Biden Administration Cracking Down on Nursing Home Safety
EXECUTIVE SUMMARY
The federal government is focusing on safety in nursing homes, particularly those owned by private equity firms.
- Staffing levels will be scrutinized.
- The use of psychotropic drugs is a key focus.
- Nursing homes should ensure strong compliance programs.
The Biden administration is promising an effort to improve safety and quality of care in the nation’s nursing homes.
The fact sheet1 foreshadows substantially stiffer oversight and harsher enforcement, says Howard L. Sollins, JD, shareholder with Baker Donelson in Baltimore. “Greater accountability of owners and operators is coming under the guise of transparency,” he says.
Nursing homes owned by private equity firms are targeted with a broadside claim their financial decision-making leads to “significantly worse” outcomes for residents, particularly associated with hospitalizations, ED visits, increased antipsychotic medication use, lower staffing rates, and more infection control deficiencies.
Changes and Enhanced Enforcement
Some of the initiative represents change, and some aspects represent enhanced enforcement of existing requirements, Sollins says. The fact sheet names three key elements: staffing, accountability, and transparency. These are intended to mean heightened focus, expectation, and enforcement to “crack down on bad actors.”
One example of a new initiative is the intention to support a study to identify and impose minimum staffing levels, Sollins says. Another example is the intention to accelerate phasing out rooms with three or more residents and to promote single-occupancy rooms.
Greater oversight and stronger enforcement will come from the $500 million investment in inspection and survey activities; overhaul of the Special Focus Facility program, with faster time frames raising the risk of termination from Medicare and Medicaid participation; and increasing use of per diem civil money penalties and a rate hike in per instance penalties up to $1 million.
From a patient care perspective, examination and reduction of the use of psychotropic drugs remains a key area of focus. From a compliance perspective, the White House anticipates greater expectations and accountability for owners and operators, embracing the concept of “minimum corporate competency,” with a particular focus on nursing homes owned by “private equity,” Sollins explains.
Greater transparency is identified with the CMS Nursing Home Compare website a key tool for informing consumers and others about ownership and operating history.
“Potential consequences for skilled nursing facilities include greater expense of increased numbers of staff in a competitive healthcare environment, greater risk of substantial fines and penalties (including termination), and increased pressure for capital investment in the face of underfunded reimbursement programs,” Sollins explains.
Any healthcare organization with a nursing home component should brace for this increased focus. “Take every opportunity to recruit, train, and retain a stable workforce; invest in quality improvement and compliance programs where issues and problems are self-identified, self-corrected, and addressed in way that enhances facility credibility in the survey and inspection process; and undertake a solid capital plan,” Sollins says. “All this should be coupled with a commitment to participate in nursing home trade associations to educate and advocate a collaborative relationship and adequate reimbursement for the facilities, residents, and staff.”
The government indicated it will issue a mandatory minimum staffing level for Medicare-participating skilled nursing facilities, says Drew Graham, JD, partner with Hall Booth Smith in New York City. Some states already use such requirements, but the federal rule will be new for other facilities.
“From a liability standpoint, there are certain risks associated with having a blanket rule, which is in large part why it has been so aggressively opposed by the nursing home community,” Graham says. “Risk managers should begin the process of involving a multidisciplinary group in determining their staffing levels, and documenting those decisions now. It will be useful to show how these decisions were made because, for instance, in some cases, the quality of the staff members may be more important than quantity.”
REFERENCE
- The White House. Fact sheet: Protecting seniors by improving safety and quality of care in the nation’s nursing homes. Feb. 28, 2022.
SOURCES
- Drew Graham, JD, Partner, Hall Booth Smith, New York City. Phone: (212) 805-3632. Email: [email protected].
- Howard L. Sollins, JD, Shareholder, Baker Donelson, Baltimore. Phone: (410) 862-1101. Email: [email protected].
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