January 19, 2021

In this Issue:

1. Lawsuit Alleges CMS Directive Violates Enforcement Provisions
   
2. New Consumer Voice Report on Effect of Lockdowns on Long-Term Care Residents
   
3. Fireside Chat Tomorrow on COVID-19 Vaccine Safety with CMS, CDC, and Consumer Voice
   
4. New Resource for Ombudsman Programs on Facility-Initiated Discharges
   

Lawsuit Alleges CMS Directive Violates Enforcement Provisions

The National Consumer Voice for Quality Long-Term Care (Consumer Voice) and California Advocates for Nursing Home Reform joined a lawsuit filed by AARP Foundation and Constantine Cannon LLP alleging that the Department of Health and Human Services and Centers for Medicare and Medicaid Services (CMS) put residents at risk by limiting enforcement penalties available under federal law. The suit challenges an operations memo from CMS in July 2017 directing states to impose per-instance fines for past violations, rather than fines for each day of past noncompliance.

As implemented according to this revised policy, a “per-instance” fine amount imposed for past noncompliance would be the same whether the facility did not meet standards for 3 days, 30 days, or 300 days. During each of those days, residents are at risk of or experiencing harm.

This lawsuit seeks to have this revised policy vacated and return to the per-day penalties provided in the Nursing Home Reform Act.

Read Consumer Voice's full statement.

Read the full complaint here.

Read the statement from AARP Foundation.

New Consumer Voice Report on Effect of Lockdowns on Long-Term Care Residents

On March 13, 2020, the Centers for Medicare & Medicaid Services (CMS) issued a lockdown order, banning everyone but essential personnel from entering nursing homes. As a result, nursing home residents began a months-long period of isolation - cut off from their families.

After CMS began to relax visitation rules, Consumer Voice heard from families that had met with their loved ones for the first time in over six months.  Families reported that their loved ones had suffered extreme weight loss, physical decline, mental and cognitive decline, and exhibited clear signs of neglect and abuse.  Almost invariably, residents seemed unkempt and displayed a lack of hygienic care.  Often, residents were missing personal effects.

To further understand the effects of the lockdown on residents, we created a family member survey.  Unfortunately, the responses confirmed our concerns.  Consumer Voice has produced this report summarizing the responses to the survey.  The results demonstrate that in many instances, the effects of the facility lockdown have been just as devastating as COVID-19 to nursing home residents.  The report details immediate steps that must be taken to address the neglect and suffering occurring in nursing homes, including the expansion of compassionate care visits.

Read the report: The Devastating Effect of Lockdowns on Residents of Long-Term Care Facilities During COVID-19.

Fireside Chat Tomorrow on COVID-19 Vaccine Safety with CMS, CDC, and Consumer Voice

Join the Centers for Medicare & Medicaid Services (CMS), the Centers for Disease Control and Prevention (CDC) and the Consumer Voice tomorrow at 4pm ET for a fireside chat on vaccine safety. This is the fourth discussion in a special series, a part of the CMS National Nursing Home Stakeholder Call Series, aimed at addressing questions and concerns about the new COVID-19 vaccines. Each session is moderated by CMS with speakers from CDC and representatives of front line staff, providers, and consumers.

This chat will focus on the voice of long term care residents, families, and advocates.

Panelists:

• Dr. Lee Fleisher, CMS Chief Medical Officer and Director, Center for Clinical Standards and Quality (CMS)
• Dr. Amanda Cohn, Chief Medical Officer (Acting), Office of Vaccine Policy, Preparedness, and Global Health, Office of the Director (CDC)
• Evan Shulman, Director, Division of Nursing Homes (CMS)
• Robyn Grant, Director of Public Policy and Advocacy at the National Consumer Voice for Quality Long-Term Care

• Submit questions for the panel to Robyn Grant at rgrant@theconsumervoice.org
• Resource: Long-Term Care Facility Toolkit

Target Audience: Long term care residents, families, and advocates.
 
Register in advance for this webinar.

New Resource for Ombudsman Programs on Facility-Initiated Discharges
Complaints regarding nursing facility-initiated discharges have been the most common type of complaint received by the Long-Term Care Ombudsman program for the last nine years.

According to federal guidance for surveyors, “facility-initiated discharge” is defined as “a transfer or discharge which the resident objects to, did not originate through a resident’s verbal or written request, and/or is not in alignment with the resident’s stated goals for care and preferences.”

To assist Ombudsman programs when working with residents facing a facility-initiated discharge, the National Ombudsman Resource Center (NORC) produced a new resource titled, Enhancing Your Advocacy Toolbox: Protecting Residents from Nursing Facility-Initiated Discharges. This resource blends pertinent federal nursing home requirements and surveyor guidance with action steps for Ombudsmen to consider.

Ombudsman programs can use this resource as a basic guide for using federal regulations and guidance to address common issues related to facility-initiated discharges. Additional information and training materials about facility transfers and discharges are available on the NORC website, including a fact sheet, Prezi video, training PowerPoint, and webinars from the Ombudsman Learning Collaborative to Protect Residents Against Nursing Facility-Initiated Discharges.