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According to the Centers for Medicare & Medicaid Services (CMS), more than 95 percent of nursing home deficiencies are cited as “no harm.” In other words, less than five percent of all nursing home violations of health, safety, and resident rights standards are identified as causing any resident harm or placing a resident in immediate jeopardy. Given that “no harm” deficiencies all too often include cases of significant pain, humiliation, and suffering, it is not surprising that, in the rare instances when harm or immediate jeopardy are cited, they can involve extremely egregious cases of resident harm and abuse.

The accurate identification of harm is important because CMS rarely imposes any financial penalty for “no harm” citations. As a result, most deficiencies identified during inspections are not remedied through meaningful financial penalties. This means that, too often, facilities face no repercussion for substandard care, abuse, or neglect.

Unfortunately, this situation has been greatly exacerbated by a policy change that substantially decreases the likelihood that a nursing home will face a meaningful penalty, even for cases of serious abuse, neglect, or death. On July 7, 2017, CMS issued new guidance on the use of CMPs. When violations have been identified, CMS may impose CMPs for either the number of days a facility was not in substantial compliance with a standard of care (per day) or for each instance that a nursing home was not in substantial compliance (per instance). Prior to the Trump Administration, per day CMPs were the default.

The revision makes clear that CMS Regional Offices (ROs) are to use per instance CMPs for past noncompliance, for continuing noncompliance identified before the inspection, and for noncompliance identified at the time of the inspection. While the guidance authorizes per day CMPs for certain situations, these exceptions are limited in scope. The 2017 revision amounts to a reversal from per day CMPs to per instance CMPs as the new default.

The following table, using CMS data (as of October 2018), shows the shift to per instance CMPs. In 2015, there were nearly twice as many per day CMPs imposed as per instance CMPs. As of October 2018, those numbers have flipped, with about twice as many per instance CMPs as per day CMPs.

The New York Times reported, “the change means that some nursing homes could be sheltered from fines above the maximum per-instance fine of $20,965 even for egregious mistakes.” The shift to per instance CMPs appears to be a signal to nursing homes that, even when violations of health and safety are cited, the penalty will likely be a fraction of what was previously imposed. In fact, in a January 2018 newsletter, CMS stated that it “heard” the nursing home industry before discussing the new guidance and the shift “to a per instance CMP instead of per-day CMPs for past noncompliance.”  

The federal Nursing Home Reform Law states that the Secretary of Health and Human Services (HHS) has the duty “to assure that requirements which govern the provision of care . . . 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.” The shift to per instance CMPs undermines that essential mandate, and is a threat to resident safety and the appropriate use of public funds. CMS must cease the rollback of resident rights and protections.

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