U.S. easing of nursing home penalties could imperil Minnesota's crackdown on elder abuse

The Trump administration is taking steps to roll back federal penalties on nursing homes violating health and safety rules, a policy shift that's alarming state officials and advocates for the elderly who say it could undercut Minnesota's emerging moves to crack down on violence and criminal abuse in senior homes.

In recent months, the federal Centers for Medicare and Medicaid Services (CMS) has directed its regional offices to ratchet back some Obama-era enforcement practices that the nursing home industry has found most onerous. The new directives are likely to reduce both the number and severity of monetary penalties, even for violations that lead to serious injury or death.

"This absolutely takes us down the wrong path," said Mary Jo George, associate state director of advocacy at AARP Minnesota and chairwoman of a new state work group on elder abuse. "It will make our work more challenging at a time when we are trying to take swifter action against facilities that are harming residents."

The policy shift represents a major victory for the nursing home industry, which has long denounced federal fines as inconsistent and too burdensome. In Minnesota, federal fines against the state's 380 nursing homes have totaled $2.1 million over the past five years. They more than tripled in the final years of the Obama administration, even as some measures of health and safety have improved, federal records show.

Yet advocates for elderly residents worry that, without daily penalties for recurring violations, nursing homes will have less incentive to correct serious deficiencies in care. The federal move also comes as Gov. Mark Dayton has pledged tougher action against elder abuse and has promised improvements to the state's troubled system for investigating and responding to allegations of maltreatment in senior homes.

A five-part Star Tribune series published in November chronicled multiple breakdowns in the state's handling of elder abuse cases. The series documented that hundreds of residents at senior care centers across Minnesota are beaten, sexually assaulted or robbed each year. Yet the vast majority of these incidents are never resolved, and the perpetrators go unpunished, in part because the state health agency lacks the resources to investigate them. Even when cases are investigated, they often drag on for months, undermining criminal prosecutions and frustrating families of abuse victims.

Responding to the series, Dayton appointed a working group to review state oversight of senior care homes and transferred some enforcement authority from the Health Department to the Department of Human Services, which has more resources.

Still, as elder care advocates point out, monetary penalties are just one tool in the regulatory toolbox, and states still have other ways to hold nursing homes accountable. States can, for instance, increase the frequency of regulatory surveys and impose non-monetary sanctions. The new directives also only apply to federally regulated nursing homes, not the state's roughly 1,200 assisted-living facilities, which have about twice as many residents as nursing homes.

"This throws a definite wrench in the efforts of states that are really trying to hold these facilities accountable, but there are other remedies available," said Lori Smetanka, executive director of the Washington-based National Consumer Voice for Quality Long-Term Care.

Dan Pollock, who took over as Minnesota's acting health commissioner last month amid complaints about the state's response to elder abuse concerns, has already launched efforts to reduce Minnesota's huge backlog of uninvestigated maltreatment cases. He plans to double the number of staff devoted to investigating maltreatment complaints, and reduce his agency's longtime reliance on cumbersome, paper records.

"Minnesota is working aggressively," Pollock said in a statement last week. "We need strong authority at the federal, state and local level to achieve these improvements and hold bad actors accountable."

Still, the federal system for imposing penalties has long been decried as dysfunctional and inconsistent, even among senior care advocates. States can impose penalties either by incident, capped at about $21,000, or on a per-day basis, which can quickly add up to a much higher number. As a result, nursing homes are sometimes hit with steep fines for relatively minor deficiencies that accumulate on a per-day basis. By contrast, more serious violations causing a patient's death or endangering multiple residents can result in fines of just a few thousand dollars.

A Star Tribune review of federal records shows that consequences can vary dramatically based on how the fines are imposed and that penalties often do not reflect the severity of the maltreatment.

In 2016, for instance, health inspectors faulted the Estates at Bloomington for failing to notify a physician about the development of a pressure ulcer for a single patient, according to a CMS inspection report. The sanction was imposed for every day the problem went unfixed, a total of 89 days, resulting in about $52,000 in penalties. A one-time penalty would have been capped at slightly less than $21,000.

A spokesman for Mankato-based Monarch Healthcare Management, which acquired the Estates at Bloomington last March, said the company has since retrained staff on procedures for contacting physicians, and said the facility has not been hit with any fines since the citation occurred.

That same year, by contrast, Walker Methodist Health Center in Minneapolis was cited with a smaller, one-time penalty of $9,700 for failing to provide emergency care for a patient whose heart had stopped and then died. In the Walker Methodist case, federal inspectors found the facility failed to ensure that its nurses were certified to provide cardiopulmonary resuscitation (CPR), a violation that could have endangered more than 50 residents, according to a 2016 inspection report by CMS.

Walker Methodist did not respond to requests for comment last week.

The fines have also been rising at a time when Minnesota's nursing home industry has made progress on several key federal measures of health and safety. In 2015, nearly one in eight nursing homes in Minnesota was cited for causing harm or jeopardizing the safety of residents; that's down from one in five in 2010. Over the same period, the average number of deficiencies cited per facility has declined by 15 percent, mirroring a national decline, according to a Kaiser Family Foundation report.

"It's unfortunate that while both regulatory compliance and quality measures continue to show improvement, the government appears to be using increased fines as a way to punish providers," said Doug Beardsley, a vice president at Care Providers of Minnesota, a trade association. "It diverts resources from patient care."

Under the new policy, CMS is discouraging state agencies from issuing per-day fines for violations that occurred before an inspection. Per-instance penalties, which tend to be much smaller, are now the recommended approach. The new guidance, outlined in a July memo, reversed the policy under the Obama administration, which preferred daily fines.

With little fanfare, CMS issued a second guidance letter in October also aimed at softening penalties. This time, the agency directed state survey directors to consider a number of variables, such as whether a violation was a "one-time mistake or accident" or was an intentional action, before imposing immediate sanctions. The new guidance marked a historic shift away from the automatic imposition of penalties for serious violations.

The Trump administration is also pushing to scrap an Obama-era rule that would have made it easier for nursing home residents to sue nursing homes for injuries caused by poor care and neglect.

Taken together, the policy changes represent a "dismantling of the federal enforcement system," said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy in Washington, D.C.

"The penalties are now likely to be so small that facilities will see them as little more than the cost of doing business," she said.