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Nursing homes can be penalized through the imposition of a civil money penalty (CMP) for either the number of days that the facility has not been in compliance with a federal requirement (per-day) or for each instance of noncompliance (per-instance). Responding to requests from the nursing home industry, the Trump Administration rolled back previous guidelines to set per-instance CMPs, rather than per-day, as the default penalty. In 2017, The New York Times reported that the roll back means “some nursing homes could be sheltered from fines above the maximum per-instance fine of $20,965 even for egregious mistakes.” A follow-up article published by NPR now shows that the roll back has resulted in the average fine dropping from $41,260 in 2016 to $28,405.

According to NPR, the reduction in the average fine comes despite a 28% increase in the total number of financial penalties. This discrepancy can be explained by the fact that the maximum dollar amount for a per-instance penalty is capped (around $21,000 in 2018), whereas per-day CMPs can accrue for days, weeks, and even months. The article adds that the average per-instance CMP under the Trump Administration is below $9,000. As Toby Edelman, Senior Policy Attorney at the Center for Medicare Advocacy (the Center), told NPR, “[t]hese are multimillion-dollar businesses — $9,000 is nothing.”

The Center and other consumer advocacy groups have been working to oppose the Trump Administration’s efforts to roll back nursing home resident rights and protections, including opposing the switch to per-instance CMPs. NPR notes that critics of the policy change argue that reducing the impact of nursing home penalties gives “nursing homes less incentive to fix faulty and dangerous practices before someone gets hurt.”

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