Trump administration eases penalties against negligent nursing homes

Reversing guidelines put in place under former President Barack Obama, the Trump administration is scaling back the use of fines against nursing homes that harm residents or place them in grave risk of injury.

The shift in the Medicare program's penalty protocols was requested by the nursing home industry. The American Health Care Association, the industry's main trade group, has complained that under Obama inspectors focused excessively on catching wrongdoing rather than helping nursing homes improve.

"It is critical that we have relief," Mark Parkinson, the group's president, wrote in a letter to then-President-elect Donald Trump in December 2016.

Since 2013, nearly 6,500 nursing homes — 4 out of every 10 — have been cited at least once for a serious violation, federal records show. Medicare has fined two-thirds of those homes. Common citations include failing to protect residents from avoidable accidents, neglect, mistreatment and bedsores.

The new guidelines discourage regulators from levying fines in some situations, even when they have resulted in a resident's death. The guidelines will also probably result in lower fines for many facilities.

The change in policy aligns with Trump's promise to reduce bureaucracy, regulation and government intervention in business.

Dr. Kate Goodrich, director of clinical standards and quality at the Centers for Medicare & Medicaid Services (CMS), said in a statement that unnecessary regulation was the main concern that health care providers raised with officials.

"Rather than spending quality time with their patients, the providers are spending time complying with regulations that get in the way of caring for their patients and doesn't increase the quality of care they provide," Goodrich said.

But advocates for nursing home residents say the revised penalties are weakening a valuable patient safety tool.

"They've pretty much emasculated enforcement, which was already weak," said Toby Edelman, a senior attorney at the Center for Medicare Advocacy.

Medicare has different ways of applying penalties. It can impose a specific fine for a particular violation. It can assess a fine for each day that a nursing home was in violation. Or it can deny payments for new admissions.

The average fine in recent years has been $33,453, but 531 nursing homes amassed combined federal fines above $100,000, records show. In 2016, Congress increased the fines to factor in several years of inflation that had not been accounted for previously.

The new rules have been instituted gradually throughout the year.

In October, CMS discouraged its regional offices from levying fines, even in the most serious health violations, if the error was a "one-time mistake." The centers said that intentional disregard for residents' health and safety or systemic errors should still merit fines.

A July memo from CMS discouraged the directors of state agencies that survey nursing homes from issuing daily fines for violations that began before an inspection, favoring one-time fines instead. Daily fines remain the recommended approach for major violations discovered during an inspection.

Dr. David Gifford, the American Health Care Association's senior vice president for quality, said daily fines were intended to prompt quick remedies but were pointless when applied to past errors that had already been fixed by the time inspectors discovered them.

"What was happening is you were seeing massive fines accumulating because they were applying them on a per-day basis retrospectively," Gifford said.

But the change means that some nursing homes could be sheltered from fines above the maximum per-instance fine of $20,965, even for egregious mistakes.

In September 2016, for instance, health inspectors faulted Lincoln Manor, a nursing home in Decatur, Illinois, for failing to monitor and treat the wound of a patient whose implanted pain-medication pump gradually slipped over eight days through a ruptured suture and protruded from her abdomen. The patient died.

CMS fined Lincoln Manor $282,954, including $10,091 a day for 28 days, from the time the nursing home noticed the problem with the wound until supervisors had retrained nurses to avoid similar errors. An administrative law judge called the penalties "quite modest" given the "appalling" care.

The fines were issued before the new guidelines took effect; if the agency had issued a one-time fine, the maximum would have been less than $21,000.

Lincoln Manor closed in September. Its owner could not be reached for comment, and his lawyer did not respond to an interview request.

Advocates for nursing home residents say that relaxing penalties threatens to undo progress at deterring wrongdoing. Janet Wells, a consultant for California Advocates for Nursing Home Reform, said the changes come as "some egregious violations and injuries to residents are being penalized — finally — at a level that gets the industry's attention and isn't just the cost of doing business."

