July 28, 2021

Earlier this year, the National Consumer Voice for Quality Long-Term Care (Consumer Voice) and California Advocates for Nursing Home Reform (CANHR) filed with the assistance of counsel AARP Foundation and Constantine Cannon LLP a lawsuit challenging a Centers for Medicare and Medicaid Services (CMS) 2017 directive that weakened the enforcement standards of the Nursing Home Reform Act and put residents at risk of harm.  Last week, CMS reversed course, rescinding the directive and reinstituting stronger penalties for nursing home violations.

The guidance at the center of the lawsuit restricted the use of civil money penalties for past non-compliance to a “per instance” maximum fine rather than allowing fines for each day of noncompliance.  This policy significantly reduced the penalties imposed for violations that placed residents at risk of harm and removed incentives for nursing homes to detect and fix serious problems quickly.  

“This action by CMS will provide incentive for nursing homes to identify and correct problems in a timely manner, as required by the Nursing Home Reform Act,” said Lori Smetanka, Executive Director of the Consumer Voice. “A strong enforcement system is necessary to protect residents from harm. The Consumer Voice commends CMS for this important action.”

In rescinding the guidance, CMS stated “upon further consideration … the agency should retain the discretion at this time to impose a per-day penalty where appropriate to address specific circumstances of prior noncompliance.”

For more information, contact Lori Smetanka, lsmetanka@theconsumervoice.org.

Read the article on the topic in the New York Times.