A group of 17 state attorneys general this week asked the Centers for Medicare & Medicaid Services to reconsider decisions they claim reduce federal oversight of nursing homes and put seniors at risk.
The officials specifically took issue with CMS’s November 2017 decision to delay enforcement of the new Requirements of Participation (RoPs) for 18 months, as well as July 2017 guidance that put a greater emphasis on per-instance monetary penalties — while de-emphasizing per-day penalties for certain violations, effectively reducing the overall financial burden for operators.
“The threat of penalties is a deterrent to SNFs engaging in abusive behavior,” the attorneys general, led by California’s Xavier Becerra, wrote in the letter, which was addressed to CMS Administrator Seema Verma and Department of Health and Human Services Secretary Alex Azar. “Eroding even these penalties enables unscrupulous SNFs to provide substandard care and receive minimal penalties, if these lapses are even brought to light.”
The group argued that these changes could potentially hamstring their ability to investigate Medicaid fraud through state-level Medicaid Fraud Control Units (MFCUs), over which state attorneys general have control.
“If allowed to proceed, recent regulatory changes will not only threaten the mental and physical security of some of the most vulnerable residents of our states, but also potentially create additional challenges for MFCU investigation and prosecution of grievances, violations, and crimes occurring in SNFs,” they wrote.
The AGs also cited a 2017 report from the HHS Office of the Inspector General, which accused CMS of having inadequate policies regarding the reporting of suspected abuse, as well as data from the state of California showing 170 citations for SNF violations through the first four months of 2018.
Though CMS has only delayed enforcement of monetary penalties relating to the second phase of the RoPs — and not eliminated them entirely — the AGs asserted that the postponement still represented a danger for residents.
“To remove important protections for SNF patients amounts to a devaluation of human wellbeing,” they wrote. “Further, these actions to arbitrarily delay or capriciously remove protections are an abuse of federal law. Rolling back regulatory reform and decreasing penalties for non-compliance will result in less governmental oversight of behavior in the long-term care industry, potentially diminishing the government’s ability to ascribe criminal intent to specific actions in appropriate cases.”
CMS at the time said the delay was necessary to provide more information to providers.
“CMS will use this 18-month moratorium period to educate surveyors and the providers to ensure they understand the health and safety expectations that will be evaluated through the survey process, since these Phase 2 requirements are associated with unique and separate tags where specialized efforts and technical assistance may be needed,” the agency said.
The attorneys general consisted almost entirely of Democrats, including Becerra, Lisa Madigan of Illinois, Maura Healey of Massachusetts, and Jim Hood of Mississippi. Hawaii Attorney General Russell Suzuki is officially listed as nonpartisan, as he was appointed by the state’s governor and not elected; similarly, Barbara Underwood of New York was recently appointed on an interim basis to replace disgraced former AG Eric Schneiderman.
The AGs’ call echoed a similar request from 12 Democratic U.S. Senators earlier this year, who took issue with the more provider-friendly stance that Verma and CMS have taken under the Trump administration.
“We write with deep concern over a string of actions by the Centers for Medicare & Medicaid Services that will inevitably weaken the safety of our nation’s nursing homes and put patients, many of whom are elderly and wholly reliant on this care, at greater risk,” the senators wrote back in February.
Written by Alex Spanko
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