In November, the Trump administration exempted nursing homes that violate eight new safety rules from penalties for 18 months. Homes must still follow the rules, which are intended, among other things, to reduce the overuse of psychotropic drugs and to ensure that every home has adequate resources to assist residents with major psychological problems.

Rodney Whitlock, a health policy consultant and former Republican Senate staffer, said health inspectors "are out there looking for opportunities to show that the nursing homes are not living up to some extremely tight standards." He said while the motivation for tough regulation was understandable, "the fines don't make it easier to hire people and doesn't make it easier to stay in business."

In June, CMS rescinded another Obama administration action that banned nursing homes from preemptively requiring residents to submit to arbitration to settle disputes rather than going to court.

"We publish nearly 11,000 pages of regulation every year," the agency's administrator, Seema Verma, said in a speech in October. That paperwork is "taking doctors away from what matters most: patients."

Janine Finck-Boyle, director of health regulations and policy at LeadingAge, a group of nonprofit nursing homes and other entities that care for older people, said the group's members had been struggling to cope with regulations.

"If you're a 50-bed rural facility out West or in the Dakotas," she said, "you don't have the resources to get everything done from A to Z."




Warren Buffett explains what’s wrong with the economic system that made him billions

The U.S. has one of the highest levels of income inequality in the world. Warren Buffett can tell you that.

The wealth of the top 400 richest Americans has increased 29-fold since 1982, from $93 billion to $2.7 trillion, according to the Forbes 400. Meanwhile, the wealth of "many millions of hardworking citizens remained stuck on an economic treadmill,” Buffett says.

The billionaire investor and chairman of Berkshire Hathaway BRK.A, +0.20%   wrote an opinion piece in Time magazine explaining what’s wrong with America’s economic system.

“During this period, the tsunami of wealth didn’t trickle down,” he wrote. “It surged upward.”

The richest 0.1% of Americans own as much as the entire bottom 90%, and the wealthiest 10% own nearly 90% of stocks, according to data from DB Global Markets Research and the World Wealth and Income Database.

Courtesy of Deutsche Bank Securities

“The market system, however, has also left many people hopelessly behind, particularly as it has become ever more specialized,” Buffett wrote in the Time magazine piece, noting how technology has made some people enormously wealthy, while putting others out of jobs.

‘Between the first computation in 1982 and today, the wealth of the 400 increased 29-fold — from $93 billion to $2.7 trillion — while many millions of hardworking citizens remained stuck on an economic treadmill. During this period, the tsunami of wealth didn’t trickle down. It surged upward.’Warren Buffett

But it’s not all bad news, he said. In fact, technology should give Americans reason to be optimistic about the future.

Buffett pointed to industries that have been massively disrupted by technology, like agriculture, which has seen tractors, cotton gins, fertilizer and irrigation reduce its workforce from 80% of all American workers to just 2%.

“The staggering productivity gains in farming were a blessing,” Buffett wrote. “They freed nearly 80% of the nation’s workforce to redeploy their efforts into new industries that have changed our way of life.”

Related read: The richest people on the planet just got richer

So what’s the solution to ensuring that the market continues to improve for all Americans?

“A rich family takes care of all its children, not just those with talents valued by the marketplace,” he wrote.

Buffett is among a group of billionaires including Facebook Inc. FB, +0.69%  Chief Executive Mark Zuckerberg and his wife, Priscilla Chan; activist investor Bill Ackman; and Oracle Corp. ORCL, +0.99%  co-founder Larry Ellison who have signed the Giving Pledge, a formal commitment made in 2010 to give away more than half of their wealth.

Meanwhile, hundreds of American millionaires and billionaires are outraged by the Trump administration’s tax overhaul and oppose its tax cuts.

“We call on Congress to raise our taxes to bring in additional much-needed revenue and to restore investments to vital services,” a letter signed by the likes of billionaire George Soros, Ben & Jerry’s founders Ben Cohen and Jerry Greenfield, and philanthropist Steven Rockefeller said. “Doing so will help create jobs, strengthen the middle class, and ensure America’s economic success.”




