valanejad told us:
The Center for Medicare Advocacy is greatly concerned by the Administration’s actions rolling back the minimum standards of care set out in the Medicare and Medicaid Requirements of Participation. CMS should be protecting the rights of residents, who should be its primary focus, not referring to the nursing home industry as its “customer.” The minimum nursing home standards were implemented because there was an unmet need for urgent resident protections. For example, the HHS Office of the Inspector General (OIG) reported in 2014 that one in five residents experienced harm within the first month of admission (the average was 15.5 days) to a skilled nursing facility, 20 percent of these cases resulted in life-sustaining interventions or death, and 59 percent of these adverse events were “clearly or likely preventable.” The Baseline Care Plan, one of the Phase 2 Requirements that CMS placed an 18-month moratorium on, requires nursing homes to develop a basic care plan within 48 hours to address the type of problems that the OIG found. How can nursing home residents and their families feel safe knowing that such vital requirements, meant to protect them from harm, injury, or death, will not be properly enforced?
Per the Times report, the American Health Care Association sent a letter to then-President Elect Trump in December 2016 asking for “relief” from regulations and complained to CMS:
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.
We reached out to the AHCA for comment, but have not received a response.