Biden Reinstates “Per Day” Penalties for Nursing Home Safety Violations

The Biden administration has reversed a Trump-era policy which severely limited the amount of fines that could be levied against nursing homes for violating safety and care standards.

Last month, the U.S. Centers for Medicare & Medicaid Services announced it was revoking guidance put in place in July 2017 which limited nursing home fines to a per-instance basis. This resulted in the removal of daily fines for facilities which remained out of compliance.

The original guidance issued by the Trump administration was part of a large number of regulatory rollbacks, effectively limiting the finds in cases of nursing home neglect and other violations to $22,000.

Before the guidance went into effect, nursing homes that were out of compliance could build up fines of hundreds of thousands of dollars, since the penalty accumulated every day they remained out of compliance. Now, the per-day fines are being reinstated, though the CMS notes that the agency retains the discretion as to when the per-day fines should be enforced.

Issues of how much nursing homes should be fined became a more important amid the outbreak of the COVID-19 pandemic. A lack of appropriate staffing levels and proper infection controls are being blamed for massive, nationwide outbreaks among nursing home populations and staff. Some estimates indicate fully one-third of all COVID-19 infections occurred among elderly nursing home residents at the height of the pandemic.

Nursing Home COVID-19 Concerns

A survey released in June found that 94% of nursing home facilities and 81% of assisted living facilities saw staffing shortages within the last month, which was defined as not being able to fill all of the shifts without the facility requesting staff to work overtime or extra shifts to cover vacancies.

The U.S. Centers for Disease Control and Prevention published a study in September, which highlighted a link between COVID-19 and nursing home quality of care, indicating facilities which scored better in federal ratings have been less likely to experience severe outbreaks at their facilities. New York Attorney General Letitia James’ investigation into 20 nursing homes in New York resulted in similar conclusions.

A report released in January by James highlighted a number of failures by long-term care facilities and state regulators, which contributed to the high number of COVID-19 deaths at nursing homes in the state last year. Specifically, the report indicated New York nursing homes with lower pre-pandemic staffing ratings had a higher number of fatalities during the pandemic, when compared to facilities with sufficient pre-pandemic staffing rates.

As a result of New York’s elevated number of nursing home deaths, State Governor Andrew Cuomo signed the Standard Minimum Nursing Home Staffing Levels bill (A7119/S6346) this month, which will require nursing homes to maintain minimum staffing requirements or be subject to civil penalties.