Why Progressives Shouldn’t Assume Republicans Will ‘Move On’ From ACA Repeal

This isn’t the first time GOP leaders have said they’ll focus on other things.

Figuring out how Republicans plan to approach health care this year isn’t easy. A little more than a week ago, just before Christmas, Senate Majority Leader Mitch McConnell (R-Ky.) said that his party would “probably move on” from full repeal of the Affordable Care Act now that Republicans have eliminated the individual mandate, which is a key piece of the law’s architecture. But just a few days later, some conservative House Republicans said they aren’t ready to back off: Repeal is “still on the table,” insisted Rep. Mark Meadows (R-N.C.).

Of course, this back-and-forth should feel pretty familiar by now. In March, after an initial effort to pass repeal legislation in the House failed, GOP leaders indicated they were ready to focus on other priorities. But some determined members of the Republican caucus kept at it. Within a few weeks the full House was voting on, and approving, new legislation.

In July, after Sen. John McCain (R-Ariz.) cast a dramatic and decisive third vote to kill Obamacare repeal in the Senate, McConnell said “it’s time to move on” ― yes, the same phrase he used last week. But two Republican senators, Bill Cassidy of Louisiana and Lindsey Graham of South Carolina, had other ideas. They got to work on their own bill, rallying support among colleagues and eventually persuading McConnell to try again ― although that proposal, like the Senate’s previous effort, never got the votes it needed to pass.

This time could be different. By eliminating the mandate, which requires those who opt out of coverage to pay a penalty, Republicans have finally notched a significant legislative victory in their years-long crusade against Obamacare. President Donald Trump has taken to saying that Republicans have “essentially repealed” the 2010 health care law and polls show 44 percent of Republicans believe him. Plenty of progressives seem happy to encourage that notion, if only because it might keep Trump’s gaze focused elsewhere.

But progressives also know that, substantively speaking, Trump happens to be wrong. The law’s Medicaid expansion remains in place, as do its health insurance tax credits and protections for pre-existing conditions. That means there’s still plenty of Obamacare for Republicans to repeal. And if it’s easy to construct a coherent theory for why Republicans won’t seriously take up their campaign again this year, it’s just as easy to construct a coherent theory for why they will.


Probably the single biggest impediment to another run at full repeal is the vote count in the Senate ― and how it’s about to change.

The closest Republicans came to passing one of their bills was that late July vote, when McConnell and his lieutenants brought several measures to the floor in a desperate attempt to pass anything that could lead to negotiations with the House. The final attempt was on a “skinny repeal” bill that would have eliminated the individual mandate and done little else. It failed because, with Sens. Susan Collins of Maine and Lisa Murkowski of Alaska joining McCain in voting no, Republicans were one short of the 50 votes they needed for a bill to pass. (Vice President Mike Pence would have broken the tie.)

Now, in theory, Republicans are two votes short because they lost one of Alabama’s Senate seats in the recent special election. With Democrat Doug Jones in the seat that Luther Strange had occupied, passing repeal would require flipping two votes (among Collins, McCain and Murkowski) to yes. Flipping just one of them was going to be hard enough.

That’s especially true now that the individual mandate will be disappearing. The mandate has played an important role in the newly reformed health insurance system by giving healthy people more incentive to get coverage. Without that penalty in place, insurers will have to raise premiums. But the mandate has also been among the least popular features of the Affordable Care Act, creating a serious political liability for the program as a whole. 

Now that liability is gone, leaving only the law’s more popular provisions. There’s the Medicaid expansion, through which millions have gotten coverage and on which states have to come to rely in their fight against the opioid epidemic. There are the guarantees of insurance for people with pre-existing medical conditions. And there are tax credits worth hundreds or even thousands of dollars a year to people who use them.

Voting to undermine these provisions was difficult for many Republicans the first time around. Voting to undermine them now, with Republicans down in the polls and midterm elections much closer, is bound to be harder.  


In normal political times, that combination of factors would all but guarantee Republicans stay far away from repeal in 2018. But these are not normal political times, as 2017 has made clear.

