- Trump Administration Proposes to Gut Health Care Rights, Particularly Targeting LGBTQ People
- Nursing Home Compare Inaccurately Reports Civil Money Penalties Imposed Against Nursing Facilities
- Nursing Homes, Medicaid Rates, and Campaign Contributions
The landmark Affordable Care Act (ACA) included an anti-discrimination provision – the Health Care Rights Law – otherwise known as Section 1557. This provision prohibits discrimination by certain health programs or facilities on the basis of race, color, national origin, sex, age or disability. Unfortunately, the Trump Administration recently released a proposed rule (not yet published in the Federal Register) that would make significant changes to the scope of Section 1557 and roll back important protections for groups that have historically faced discrimination in the health care setting.
A recent Health Affairs blog by Katie Keith provides a background on Section 1557, including related regulations and litigation, as well as a detailed summary of the proposed rule. Keith notes that the proposed changes would go beyond the Department of Health and Human Services Office of Civil Rights (OCR), the agency charged with enforcing Section 1557, and, among other things, “would remove explicit nondiscrimination protections for LGBT people by eliminating sexual orientation and gender identity from other HHS regulations.”
According to a statement by the National Center for Transgender Equality, the proposed rule “would eliminate all recognition by the Department of Health and Human Services of protections for transgender people under the Health Care Rights Law, erasing the progress made in ensuring the rights of all transgender people to equal and fair treatment. It also seeks to weaken civil rights protections for patients more broadly in a variety of ways by limiting how broadly HHS will enforce the law.” (For more information, see the Protect Trans Health website at: https://protecttranshealth.org/.)
The proposed rule would also weaken requirements for providing services to individuals with limited English proficiency (LEP) as well as certain notice requirements and enforcement mechanisms.
As our colleagues at Justice in Aging noted in a recent statement, this proposed rule fits a broader pattern of rolling back important protections for people facing discrimination:
To be clear, this proposed rule is part of a larger, strategic attack on the lives of LGBTQ and LEP older adults. The Department of Health and Human Services Office for Civil Rights (OCR), the same agency tasked with enforcing Section 1557, recently released a final “Conscience Rights” rule that allows providers to discriminate against transgender older adults and others on religious and moral grounds and changed the OCR mission statement to emphasize conscience and religious freedom. Meanwhile, the Department of Homeland Security’s proposed “public charge” rule would make it nearly impossible for LEP older immigrants to enter the U.S. or become permanent residents if they are not wealthy and use or might need Medicaid or help paying for Medicare, food or housing.
The rule is not yet final, and will go through a public comment period. But damage is already being done by fostering confusion, promoting discrimination, and discouraging transgender individuals from seeking health care. The Center for Medicare Advocacy will join our colleagues in fighting back against these retrograde harmful and disdainful policies.
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Public information about enforcement actions imposed and upheld against nursing facilities is inaccurate and limited, or missing.
The Center for Medicare Advocacy (the Center) analyzed whether the federal website Nursing Home Compare to determine if it accurately reports civil money penalties (CMPs) that were imposed against nursing facilities and upheld by Administrative Law Judges (ALJs). The Center identified 18 decisions by ALJs on nursing home cases in calendar year in 2018. These decisions address facilities’ appeals of deficiencies that were cited and CMPs that were imposed.
Information is inaccurate. The Center reviewed and compared the 18 nursing home decisions with the enforcement information reported on Nursing Home Compare. Three of the 18 decisions, which dismissed the facility’s appeal because no remedy had been imposed or the facility’s appeal was untimely or both, are excluded from this analysis. The analysis was conducted May 16-17, 2019.
The Center found a weak correlation between the deficiencies and CMPs cited in ALJ decisions and the deficiencies and CMPs that are included on Nursing Home Compare. For more than half the facilities, Nursing Home Compare does not include the CMP sustained by the ALJ. For only one-third of the facilities does Nursing Home Compare fully and accurately report the CMPs and deficiencies.
