Nursing Home Attorney Weighs in on Fine Reductions

For a nursing home attorney,  among the most important concerns are justice and fair treatment of nursing home residents.  Recent changes in federal fines for nursing homes are an increasingly important concern for many nursing home attorneys, and millions of American families. 

Here at Nursing Home Abuse Center, here is our nursing home attorney’s take on what new policies related to nursing home fine reductions mean for Americans in nursing homes.

Changes in Nursing Home Fines

Since 2017, there have been significant changes in the administration of the Centers for Medicare & Medicaid Services (CMS).  These changes have alarming implications for nursing home residents, especially as the tone has changed toward protecting nursing homes above residents. 

CMS maintains a code of federal standards with which nursing homes must comply in order to receive federal funding, and to avoid federal fines.  The code of standards is in place to protect America’s vulnerable nursing home residents from dangerous and unhealthy nursing home conditions, such as:

• Unsanitary living areas
• Cluttered personal or common areas
• Infestation with vermin
• Inadequate medical access
• Use of outdated or faulty equipment
• Staffing with untrained or undertrained employees
• Any other present condition which places a resident at risk of harm

When CMS investigates a nursing home and finds the facility to be in violation of federal policies, they are authorized to issue fines.  The biggest change in recent CMS policies has been the way the fines are issued to nursing homes.  Under former administrations, the CMS typically issued a fine for each day the nursing home facility remained in violation of their policies.  Currently, the CMS issues a single, not daily, fine in about two-thirds of all cases.

Overall, the new policies seem gentler on the nursing home industry than they were previously.  For example:

• Nursing homes had an 18-month grace period before they had to comply with 8 new CMS policies established in 2016.
• The average fine is almost $13,000 less than it was in 2016.
• Smaller fines increased, but larger fines are now rare.
• The total amount of fines levied was about $13 million less from 2016 to 2017.

What is Best for Nursing Home Residents?

There is a tension between discouraging certain behaviors with penalties and fines and allowing nursing homes to function so they can continue to provide their vital service to residents.  The most important thing in this discussion is what is best for nursing home residents?

Is this overall reduction in fines good or bad for nursing home residents? Is it more important that CMS collect fines, or is it more important that the agency identify dangers in nursing homes and take action to stop them?

To a nursing home attorney passionate about the rights of nursing home residents, the most compelling statistic in this debate about reduced fees is this: though it is levying lower fines, CMS is issuing about 1.2 percent more individual citations to nursing homes per year.

More violations are being punished moderately under more stringent protective policies than they were before.  Previously, the daily fines were somewhat arbitrary and didn’t actually serve to protect residents.

Members of nursing home advocacy groups complain that retroactive issuance of fines actually did nothing to protect residents because a randomly scheduled inspection in June – that perhaps found a violation that had been ongoing since April – would be charged a fine for all the days in between.  An inspection performed on a different day would have an arbitrarily different fine.  More importantly, any harm that could have befallen the residents during that time is past.  The damage is already done.

If there were any injuries during that period, it’s not up to CMS to seek justice for the residents as a nursing home attorney would do.  The agency’s function is mostly preventative and regulatory.

Nursing Home Residents Have a Right to Live in Comfort and Safety

A nursing home attorney likely would rather see nursing homes have the budget to hire an extra registered nurse, to replace outdated equipment, or to organize an outing for residents.  Nursing home residents deserve a comfortable, safe, and healthy life. 

You can be sure the cost of government fines is not coming out of the CEO’s pocket.  It is coming out of the operating budget for the facility, and therefore is lowering the overall quality of life for residents.

To be clear, the fines for CMS penalties are not necessarily fines for conditions that have harmed residents, but they are also related to the conditions that represent potential jeopardy.  That is to say when nursing home residents are actually harmed, the CMS can punish the institution but won’t act to help the resident who was the actual victim of the violation.  That action is the role of the nursing home attorney and law enforcement.

Instead, CMS monitors and regulates deficiencies that could be a potential danger.  There are four levels of CMS policy deficiencies:

• Level 1 – No actual harm, but potential for minimal harm. A violation that has only minor potential to cause harm.
• Level 2 – No actual harm with a potential for more than minimal harm that is not immediate jeopardy. A violation with increased potential for minimal harm OR that results in minor discomfort with the potential to cause minor harm to residents.
• Level 3 – Actual harm that is not immediate jeopardy. A violation of CMS policies that caused actual harm to a resident that is no longer a risk for other residents. 
• Level 4 – Immediate jeopardy to resident health or safety. A violation that is an immediate danger to resident health or safety that requires immediate corrective action to avoid  serious injury, harm, or death

Types of Nursing Home Abuse

It is no use to be naive about the suffering that goes on in nursing homes.  The standards that CMS sets forth are designed to protect nursing home residents.  Despite the oversight and threat of penalty from this federal agency, nursing home abuse continues to occur at alarming rates.  Nursing home abuse can occur in many ways.  The most common types of abuse or neglect include:

Institutional-related abuse or neglect, such as:

• Improper staffing
• Unhealthy conditions
• Inhumane policies

It is important to remember that the majority of nursing home injuries arise from the negligence or abusive behavior from staff members flagrantly disregarding policies, procedures, and laws.  Examples include:

• Physical or sexual abuse
• Financial abuse
• Emotional abuse
• Medical neglect

It is, unfortunately, impossible to legislate away tragedies like these.  The unfortunate truth is that unscrupulous people can be attracted to work in nursing homes because of the access to vulnerable residents, and they will break the law if they think it is to their advantage. 

How a Nursing Home Abuse Attorney Can Help

If you suspect your loved one’s nursing home is an unsafe or abusive environment, it is best to contact a nursing home attorney right away.  An experienced attorney will be able to investigate your loved one’s experience to identify any past CMS violations or fines, as well as evaluating your loved one’s treatment at the hands of their caregivers to determine if that treatment indicates abuse or neglect. 

Systemic fines are one thing, but when your family’s peace of mind is shattered by nursing home abuse, the at-fault parties should be held responsible for the pain and suffering your loved one endured. 

If you have questions about your loved one’s experience in a nursing home, contact Nursing Home Abuse Center to learn more about your loved one’s legal rights.  Call us toll free at 1-800-516-4783, or fill out our online contact form to request a free attorney consultation. 

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Written By Meagan Cline

Meagan Cline is a professional legal researcher and writer. She lends her expertise to FNHA and our websites, including Birth Injury Guide and MedMalFirm.com.