The curious case of conflicting state and federal approaches to nursing home penalties



Life can be so confusing sometimes, and on certain days (like this), one realm in which that shows up is how penalties are applied to nursing homes for substandard care.

These two headlines are currently juxtaposed on Aging Edge: “State Imposes One of Largest Nursing Home Fines Ever on Squirrel Hill Facility” and “Trump Administration Relaxes Financial Penalties Against Nursing Homes.”

The local story points to a $235,000 Pennsylvania Health Department fine against the Charles Morris Nursing and Rehabilitation Center for its care — or lack thereof — of Robert Frankel, a patient with dementia who died from asphyxiation in September when his neck was trapped in a bed rail. The only state fine larger than that in the past four years was one also issued last month to a Delaware County facility with widespread problems.

At the same time that the Wolf administration has lifted nursing home penalties to a new six-figure level (most state fines, historically, have amounted to less than $10,000 — in other words, not even five figures), the national story from Kaiser Health News notes that the Trump administration is going in the opposite direction.

Its new Center for Medicare & Medicaid Services nursing home guidelines are intended to reduce the number and size of federal fines for the same types of violations that state regulators also may penalize, according to the article. This is particularly interesting because federal fines, traditionally, have tended to be larger than those imposed by states, and even more than usual during the Obama administration.

The nursing home industry has often complained that such penalties are harmful instead of helpful to nursing home quality, and the anti-regulation, pro-business Trump administration has listened.

“It is critical that we have relief,” the head of the American Health Care Association wrote to president-elect Donald Trump in December 2016, according to the Kaiser Health News report.

So you seemingly have regulatory/penalty trends running in opposite directions from one another, and in each case, polar opposites from what each level of government was doing a few years ago. The state Health Department received ample criticism in 2015 for being too lax on nursing homes. Its penalties subsequently became far more numerous, though a phillynews.com story recently noted that the volume of state fines has inexplicably dropped off substantially in recent months, even if the amounts of the ones recently issued were strikingly high.

State officials are consistently reluctant, for reasons unclear to us, to discuss why certain fines are issued — and others are not — and what determines the size of a penalty like that received by the Charles Morris center. When an explanation for the latter was sought from Health Department spokeswoman April Hutcheson, she responded rather cryptically by email:

“In terms of our sanctions, we have been working to evaluate how we issue sanctions and the extent the law allows the department to assess financial penalties. This was recommended by both the Auditor General and the Nursing Home Improvement Task Force, and will result in higher financial penalties. We have issued licensure sanctions, but have been working through the financial sanctions. The priority is making sure facilities correct any issues identified.”

It will be interesting to monitor the extent to which state fines continue at these high levels, at the same time the federal government is on track to reduce its own penalties for the same violations. (The federal regulators rely largely on state nursing home investigators’ reports as the basis for whatever action they take, rather than conducting their own investigations.) And if the large state fines continue, don’t be surprised if Pennsylvania nursing home associations and representatives complain in the same way their federal counterparts did so effectively.

In a letter to the Post-Gazette published Monday, it wasn’t even the nursing home industry but a local law professor, Alan Meisel of the University of Pittsburgh, who spoke up to question the Charles Morris fine with the same point used by the industry: “Most nursing homes — especially nonprofit facilities like Charles Morris — already run on shoestring budgets,” he wrote. “A financial penalty only makes this situation worse by diverting resources from resident care to the state.”

In nine comments responding to Mr. Meisel’s letter on the Post-Gazette website, other individuals countered that the state should be taking more such actions, not fewer.

Gary Rotstein: grotstein@post-gazette.com or 412-263-1255.





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