South Carolina Nursing Home Blog : South Carolina Nursing Home Lawyer & Attorney : Poliakoff & Associates Law Firm : Elderly Care, Senior Care

This is a good follow up to this morning entry about the failure of nursing homes to report incidents and the failure of regulatory authorities to investigate and prosecute most incidents.  McKnight's had an article about a new proposal that would cut penalties by 50%.  Ridiculous.

The newly proposed rule from the Centers for Medicare & Medicaid Services would reduce civil monetary penalties (CMP) issued against nursing homes by as much as 50%. To qualify for the reduced CMP under the rule, a nursing home would have to report a deficiency before it is discovered by either CMS or a state agency, and correct the deficiency within 10 days.

The penalty reduction would not apply in cases of immediate jeopardy, or in cases that are part of a recurring pattern of harm, according to the proposal. The new rule also would establish an escrow account where CMP would be held during any appeals process. In the event of a successful appeal, CMS would return the money with interest.

Currently, CMPs range from $50 to $10,000 per day of noncompliance, according to background information in the proposed rule. The rule was created in accordance with section 6111 of the Patient Protection and Affordable Care Act. CMS is asking for feedback on the rule, which was published Monday in the Federal Register. Comments are due by August 11.

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People always ask us why DHEC and other enforcement agencies don't fine facilities who neglect and abuse residents.  There is no one explanation.  Lack of enforcement tools.  Lack of qualified investigators.  Nursing home lobbying and campaign contributions.  Lack of media scrutiny.  I saw an article recently in the Journal Star discussing the limits placed on fines and the importance of monetary fines on quality of care and deterrence.  

The article starts with a simple proposition:  "When a nursing home resident's minor injury is left untreated and progresses to a major infection that ultimately kills her, the facility responsible should pay a stiff price.  When one resident beats another in a nursing home cafeteria because there's no staff member there to stop it, or when a male resident's catheter isn't checked and he gets a serious infection that still has him hospitalized, or when an octogenarian slides out of her wheelchair and is found dead with its seatbelt around her neck because nobody is watching, there ought to be fines that send a message that that's intolerable. And when a resident who takes a tumble complains of dizziness and head pain only to be told her problem will get checked out at an eye exam the next day, there ought to be strict accountability - especially when she ends up dying that next day."

That seems pretty straightforward and full of common sense but how do you decide what is a fair and reasonable fine?  Most states limit the amount of fines that a facility must pay.

A recent  ruling from a judge held that the Illinois Department of Public Health's is limited in fine amounts because State law appears to limit the fines the state can levy for these violations to $10,000 per incident.  The Legislature should amend state law to permit higher fines for abuse and/or neglect. The penalties must be severe enough that negligent nursing home operators will improve the conditions.

The article ends with some basic truths:  Most facilities are understaffed or suffering from burn out.  "Many homes don't staff above the minimal level required by the government, and the difference is often readily apparent. Adding to the problem is the high turnover rate in a workplace that can pay poorly yet require phenomenal dedication in bleak conditions. It's often worse in troubled facilities. It's a tough and trying job in the best of situations."

The residents of nursing homes are society's most vulnerable. They deserve a dignified and safe environment in which to live.   Increased fines, additional investigators, and improved staffing requirements would go a long way in providing the elderly and infirmed the care they need.

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