Of the 15 ALJ decisions that addressed enforcement actions, Nursing Home Compare reports that five facilities had no CMPs imposed at all in the prior three years, even though ALJs sustained CMPs in those five facilities, ranging from a $5,000 per instance CMP in one facility to a $66,000 per day CMP in another facility. (Nursing Home Compare includes the surveys whose deficiencies were discussed in the ALJ decision in three of the cases, but not in the other two cases where the surveys occurred in 2015 and 2016.)
For two facilities, Nursing Home Compare does not report the CMP and deficiencies upheld by the ALJ, but reports only a CMP related to a different survey.
For one facility, Nursing Home Compare includes the 2015 deficiency that was addressed in the decision, but not the CMP sustained by the ALJ.
For another facility, Nursing Home Compare reports the CMP, but not the 2017 survey report where the deficiencies were cited.
For another facility, Nursing Home Compare reports the CMP and the deficiencies, but, as discussed below, the ALJ’s earlier decision, which reduced the CMP, is not available on Nursing Home Compare.
Nursing Home Compare accurately reports the penalties that were upheld by ALJs and the survey reports addressed in the ALJ decisions in only five instances.
Information is missing. The list of ALJ decisions is itself incomplete. ALJ decisions are typically designated CR (for Civil Remedies) and are listed in ascending numerical order. The first CR decision in calendar year 2018 was dated January 5 and numbered CR5004. The last decision was dated December 19 and numbered CR5225. However, 54 CR numbers, nearly a quarter of the numbers between 5004 and 5225, are missing from the list. It is unknown whether ALJs issued decisions with those numbers and, if so, how many of those decisions reflect nursing home cases.
In one of the missing decisions, CR5064, an ALJ reduced the CMP from more than one million dollars to $26,373. We know about this decision only because in a later decision, CR5172 (Aug. 31, 2018), in which the ALJ denies attorneys’ fees to the facility’s attorneys, the ALJ briefly discusses why he reduced the CMP in his earlier decision.
In addition, at least two nursing home decisions in 2018 were designated ALJ Rulings, not CR. How many additional unreported ALJ Rulings addressed nursing home penalties is unknown.
Few decisions are reported. A third concern is how few ALJ decisions are reported. In 2008, there were 56 nursing home decisions; in 2009, 54 decisions. The small number of decisions issued in 2018 – 15 – has at least two potential causes, both of which support the finding that enforcement of federal standards of care has declined. First, there may be few decisions because the Centers for Medicare & Medicaid Services is imposing few CMPs. If no fine is imposed, facilities have no right to an administrative appeal. A second explanation may be that fines imposed by CMS are so small that facilities decide that the costs of appeal outweigh the benefits of appealing (that is, the possibility of reducing or eliminating the CMP). With the exception of the million dollar fine that was reduced to $26,373, the CMPs discussed in the ALJ decisions in 2018 were small – 12 of the CMPs were under $30,000.
Discussion. The information that is publicly available on Nursing Home Compare is limited and inaccurate and may mislead families into believing a facility has not been sanctioned, when it has. The information also supports the conclusion that the Federal Government is not fulfilling its “duty and responsibility” under the Nursing Home Reform Law (1987) “to assure that requirements which govern the provision of care in skilled nursing facilities . . ., and the enforcement of such requirements, are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys.”
 Upland Rehabilitation and Care Center v. CMS, CR5024 (Feb. 7, 2018).
 Lake Worth Nursing Home v. CMS, CR5054 (Mar. 23, 2018).
 Jordan Rau, “Trump Administration Eases Nursing Home Fines in Victory for Industry,” The New York Times (Dec. 24, 2017), https://www.nytimes.com/2017/12/24/business/trump-administration-nursing-home-penalties.html?searchResultPosition=1S; Toby S. Edelman, “Deregulating Nursing Homes,” Bifocal Vol. 39. No. 3, pp. 31-33 (Jan.-Feb. 2018), Https://www.americanbar.org/content/dam/aba/publications/bifocal/final-bifocal_39_3.pdf.
