Biden Administration reinstates stiff fines for nursing home safety violations

chairwheelnride-196x300The Biden Administration has ended another egregious health-related policy of its predecessor, reversing the leniency the Trump Administration gave to nursing homes in penalizing them for putting residents at risk or injuring them.

Regulators may now return to slapping owners and operators of problem facilities with mounting, costly daily fines, rather than giving them a single, much lower penalty assessed as if inspectors found a single instance of a violation, the New York Times reported.

This means the facilities again can be subject to hundreds of thousands of dollars in fines, versus a maximum, onetime $22,000 penalty.

The long-term care industry had lobbied Trump officials hard and successfully to slash fines levied on them when inspectors found they had failed to control infections and to protect residents “from avoidable accidents, neglect, mistreatment and bedsores,” the newspaper reported. Industry officials have insisted they are doing the best they can and that stiff fines only take away from them sums that they might invest in better care for residents.

Consequences of heeding industry 

But this and other steps favoring businesses over the people they are supposed to serve blew up as the Trump Administration conducted its shambolic oversight of a calamity in long-term care — the terrible toll the coronavirus pandemic took on frail, aged, and injured residents.

The pandemic claimed at least 184,000 lives in nursing homes and other long-term care facilities and the disease infected 1.3 million of the institutions’ residents and staff. As the infections raged, critics assailed Trump officials in the Centers for Medicare and Medicaid Services (CMS) for failing to adequately inspect facilities or to assist them and their health workers with emergency support, including basic personal protective gear and desperately needed coronavirus testing supplies.

Advocacy groups and federal watchdogs ripped Trump officials for heeding the industry’s pleas for less regulation and for allowing nursing home staff to be far too spare, over worked, under paid, and stressed to the max — all while owners and operators made financial moves to maximize their profits.

As the New York Times reported:

“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% of nursing home residents are vaccinated, only 58% 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.”

Getting nursing homes to comply with federal regulations on crucial safeguards for residents has never been easy — and it was even less so when the fines were eased, advocates for the vulnerable say.

The Government Accountability Office, one Uncle Sam’s top watchdog agencies, has criticized CMS and called for real action and reform on nursing home oversight, finding, for example, that federal inspectors had found infection control deficiencies in 82% of nursing homes between 2013 and 2017. The problems reoccurred in multiple years in too many of the homes, which also were not fined for them.

The New York Times noted that problem homes too often become repeat offenders, almost factoring in penalties as a cost of doing business and welcoming laxity in fines they get hit with. The newspaper reported how a facility with notable coronavirus harm benefited from regulators’ giving the proverbial slap on the wrist:

“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.”

In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them and their loved ones by neglect and abuse in nursing homes and other long-term care facilities.

The pandemic became a deadly way for the public to see the many unacceptable ways that nursing home owners and operators pursued profits at the expense of residents and their loved ones. The industry claims it did the best it could under dire and unforeseen circumstance. But even as taxpayers have dumped billions of dollars to shore up the needed facilities, where is the accountability for the debacle that occurred with them?

Critics love to slam malpractice lawyers and the civil justice system. But many nursing home residents and their families, struggling still with the consequences of the pandemic, are thinking hard if their best recourse may be lawsuits to seek justice for wrongs done to them.

Nursing home care, just to remind, is expensive, with the cost of a private, single-room in a facility averaging $102,200 annually. It seems as if facility owners and operators understand profitability and money. That means regulators may need to talk their language to get the vulnerable the care they deserve. Stiff fines may be a sad way to ensure promised performance on health basics. We have a lot of work to do to ensure the elderly, sick, and injured get safe, quality nursing home care.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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