In September 2016, the federal Centers for Medicare & Medicaid Services (CMS) issued revised nursing home regulations that had been thoughtfully developed over four years to promote residents’ health and safety. Now, however, under the current administration, CMS is backtracking and weakening resident protections.

Starting in January 2017, nursing home lobbyists began urging CMS to eliminate or delay enforcement of some of the revised regulations, and to significantly reduce penalties imposed when a nursing home violates the law. Disturbingly, CMS too often has followed the lobbyists’ recommendations.

Protections have been weakened since January 2017, and, the current administration’s actions suggest an intent to further undermine these protections. This is bad news for nursing home residents, for their family and friends, and for anyone who cares about the well-being of older Americans.

Here are some troubling steps that CMS already has taken. Residents benefit from early care planning and antibiotic standards, but CMS created an 18-month moratorium on money penalties for violations of these requirements. Arbitration agreements are harmful to residents, but CMS proposes to reverse a ban on arbitration agreements and instead authorize nursing homes to require them. A new regulation requires nursing homes to notify a local ombudsman whenever they move to evict a resident, but now CMS has requested comments on how they might eliminate that requirement.

Read the issue briefs below for more detailed information:

Below is a searchable chronology of nursing home industry requests to CMS and subsequent weakening of regulations.

How CMS is Rolling Back Nursing Home Protections

DATERequest by Nursing Home Operators or Congress, and Action Taken by CMSDate(s) of Subsequent CMS Action Complying with RequestDocumentation
December 15, 2016Nursing home lobbyists request that the Centers for Medicare & Medicaid Services (CMS) repeal and replace nursing home regulations that became effective in November 2016, eliminate fines when the violation occurred prior to an inspection, and repeal CMS S&C Memo 16-31-NH relating to enforcement actions.7/7/2017
10/27/2017
1/18/2018
6/15/2018
American Health Care Ass’n letter to President-Elect Donald Trump (Dec. 15, 2017), http://theconsumervoice.org/uploads/files/issues/AHCANCAL-Letter-TrumpAdmin-Attachments.pdf
March 9, 2017Nursing home lobbyists request that CMS:
·   repeal and replace the nursing home regulations that became effective in November 2016;
·   eliminate numerous regulations, including
o   the ban on arbitration agreements during a resident’s admission, and
o   the requirement that a facility assess the staffing levels needed to care for residents; and
·   eliminate fines when the violation occurred prior to inspection or no individual resident suffered harm.
6/8/2017
7/7/2017
10/27/2017
1/18/2018
American Health Care Ass’n letter to Secretary Thomas Price (March 9, 2017), http://www.ihca.com/Files/Comm-Pub/AHCA-Final-Price-Ltr-3.9.17.pdf
May 4, 2017CMS solicits comments on three possible areas where nursing home standards might be eliminated or reduced:
·   notice to Long-Term Care Ombudsman Program when nursing home is evicting resident;
·   standards for handling resident grievances; and
·   requirement that facilities develop quality improvement programs.
CMS also seeks “feedback regarding any additional areas of burden reduction and cost savings in [nursing homes].”
Proposed Rules, 82 Fed. Reg. 21,014, 21,089 (May 4, 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-05-04/pdf/2017-08521.pdf
June 8, 2017CMS proposes to eliminate ban of arbitration agreements and instead allow nursing homes to require such agreements as a condition of admission.Proposed Rules, 82 Fed. Reg. 26,649 (June 8, 2017), https://www.gpo.gov/fdsys/pkg/FR-2017-06-08/pdf/2017-11883.pdf
June 26, 2017Nursing home lobbyists request that CMS
·   delay regulations;
·   eliminate regulation requiring assessment of staffing needs; and
·   weaken regulations about
o   infection control;
o   abuse reporting;
o   notice to Long-Term Care Ombudsman Program when facility is evicting resident;
o   resident grievances; and
o   quality improvement programs.
6/30/2017
11/24/2017
1/18/2018
LeadingAge comments in response to CMS’s solicitation (on May 4, 2017) of ways to eliminate or weaken regulations (June 26, 2017), http://www.leadingagewi.org/media/46354/la-rops-cms.pdf
June 30, 2017CMS announces that for one year it will not impose fines or any other meaningful penalties for violations of certain regulations scheduled to go into effect in November 2017.CMS Survey and Certification (S&C) Memo 17-36-NH (June 30, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/GuidanceforLawsAndRegulations/Downloads/Survey-and-Cert-Memo-Revision-SOM-Appendix-PP-Phase-2.pdf
