Stiffer Penalties for Nursing Home Health and Safety Violations Restored

"We entrust these facilities with our loved ones. We expect that they're going to be well taken care of,” Rivera said. “And in the absence of strong enforcement, the nursing facilities really have a lot less of an incentive to do everything that they should be doing in order to protect their residents."

Though the reversal has not been publicized by CMS, the revision to its civil money penalty policies appears on its website. “Upon further consideration, CMS has 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,” the summary reads. The previous guidance was “rescinded effective 7/19/2021,” according to the guidance page of the U.S. Department of Health and Human Services’ website. 

“CMS ensures that nursing homes meet an essential level of safety and quality of care to protect Medicare/Medicaid beneficiaries from abuse, neglect, exploitation, inadequate care or supervision,” a CMS spokesperson wrote in an email. “These long-standing standards are always in place, and we hold nursing homes accountable for meeting these requirements. … Nursing homes have the primary responsibility for the health and safety of their residents.”

The American Health Care Association/National Center for Assisted Living, which represents long-term care providers, said that a return to stiffer nursing home penalties is not the answer. “Per-diem penalties 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,” the emailed statement said.

Lives might have been saved

The need to maintain health and safety standards in long-term care facilities has long been recognized, gaining teeth with the Nursing Home Reform Act of 1987. The CMS policy to limit penalties undercuts enforcement of the law, attorneys who filed the lawsuit say, which became glaringly problematic during the coronavirus pandemic.

"By returning to meaningful penalties for noncompliance, CMS is incentivizing nursing facilities to correct problems before they lead to a similar disaster,” said Henry Su, cocounsel in the complaint.

AARP Foundation and Constantine Cannon LLP, the Washington-based firm where Su works, filed the lawsuit in the U.S. District Court for the District of Columbia in January, on behalf of the National Consumer Voice for Quality Long-Term Care and California Advocates for Nursing Home Reform. The complaint came two years after AARP wrote to CMS seeking to stop the penalty limits.

Patricia McGinnis, executive director of the California advocacy group, is grateful that the federal agency reversed its course, but she wonders how many lives lost to coronavirus might have been saved if CMS had stuck to its stiffer penalty policies all along.

"Thousands of nursing home residents have died from COVID-19 in nursing homes over the past year in facilities that have had years of uncorrected infection control deficiencies because CMS failed to ensure adequate safety and meaningful accountability,” she said. “CMS's reversal of their policy of restricting monetary penalties for facilities that violate federal health and safety laws will reduce the risk of harm to vulnerable residents everywhere."

Jessica Ravitz is a contributing writer who covers nursing homes and human-interest stories. She previously wrote for CNN Digital and The Salt Lake Tribune, and her work has also appeared in Smithsonian magazine, The Washington Post and The Atlanta Journal-Constitution.  

Editors Note: This article, originally published July 29, was updated to include a quote from the CMS.