Q: I read that the Biden Administration is seeking to increase financial penalties on nursing homes to catastrophic amounts. Can CMS really do this?
A: The Biden Administration has indicated that, in addition to exploring a move from per-incident to per-day penalties as a default, it would like to see the fines for those per-instance penalties increased from $21,000 to $1 million.
However, the administration would need both houses of Congress to pass a measure increasing the top dollar limit on per-instance financial penalties.
And, while such a law conceivably could pass muster with the U.S. Supreme Court, I think it is more likely that the conservative majority on the Court would view it as an overreach.
So there is little to fear.
Getting both houses of Congress to approve such stiff penalties on an industry already beset with the twin structural issues of understaffing and underfunding is most likely wishful thinking.
Frankly, draconian penalties such as these should be viewed as an indictment of the punish-first, quality-second oversight system currently in place.
Increasing fines will not make facilities more compliant. This is particularly true as it relates to issues of understaffing. We know that more than a quarter of COVID deaths in this country have been nursing home residents and staff, while the industry also suffers through a historic staffing shortage caused by record numbers of staff resignations.
Clearly, increased fines for understaffing won’t cause more staff to be available.
Instead, such increased fines, along with the budget increases for enforcement agencies, would certainly take away resources that would be better spent on nurse-aide training, as well as scholarships for nursing students who choose to work in long-term care.
