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Federal deregulation, lower fines for nursing homes concerning

| Apr 26, 2019 | Elder Law |

An important part of our practice at Chayet & Danzo, LLC, is to help to protect vulnerable Colorado seniors in nursing homes, assisted living and other kinds of long-term care facilities. To that end, we advocate for quality, safe health care services as well as the prevention of elder neglect and abuse of all kinds.

We counsel family members about signs of abuse or neglect and about legal remedies for elderly victims harmed or neglected in long-term care.

Federal oversight in decline?

In March, NPR published an article about shrinking federal fines for regulatory violations under the Trump administration. For example, the average nursing home fine for a federal health or safety violation is $28,405 as compared to $41,260 in President Obama’s last year in office.

In 2016 under President Obama, total nursing home fines were $127 million. By comparison, under President Trump for the year from April 2017 through March 2018, these fines totaled $114 million.

NPR explained that while Trump’s administration is assessing more fines, they tend to be lower because it is more often imposing “per instance” fines for each violation on a one-time basis. By contrast, under Obama, officials were instructed to emphasize “per day” fines that are assessed every day until the facility corrects the deficit. This practice raised fine levels overall and likely had more teeth as a deterrent.

NPR concluded that nursing home industry pressure likely influenced Trump to handle fines this way. NPR cited a Harvard public health professor as sharing the opinion that for larger nursing homes, smaller fines are an ineffective incentive to improve conditions.

Other protections weakened

Nursing home contracts historically included arbitration clauses that required residents to resolve legal claims against their nursing homes using private arbitration instead of through lawsuits in court to get their complaints publicly before juries or judges. These arbitration provisions were often embedded in long agreements in small type that residents signed as a condition of admission. Even if they read and understood the contract, few residents were likely to think they could negotiate to drop this provision.

Obama did not allow nursing homes to impose arbitration clauses, but Trump rescinded this rule. In addition, his administration issued a moratorium on penalties for 18 months for violations of new safety regulations.

Reportedly, the federal agency involved (the Centers for Medicare & Medicaid Services, or CMS) as well as representatives of the nursing home industry disagree with assertions that the changes will be negative for residents.

However, in a major op-ed from the Washington Post on March 25, Robert Gebelhoff asserted that these changes under Trump decrease nursing home accountability for substandard care. Gebelhoff cites one nonprofit that advocates for seniors as finding that Trump’s regulators have weakened oversight of “special focus facilities,” those nursing homes that received citations for “pattern[s] of serious infractions.”

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