AARP Speaks Out on Alarming Proposed Changes to Nursing Home Regulation

At Levin & Perconti we continuously monitor changes to current federal and state nursing home regulations in order to inform our clients of how those changes might impact quality of care. Recently we were pleased to see one of the most powerful lobbying groups in the country, AARP, voice concerns about regulatory actions of the Centers for Medicare & Medicaid Services (CMS) in a letter to the United States Senate Committee on Finance.

Not Enforcing the Rules

First, while in 2016 CMS issued a new regulation on the rules nursing homes have to follow in order to collect Medicare or Medicaid dollars, it has become clear that CMS is not enforcing that rule. The Department of Health and Human Services Office of Inspector General (OIG) issued an early alert in August 2017 that CMS has inadequate procedures to identify and report incidents of abuse or neglect to law enforcement. The OIG also found that in 2015 states received one-third more nursing home complaints than they had in 2011. “Unfortunately, these findings coincide with a disturbing trend of CMS actions to undermine federal oversight and enforcement of nursing home quality standards,” according to David Certner, Legislative Policy Director for AARP. As we know all too well from the experiences of our clients, a regulation only makes a difference if it is actually enforced.

Eliminating Some of the Existing Rules

Second, CMS appears to be trying to roll back safeguards that protect the rights of residents and families to hold nursing homes accountable for poor care. Currently, nursing homes that receive Medicare or Medicaid dollars may not include pre-dispute, binding arbitration agreements in nursing home admission contracts. CMS has proposed reversing that prohibition, which would in plain terms make it very difficult for residents to take a negligent or abusive facility to court. In a climate where privately owned nursing homes routinely put profits over people, litigation is often the only way to get justice for the residents they harm.

Third and perhaps most unsettling of all, CMS is also planning to make changes to regulations they have identified as “unnecessary, obsolete, or excessively burdensome on facilities.” The details of those changes are not yet public, but it is clear that the administration’s focus is on the profits of the facilities’ owners rather than the health, safety, and quality of life of nursing home residents.

We agree with the AARP. It is crucial that the CMS retain the regulations set forth in the new 2016 rule and implement and enforce them in a timely manner. Anything less will be a disservice to the roughly 1.3 million nursing home residents in our country.