By Reed Abelson, New York Times, July 28 2021
The Biden administration has quietly undone a Trump policy that severely restricted penalties imposed on facilities that violated safety standards.
As the Delta variant raises fresh concerns about the safety of the nation’s nursing homes, the Biden administration has quietly reversed a controversial Trump policy that had limited the fines levied on facilities that endangered or injured residents.
Deaths in nursing homes, which peaked at the end of last year, have plummeted since the introduction of the Covid-19 vaccines. They account for nearly a third of the U.S. pandemic’s overall death toll.
But inadequate staffing, protective equipment shortages and poor infection control remain concerns at the nation’s 14,000 skilled nursing facilities, advocates and some officials say.
And although 81 percent of nursing home residents are vaccinated, only 58 percent of workers are immunized, according to federal data, heightening the risk of outbreaks even among fully vaccinated elderly residents.
With the Delta variant driving the recent swell of cases, there are signs of a creeping uptick of infections in nursing homes, particularly among workers. The Centers for Disease Control and Prevention is also investigating the source of outbreaks in Colorado nursing homes where there may be low vaccination rates.
The policy favoring lower penalties, adopted in 2017 by the Trump administration, directed regulators at the Centers for Medicare and Medicaid Services to shift from fining a nursing home for each day it was out of compliance with federal standards. The relaxed policy reduced many penalties to a single fine, effectively lowering amounts from hundreds of thousands of dollars to a maximum of $22,000.
The shift — sought by the nursing home industry, a powerful lobby — was part of the Trump administration’s rollback of government regulations across many business sectors.
“It is the most obvious change the Trump administration made,” said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy. “It’s a much, much lower penalty amount.”
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, Ms. Edelman said.
With little fanfare, the Biden administration revoked the earlier guidance on the Centers for Medicare and Medicaid Services website in early July, 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 policy, regulators can impose either per-day or per-instance penalties.
Consumer groups had challenged the policy in a federal lawsuit in January, arguing the weakening of enforcement put residents at greater risk. The AARP Foundation, which filed the lawsuit along with the firm of Constantine Cannon, applauded the Biden administration’s decision. Citing the lawsuit, Medicare officials declined to comment.
The main industry trade group, the American Health Care Association and National Center for Assisted Living, said in a statement that fines levied on a per-day basis “only take precious resources away from an already underfunded industry, especially during an unprecedented time when nursing homes need every support to protect their residents.”
But critics of the Trump policy say it offered a mere slap on the wrist for nursing homes, even those at the greatest risk for harming patients and workers. A year ago, a nursing home in Washington State, Prestige Post-Acute and Rehab Center at Kittitas in Ellensburg, experienced a major outbreak, where 52 residents and 43 employees were infected, according to a survey conducted for Medicare. Fifteen residents died.
The facility failed to meet infection control standards for more than a month, according to the survey, inadequately screening employees who fell ill and were potentially infected. A cook who reported being symptomatic to her immediate supervisor was told to continue to come in, while other employees, including a nurse and aide, also kept working despite feeling sick. Employees described haphazard screening attempts.
Federal regulators fined Prestige a total of $21,295 in March 2021, using the system of “per-instance” penalties. If it had been fined per day, the nursing home could have been penalized more than $600,000.
Maureen McKinney’s husband, known as Buck, was one of the residents who died from the virus at the home in July 2020. “I was just horrified,” she said when she learned of the fine.
Ms. McKinney said she pushed state regulators for an investigation after witnessing testing delays and failures to isolate those who were sick, including when her husband’s roommate became ill. “I decided I was going to be relentless about it,” she said.
Prestige Care, which is headquartered in Vancouver, Wash., and operates facilities throughout the western United States, said it relied on regulators “to appropriately set and enforce the fines for instances when there are citations, and we work with them to address the issues they cite.”
The company added, “losing members of our community is difficult under any circumstance, and the Covid-19 pandemic has magnified our profound grief over the patients lost to the virus.”
When the Trump administration directed regulators to fine nursing homes on a per-instance basis, the policy became the norm, said Kelly Bagby, a senior attorney at the AARP Foundation. The lower fines were levied even in cases like at the facility in Washington State, where residents were found to be in what is called “immediate jeopardy,” at risk for serious harm.
“The corrosive effect of this change has to be underscored,” Ms. Bagby said.
Reed Abelson covers the business of health care, focusing on health insurance and how financial incentives affect the delivery of medical care. She has been a reporter for The Times since 1995.