July 7, 2017CMS changes its policies to reduce amount and frequency of nursing home fines. Fines will be assessed on a per day basis, rather than a per instance basis, when the violation occurred prior to inspection. In addition, per-instance fines will be used even for an ongoing violation considered a “single isolated incident.”CMS S&C Memo, 17-37-NH (July 7, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-17-37.pdf
October 11, 2017120 Members of the U.S. House of Representatives request that CMS revise the nursing home regulations and give nursing home operators more time to comply.11/24/2017
1/18/2018
Letter to CMS from 120 Members of the U.S. House of Representatives (Oct. 11, 2017), http://renacci.house.gov/_cache/files/8ad42967-7fd9-4d12-abaa-f65dda6e0426/renacci-rop-final-letter-10.11.17.pdf
October 26, 201724 Members of the U.S. Senate request that CMS delay by one year the effective date of certain regulations.11/24/2017
1/18/2018
Letter to CMS from 24 Members of the U.S. Senate (Oct. 26, 2017), http://theconsumervoice.org/uploads/files/issues/Senate_ROP_letter_10.26_.17_FINAL_.pdf
October 27, 2017CMS proposes to repeal previous S&C Memo 16-31-NH and reduce imposition of fines against nursing homes. Proposed changes include giving nursing homes more opportunities to delay or potentially avoid fines and, even in “immediate jeopardy” situations, allowing fines only in cases of serious injury or death.CMS S&C Memo 18-01-NH (Oct. 27, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-18-01.pdf
October 30, 2017CMS launches Patients Over Paperwork initiative to eliminate or weaken regulations governing health care providers.CMS press release (Oct. 30, 2017) https://www.cms.gov/Newsroom/MediaReleaseDatabase/Fact-sheets/2017-Fact-Sheet-items/2017-10-30.html
November 24, 2017Following up on memo of June 30, 2017, CMS announces that for 18 months it will not impose fines or any other meaningful penalties for violations certain regulations scheduled to go into effect in November 2017. These regulations address topics including:
·   caring for residents with dementia;
·   developing a care plan within 48 hours after a resident’s admission;
·   developing quality improvement programs; and
·   assessing staffing levels needed to care for residents.
CMS S&C Memo 18-04-NH (Nov. 24, 2017), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/Survey-and-Cert-Letter-18-04.pdf
February 15, 2036CMS indicates intent by June 2018 to issue proposed nursing home regulations that would eliminate or revise regulations that allegedly are excessively burdensome, unnecessary, or obsolete.Unified Agenda of Regulatory and Deregulatory Actions, RIN 0938-AT36 (Fall 2017), https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=201710&RIN=0938-AT36&operation=OPERATION_PRINT_RULE
December 15, 2017CMS holds closed listening session to hear from nursing home operators only about supposed regulatory burdens.
January 18, 2018CMS’s “Patients Over Paperwork” newsletter explicitly states that CMS heard and responded to the requests of nursing home operators in
·   Delaying use of fines and other enforcement mechanisms for violations of regulations that became effective in November 2017, and
·   Reducing the size of fines by imposing per-instance fines rather than per-day fines for violations that occurred prior to any inspection.
CMS, Patients Over Paperwork newsletter (Jan. 2018), https://www.cms.gov/Outreach-and-Education/Outreach/Partnerships/Downloads/JanuaryPoPNewsletter011818.pdf
February 12, 2018Nursing home lobbyist states intent to seek weakening of regulations to compensate for decrease in Medicare payment rates in federal budget.Kimberly Marselas, $1.96 Billion Nursing Homes Cut Will Force Hard Look at Regulation, Payment, Experts Say, McKnight’s Long-Term Care News, February 12, 2018
June 15, 2018As requested by nursing home lobbyists, CMS replaces 2016 policy guidance (CMS S&C Memo 16-31-NH) with new guidance that limits imposition of penalties against nursing homes. Under the new guidance, CMS eliminates certain mandatory penalties, giving regional CMS offices wide discretion to whether and how to address a particular violation. Also, penalties are lessened in situations when residents were in “immediate jeopardy” but did not suffer harm. CMS, Quality, Safety & Oversight Group, Final Revised Policies Regarding the Immediate Imposition of Federal Remedies, QSO 18-18-NH (June 15, 2018), https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/Downloads/QSO18-18-NH.pdf