 42 C.F.R. §498.3(b)(13).
 42 U.S.C. §§1395i-3(f)(1), 1396r(f)(1), Medicare and Medicaid, respectively.
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As part of its investigative series on nursing home care in Florida, Naples Daily News (part of the USA Today Network) reports that the new Medicaid reimbursement system for Florida’s nursing homes, scheduled for full implementation in 2023, will increase reimbursement for some of the state’s most poorly performing facilities by millions of dollars while simultaneously reducing reimbursement for some of the state’s best performing facilities by millions of dollars. It reports that the nursing home industry made large campaign contributions to state legislators to support this new system and enjoyed “clout after contributions,” even as high quality facilities predicted these results and opposed the changes.
Naples Daily News’ analysis shows that “53 nursing homes that averaged two stars or fewer between 2013 and 2017 are projected to receive more money, an additional $25 million combined,” while one in four facilities with four or five stars in the federal rating system will together lose more than $15 million. The nursing home industry contributed more than eight million dollars over the four election cycles since 2012 and hired 26 lobbyists in nine firms to work on the legislation that changed the state’s Medicaid reimbursement system.
Naples Daily News focuses on Consulate Health Care, the largest nursing home chain in Florida and the sixth largest provider in the country. Consulate was founded in 2006 and is owned by the Atlanta-based private equity firm Formation Capital. Its 76 Florida facilities averaged 2.4 (out of 5) stars on Nursing Home Compare over a recent five-year period. Consulate contributed more than $1.3 million to state legislators “from its corporate office, management company and individual Consulate nursing homes” and “could see annual payment increases of more than $30 million combined” after the new reimbursement system is implemented. One of Consulate’s facilities, Consulate Health Care of Vero Beach, averaged 1.1 stars over the five-year period and “is projected to receive an additional $630,000 each year under the new system.”
Consulate has had a troubled regulatory history. In December 2017, in an “unprecedented” action, the state of Florida threatened to cancel the licenses of 55 Consulate facilities under a state law authorizing licensure action against all facilities in a corporation when one of its facilities faces strong regulatory action; the state had terminated two of Consulate’s nursing home licenses. The case against the chain was settled in April 2018 with an agreement that put eight Consulate facilities under a two-year improvement plan.
In May 2018, Naples Daily News reported, “Consulate nursing homes are designed to appear cash-strapped,” as the individual facilities are “essentially empty shells, they pay rent, management and rehabilitation service fees to Consulate or Formation Capital-affiliated companies.”
The Center for Medicare Advocacy supports a public reimbursement system that is consistent with, recognizes, and supports high quality of care. Naples Daily News documents the corrupting power of money that moves reimbursement policy in a contrary direction.
 Ryan Mills, “Neglected: Many of Florida’s best nursing homes lose under new funding plan,” Naples News (May 15, 2019), https://www.naplesnews.com/story/news/local/florida/2019/05/15/florida-nursing-homes-best-lose-while-worst-gain-new-medicaid-plan/3105517002/.
 Ryan Mills and Melanie Payne, “Neglected: Florida’s largest nursing home chain survives despite legacy of poor patient care,” Naples Daily News (May 31, 2018), https://www.naplesnews.com/search/%22Neglected:%20Florida’s%20largest%20nursing%20home%20chain%20survives%20despite%20legacy%20of%20poor%20patient%20care%22/.
 Christopher Guinn, “55 Consulate nursing home licenses spared in agreement,” The Ledger (Apr. 20, 2018), https://www.theledger.com/news/20180419/55-consulate-nursing-home-licenses-spared-in-agreement.
 Ryan Mills and Melanie Payne, “Neglected: Florida’s largest nursing home owner represents trend toward corporate control,” Naples Daily News (May 31, 2018), https://www.naplesnews.com/story/news/special-reports/2018/05/31/floridas-largest-nursing-home-owner-part-growing-national-trend/581511002/.
 One method to help achieve the Center’s reimbursement goal is enacting a medical loss ratio (MLR) for nursing homes, as Congress did in the Affordable Care Act for Medicare managed care. An MLR would place a cap on the amount of reimbursement that owners and operators could spend on administration and profits. The Center and the Long Term Care Community Coalition issued a joint statement on medical loss ratios for nursing homes, available at https://www.medicareadvocacy.org/medical-loss-ratios-for-nursing-homes-protecting-residents-and-public-funds/.
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