Deregulating Nursing Homes Leaves Patients at Risk

One of the last places anyone wants to find themselves is in a nursing home, but for many people who need long-term care services that are not available to them at home, or those who need to recover after a hospital stay, there is often no other choice. About 1.3 million Americans live in these facilities and while the number of short-term nursing home stays is hard to nail down, it is at least twice that amount.

Here’s a number I find even more compelling: according to Morningstar, in just a few years, by 2020, 40 percent of all deaths in the United States will take place in nursing homes.

Now, everyone has heard horror stories about nursing homes – but you could say that about any part of the healthcare industry; there are plenty of hospital horror stories and reports of incompetent doctors, testing facilities and so on. Still, with millions of Americans needing nursing home care at the moment of life when they are most vulnerable, the safety and quality of care provided by these institutions is not only of great concern to individuals and families, it is an important focus of public health policy.

Dismantling Patient Protections

In 2016 the federal government issued a number of regulations to give nursing home residents more control over their environment and improve the quality of care they receive, including measures aimed at preventing abuse, infection and patient dumping. A longstanding practice that barred nursing home patients or their families from taking facilities to court was banned by the Obama Administration. However, in a series of actions over the past year, the Trump Administration has thrown out protections for nursing home residents.

According to Kaiser Health News, since 2013 nearly four out of ten nursing homes nationwide have been cited for serious violations that endanger their residents. Yet last month federal guidelines put in place in 2013, which had increased fines for nursing home actions that harm or even kill patients, were reversed.  The imposition of fines is meant to encourage nursing homes to meet high standards of care but, according to Kaiser, the Trump Administration guidelines “discourage regulators from levying fines in some situations, even when they have resulted in a resident’s death.”

“They’ve pretty much emasculated enforcement, which was already weak,” says Toby Edelman, a senior attorney at the Center for Medicare Advocacy.

One example given by Kaiser concerned a nursing home patient who died because staff failed to monitor and treat a wound. Under the guidelines issued in 2013 the nursing home was fined almost $300,000. Under the guidelines issued last month, the maximum fine would have been less than $21,000.

Meanwhile, as mentioned above, for decades patients or their families had found it impossible to sue nursing homes even when they were guilty of egregious negligence or abuse. The nursing homes ensured this by making people entering the facilities sign contracts requiring them to settle any future disputes through arbitration.

The Obama Administration barred nursing homes from this practice, protecting the rights of residents and their families to take nursing homes to court. However, the Trump Administration not only threw out this protection; it has proposed a federal rule change to affirmatively allow nursing homes to bar residents and their families from filing lawsuits. You can listen to an interview about this rule change here.

In an article published in November, geriatric nurse practitioner Margaret Nolan argues that the proposed rule change is wrong because nursing home residents are an especially vulnerable group, unsafe staffing levels are common and “litigation is often the only means to force nursing homes to provide standard, safe care.” Even in the rare cases where patients or families are able to sue a nursing home, such lawsuits take many years and a complex set of financial maneuvers often limits the liability of the facilities and their owners.

With the federal government rolling back nursing home regulations, the best hope to increase patient protections may lie with the states. In September, the New York State Assembly Committees on Health and Aging held joint hearings on nursing home quality, enforcement, and the handling of problems and complaints. Advocates for nursing home residents described inadequate staffing and lax enforcement of rules designed to prevent injuries, bed sores, and excessive use of psychotropic drugs.

In a year-end press release Assembly Health Committee Chair Dick Gottfried said, “I will be using input from the hearings in bills and budget proposals in 2018 to improve adult homes for their residents.” Given the abandonment of nursing home patients by the federal government, we’ll be paying close attention to actions taken in Albany this year.

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