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Enforcement Delay Endangers Nursing Home Residents in Birmingham

Alabama nursing home attorneyThe year 2017 was a difficult year for those of us who want to see nursing homes held to higher standards in caring for their residents. One of the more encouraging recent events was when the Centers for Medicare & Medicaid Services (CMS) passed a 713-page rule in late 2016, which served as the first major update in regulations for long-term care facilities in 25 years. This new rule was set to roll out in phases, with Phase 2 going fully into effect on November 28, 2017. Just before that deadline hit, however, CMS took a step back from it.

An Educational Delay

Modern Healthcare reported on a memo quietly sent out by CMS in November that put an 18-month moratorium on aspects of the rule scheduled to go into effect that same month. The major part of the rule that was put on hold is enforcement, meaning that long-term care providers will not suffer monetary fines, refusal of payment, or removal from Medicaid due to failures to meet certain aspects of the new rules. The memo notes that some aspects of the new rule, including one "which addresses reporting reasonable suspicion of a crime due to the concerns about significant resident abuse going unreported." But the list of things for which providers will not be fined is still concerning. Included in the moratorium is a statute requiring facilities to have sufficient staff on hand and another regarding the appropriate prescribing of psychotropic drugs.

CMS cited concerns about the ability of facilities to be adequately prepared for the new rule by the deadline, and stated that the hold period would be used to educate and prepare the industry. Since the rules themselves are not being put on hold, one aspect of this preparation is that CMS will still issue citations for breaches of the rules, even if they cannot include financial penalties.

A Growing Trend

This is not the first time the 2016 rule has been challenged in the past year. In August, NPR reported on a new plan being proposed by CMS that would entirely eliminate a provision allowing residents and their families to pursue legal options for cases of abuse or neglect. The 2016 rule forbade long-term care facilities from requiring residents to sign contracts that forced them to seek arbitration instead of lawsuits. While arbitration is useful and has its benefits, the rule was put in place to protect residents and ensure they had the option to pursue the best approach for their situation. By removing that provision, CMS would endanger the freedom of victims and their families to consider valid options in seeking justice for abuse or neglect.

Failing to hold long-term care providers accountable for the care they offer residents is dangerous. Even a temporary hold on enforcement allows too many residents to suffer without an adequate response. Do not wait for fines to go into effect to ensure that your loved ones are getting the best care available to them. If you know someone who is a victim of nursing home abuse or neglect, contact us immediately so we can help you consider your options and pursue the best course of action for your case.

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