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A federal policy that dramatically limited financial penalties for nursing home violations for the last four years has been reversed, six months after AARP Foundation and a Washington-based law firm filed suit to end the practice.
The policy, instituted by the federal Centers for Medicare & Medicaid Services (CMS), had restricted monetary fines for certain nursing home violations to a maximum one-time amount of $22,320 — even if the violation had continued for months. The adoption of such “per-instance” penalties in July 2017 stopped state agencies that monitor nursing homes from recommending per-day fines of up to $22,320, in situations involving past noncompliance, regardless of how long the violation had lasted and how dangerous the violation was.
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The reversal comes after the coronavirus pandemic ravaged nursing homes and other long-term care facilities, taking the lives of more than 184,000 residents and staff members. Nearly a third of the more than 600,000 U.S. COVID-19 deaths have been in nursing homes, assisted living facilities and other long-term care settings.
AARP Foundation's case against CMS, which regulates more than 15,000 U.S. nursing homes, claimed the federal agency violated federal law, disregarded proper rulemaking procedures and endangered the lives of nursing home residents when it restricted some monetary fines starting in 2017.
According to the U.S. Government Accountability Office, 82 percent of surveyed nursing homes between 2013 and 2017 were cited for infection protocol violations. Before the 2017 policy change, the most serious violations could bring fines of up to $20,965 a day, according to the AARP Foundation, which helps defend vulnerable people over age 50 through legal advocacy.
In modifying its policy, CMS allowed nursing homes to treat penalties for past noncompliance as “a cost for doing business,” rather than see them as a motivation to quickly change or fix problems, said William Alvarado Rivera, senior vice president of litigation at AARP Foundation.