Federal laws and regulations are meant to protect nursing home residents and provide for a minimum level of care. These rules form the basis for enforcement actions against nursing homes who fail to follow the rules that can include their suspension or removal from the Medicare and Medicaid programs.
However, the Trump Administration is taking steps to weaken these rules in a way that would put infirm nursing home residents at the mercy of the nursing homes that do everything they can to increase their profits at the expense of the residents that they are supposed to care for on a daily basis.
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Reducing Nursing Home Staffing Levels During Covid Pandemic
The Centers for Medicare Services proposed a series of rule changes in July 2019 that are still pending. Seema Verma is the director of CMS and she has a long history of promoting rules that are friendly to the industry all in the name of innovation. These particular rules seek to make widespread changes in vital areas that are critically important to the safety and welfare of nursing home residents. Had these rules become effective before COVID-19 hit nursing homes, residents would have been in even more danger than they already are now.
There are very few aspects of nursing home life that would be untouched by these proposed new rules. In fact, the main basis for the proposed rule changes is not that they would help residents and make the nursing home a safer place for them. Instead, the regulations would save the nursing home industry roughly $600 million each year.
Putting Economics Over Nursing Home Patient Safety
However, these savings would almost directly come at the expense of the elderly and sick who depend on nursing homes since these savings would be from care expenses that the facilities incur. When the industry is already cutting back staffing to bare-bones levels, it is difficult to envision how nursing homes will have enough personnel on hand to provide the care that their residents need.
The Administration views these rules as a “burden” that hurts the business prospects of the nursing home industry. Even with these rules in place, roughly 20 percent of the country’s nursing homes receive the lowest possible quality rating on their annual inspection. A large proportion of these low-quality nursing homes are fined for specific actions that have placed nursing home residents in physical jeopardy.
It Would Now Be Easier to Prescribe Antipsychotic Medications
There are numerous places where CMS is trying to change rules to the detriment of nursing home residents. One of these proposed rules changes would make it easier for doctors to prescribe antipsychotic medications. Usually, prescribing these medications is subject to tight restrictions and doctors must consider alternatives before prescribing them.
The prescription is also limited to a certain amount of time before doctors must reassess whether the resident should still be receiving these drugs. However, the new rule allows prescriptions for these drugs to extend past 14 days. CMS proposed this rule change because it wanted to help nursing homes in small rural areas who may not be able to obtain the services of a mental health professional to conduct a reevaluation.
Nonetheless, in their desire to help a small subset of nursing homes, these rule changes place an entire population of nursing home residents at risk for being prescribed these powerful drugs unnecessarily.
The Position of Infection Preventionist Would Be Eliminated
In addition, the rule change seeks to undo certain Obama Administration rules that increased the level of care in skilled nursing facilities. One proposed rule change was to eliminate the position of infection prevention that the previous rules required. Nursing homes are required to have a person in charge of an infection control program. Of course, this regulatory rollback looks to be a case of poor foresight, especially in light of the impact of COVID-19 on nursing home populations.
Nursing Home Have More Leeway to Conduct Staffing Assessments
One of the major areas that impact the quality of nursing home care is staffing. Nursing homes often make a conscious attempt to lower staffing levels in order to inflate their profits. In 2016, there was a new rule that required nursing homes to conduct an evaluation of the entire facility to determine the resources that are necessary to operate the nursing home, including staffing.
Under the old rule, nursing homes had one year to complete this evaluation. Now, CMS seeks to lengthen this period to two years. This makes accommodation for nursing homes in an area where many of them have been lacking.
The Rules Would Restrict Grievance Rights
In addition, CMS also seeks to make rule changes that will make it more difficult for residents to invoke their right to file a grievance. They will allow nursing home personnel to resolve these issues on their own in more instances, leading to an erosion in the number of cases where residents can seek to vindicate their own rights. The proposed rules make it much more difficult for residents to initiate the grievance process. It treats a greater amount of resident concerns as complaints as opposed to grievances which reduce a resident’s right to be heard in a more formal setting.
These proposed regulations are several steps in the wrong direction. While the outbreak of coronavirus in nursing homes is tragic, the hope is now that CMS will either realize the folly of these rule changes before it finalizes them or that their proposed rules are insufficient to withstand a lawsuit if someone sues over them. In any event, the level of malfeasance from nursing homes that we continue to see should merit more regulation instead of less.