It’s not like repeal proposals were ever popular. House Republicans approved their bill anyway, while Senate Republicans came within just one vote of doing the same with theirs. Even those senators from the states most dependent on Medicaid for opioid treatment, Rob Portman of Ohio and Shelley Moore Capito of West Virginia, were willing to support cuts to the program under some circumstances.

Nor is it clear that any given Republican who voted against repeal previously will do so again, even if the circumstances are similar. When Collins, Murkowski and McCain voted against the skinny bill, all three cited, among other reasons, the rushed process that got legislation to the floor ― without full committee hearings, final cost projections or serious efforts to engage Democrats in negotiation. But Collins and Murkowski voted for the GOP tax cut bill, whose provision to repeal the mandate was functionally the same thing as the skinny repeal bill, and McCain would have done so if present ― even though Republicans were once again rushing legislation to the floor without the usual committee hearings, without a final cost projection and without serious efforts to engage Democrats.

An X-factor in all of this is how ending the mandate actually affects insurance markets going forward. It’s unlikely to cause a true unraveling because the biggest incentive in getting healthy people to sign up for coverage turns out to be those premium tax credits, and the discounts they produce, rather than the penalty for going without coverage. That guarantees a sizable market that will entice some insurers to stay in the program. It also protects people who qualify for the subsidies (who represent the majority of people buying insurance on their own) from having to pay more as premiums go up.

But people who make too much to qualify for tax credits will face much higher premiums, to the point where many if not most simply cannot pay for comprehensive coverage anymore. That’s already true in a handful of places, but, without the mandate, it’s likely to be true in more areas. Consumers will find out about this right before the midterm elections, because that is when insurers will finalize premiums for 2019 ― the first year that the mandate won’t be in place. Republicans might feel compelled to act, if not before consumers learn about the premium hikes than afterward, although whether they’d use that as an excuse to try repeal again is difficult to say. 

Less ambiguous is the GOP’s determination to focus again on cuts to Medicaid ― not because the program has problems but because tearing it down is such a defining cause for Republican leaders in general and House Speaker Paul Ryan (R-Wis.) in particular. One possibility is that Republicans go after Medicaid but in a different way than they have so far this year. Instead of calling it Obamacare repeal, they could call it “welfare reform,” which Ryan has already said will be a priority for House Republicans in 2018.


This is not a fight that progressives need to fear. Arguably the most surprising revelation of the repeal fights this year was the popularity of Medicaid, a program that has been a political afterthought for most of its half century in existence. Until this year, the conventional wisdom about Medicaid, which is primarily for low-income Americans, was that it lacked the deep public support of Medicare, which is primarily for seniors.

But polls now show Medicaid to be almost as popular as Medicare, perhaps because many of the people who qualify for Medicaid are working people who have become newly eligible because of the Affordable Care Act’s expansion. The program also includes many seniors and people with disabilities who use it to pay for services, including nursing home care, that Medicare does not cover.

Medicaid was even a factor in Alabama’s U.S. Senate race, although few people noticed. While the national media was (understandably) focusing on the character and conduct of Republican nominee Roy Moore, Jones in his ads and speeches was focusing more on bread-and-butter issues ― among them, why Alabama should join the majority of states that have expanded eligibility.

Progressives can also look back on 2017 and feel confident their efforts played a big, possibly decisive role in stopping repeal. One year ago, GOP efforts to wipe away the 2010 health care law seemed almost certain to succeed. But the program is still operating, and, by the official end of open enrollment for HealthCare.govnearly 9 million people signed up ― nearly as many as last year, despite huge cuts to enrollment outreach and other efforts by the Trump administration to sabotage the program. The public remains divided on the program, but for the first time clear majorities approve of it, according to polls.

All of these signs suggest that the Affordable Care Act, despite its very real problems that need very real attention, is more resilient than most people realized a year ago. But if 2017 has shown anything, it’s that the program’s critics are relentless. The surest way to stop them is to assume they won’t stop trying.





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