The Centers for Medicare and Medicaid Services has added another weapon to its arsenal as it ramps up efforts to enforce nursing home safety and quality rules.
The agency decided that federal and state authorities may levy more fines against skilled nursing facilities when inspectors uncover health and safety deficiencies. Under a final rule published July 31, regulators are now empowered to concurrently fine providers on both per-day and per-instance bases.
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This tougher stance stems from the nursing home agenda President Joe Biden unveiled during the State of the Union address in 2022, which CMS has been implementing step-by-step since.
The nursing home staffing mandate the agency finalized in April is the highest-profile example. CMS also has demanded greater transparency of skilled nursing facility ownership and beefed up the Special Focus Facilities program targeting the poorest-performing nursing homes.
Under the latest policy, CMS and states can simultaneously impose fines on noncompliant nursing homes based both on specific instances and on the number of days providers are noncompliant. Per-day civil monetary penalties ranged between $120-$26,000, depending on the severity of the infraction, while per-instance fines ranged from $2,000-$26,000 last year, according to the most recent CMS standards.
Previously, per-day and per-instance penalties could not be imposed for violations identified during the same survey, and per-instance penalties could not be imposed concurrently for the same deficiencies. This was not strong enough to compel sustained improvements, CMS said in a news release July 31.
“These revisions will provide CMS flexibility in determining the mix and number of penalties in response to situations that put residents’ health and safety at risk and, therefore, encourage facilities to promptly correct and maintain lasting compliance with CMS’ health and safety requirements,” the news release says.
Like the rest of the Biden administration's nursing home improvement campaign, this new enforcement authority provoked a critical response from the industry.
"We are extremely disappointed in the civil monetary penalties (CMP) policy," American Health Care Association/National Center for Assisted Living President and CEO Mark Parkinson said in a news release July 31. "This is a clear indication of agency overreach."
Nursing homes should steel themselves for more fines, Jodi Eyigor, director of nursing home quality and policy for the trade group LeadingAge, wrote in an email.
“Regulation and enforcement is the easiest lever to pull, so they do it without addressing the underlying systemic issues of chronic underfunding and undervaluing of quality long-term care,” Eyigor wrote. “Higher staffing, better infection control, improved emergency preparedness — all of these initiatives are laudable, but the administration and CMS continue to pursue these goals in a shortsighted and reckless way.”
These concerns may be unfounded, largely because of longstanding shortcomings in nursing home oversight, said David Grabowski, a health policy professor at Harvard Medical School. For example, state regulators don't have enough surveyors to keep up with nursing home inspections, which means there are fewer reports that would lead to penalties, he said.
Collecting fines from deficient nursing homes also is not sufficient to promote better safety and quality, Grabowski said. CMS has other tools it can deploy in alongside financial penalties, such as suspending providers from Medicare and Medicaid or even ordering closures, but the agency rarely does so, he said.
And the federal government's nursing home enforcement strategy could change when a new president takes office in five months.
CMS has issued more fines under Biden than during President Donald Trump's tenure, suggesting a Trump victory may restore the previous status quo. While Vice President Kamala Harris, the Democratic nominee, is expected to maintain Biden-era policies in general, she has not detailed a plan for long-term care oversight.
“We remain hopeful that the next administration will be more willing to sit down with stakeholders early on, understand the data and the realities on the ground, and collaborate to enact meaningful change,” said AHCA/NCAL Senior Vice President of Government Relations Clif Porter, who will succeed Parkinson later this year.
