Nursing home advocates say AGs' push for punitive enforcement won't improve quality

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AHCA's Mark Parkinson says punitive enforcement is outdated.
AHCA's Mark Parkinson says punitive enforcement is outdated.

The leading association for skilled nursing providers said Friday that a call by state officials to reinstate tough federal enforcement policies might undercut quality gains.

Last week, a group of 16 attorneys general sent a letter to Health and Human Services Secretary Alex Azar and the Centers for Medicare & Medicaid Services asking federal officials to be more aggressive about compliance and to lift the delay of civil monetary penalties connected to Phase Two of the Requirements of Participation.

“Unwittingly, these attorneys general are advocating for policies that will hurt residents of nursing facilities,” said Mark Parkinson, president and CEO, AHCA/NCAL. “There is no evidence that the punitive approach to quality that they are advocating works. There is plenty of evidence to indicate that it does not.”

Parkinson said the industry recently has improved outcomes in 21 of 24 clinical categories examined by government officials to reach the highest levels yet.

He said the AGs, led by California's Xavier Becerra, mischaracterized some of the policy changes instituted under the Trump administration, including the suspension of CMPs applied to 8 of 249 regulations. Parkinson said those were all being enforced with citations.  As for infection control regulations cited in the attorneys' letter, Parkinson said civil monetary penalties were lifted only for the antibiotic-reduction program.

The attorneys' criticisms were largely linked to implementation of the Final Rule, which rolled out new infection-prevention, medication management and staff requirements starting in 2016. CMS delayed the implementation of certain Phase Two penalties by 18 months and lowered the frequency and amount of penalties for past violations.

“Civil monetary penalties are an essential tool to ensure nursing facilities comply with care standards and protect their residents,” the attorneys said. “In essence, a rollback of these important and much needed long-term care regulations will result in greater challenges for holding criminals and other violators accountable.”

Other states calling for more enforcement are Connecticut, Hawaii, Illinois, Iowa, Maryland, Massachusetts, Minnesota, Mississippi, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, and the District of Columbia.

Brendan W. Williams, President and CEO of the New Hampshire Health Care Association, said challenges to long-term care cannot be fixed only by relaxing regulations, nor by piling them on. He said the relaxed penalties appropriate given the rules with no additional funding — and an annual added cost of at least $55,000. 

“Indeed, a more productive approach for Becerra and his colleagues to take would be to challenge their states' failures to make adequate provision for their most vulnerable residents,” Williams said. “Signatories to the letter include Illinois Attorney General Lisa Madigan. What does Madigan make of the lawsuit filed on behalf of over 100 Illinois nursing homes over the state's Medicaid rates failing to support quality care?”

Parkinson called on CMS and the public to reject the attorneys generals' approach to quality improvement.

“While our members are working hard to improve the lives of their residents, these politicians want to return to the failed policies of the past,” he said.