Lawmakers realize we have a pervasive nursing home abuse problem in America. Nursing home COVID-19 deaths are nearing 200,000. More glaringly, a bipartisan Senate investigation revealed that poor resident care is overwhelmingly clustered around less than 5% of the nation’s facilities.
A disproportionate amount of neglect cases occur in nursing homes listed under the Special Focus Facility (SFF) program. The program includes the worst performing facilities that “substantially fail” to meet the basic care standards required by the federal government.
Annually, state and federal agencies inspect nursing homes. When nursing homes do not meet government safety standards, these instances are cited as deficiencies that require correction. Three years of inspection data is incorporated in Medicare’s nursing home star rating system. Deficiency citations are converted into points based on the number of deficiencies cited and the scope and severity of those citations. The facilities with the most points in a state then become candidates for the SFF program.
Think of SFF nursing homes as the repeat offenders that have a demonstrated pattern of neglecting and harming vulnerable residents. Until recently, an SFF distinction was shameful but without much punishment or rehabilitation opportunities. Right now, an SFF listing means increased agency investigation and some minor fines.
However, we have an opportunity to fix that.
Sens. Bob Casey (D., Pa.) and Pat Toomey (R., Pa.) have proposed the Nursing Home Reform Modernization Act of 2021. The bill would expand the list of monitored facilities, increase educational resources for underperforming facilities, and establish an independent advisory council to inform the U.S. Department of Health and Human Services (HHS) on how best to rank nursing home performance and foster quality improvements.
The bill would improve and expand the SFF program to include facilities currently qualifying as “candidates” for SFF but not members. These are poorly performing facilities that exist on the periphery of the SFF list but not on it. Under the proposed legislation, the SFF list would expand and require that no fewer than 3.5% of the worst-rated facilities are under increased scrutiny. This means that SFF list “candidates” can no longer escape increased inspections and oversight simply because they are not officially listed on the SFF list.
The U.S. Government Accountability Office and the Department of Health and Human Services would also get involved in auditing and investigating low-rated nursing homes, with civil penalties ranging from monetary fines to license revocation. The revised civil penalties would be higher monetary amounts. This money taken from the violating facilities would be reinvested to improve the SFF nursing home via increased training and education for staff members in the deficient facilities.
Further, the SFF program would be rebranded as the “Low-Rated Facility Program,” and the nursing home rating information would become easily accessible to the public. This can better inform elderly Americans on which facilities enjoy high rankings and which facilities frequently violate residents’ rights.
The program is not entirely punitive though. The underlying purpose of the proposed nursing home rating system is to publicly evaluate facilities and offer a path toward improvement. Government regulators would work hand in glove with poorly ranked facilities in an effort to improve compliance with state and federal regulations.
As a nursing home negligence litigator, I am floored by the lack of quality control we use in our long-term care system. The lifeblood of these nursing homes is taxpayer dollars in the form of Medicare and Medicaid. It is time that the government insisted on humane, quality patient care in exchange for the hundreds of millions of federal dollars it pays private, for-profit nursing home corporations.
The proposed legislation is supported by almost every senior citizen nonprofit in the US. It also enjoys bipartisan support from legislators not influenced by the nursing home lobby.
Let’s demand more accountability from nursing homes. Write your members of Congress today and ask them to support the Nursing Home Reform Modernization Act of 2021.
Michael Brevda is the managing partner at Senior Justice Law Firm, a nationwide law firm narrowly focused on nursing home abuse litigation. A version of this piece first ran in the Orlando Sentinel.