Trump Administration Quietly Deregulates Nursing Homes

Over the last year, the Trump administration has weakened the regulatory structure surrounding nursing homes and assisted living facilities throughout the country. The weakened regulations are part of a broader push to limit government interference in the private sector, a criticism the new administration has lobbed at former President Obama. Throughout the last year, the number of nursing homes fined has been reduced, the number of fineable offenses has been reduced, and unsurprisingly, the dollar amount of the average fine against nursing homes has also seen a reduction. Over the last year, the Trump administration has also reinstated the ability for nursing homes to include mandatory arbitration clauses in their agreements with their potential residents.


Mandatory Arbitration Clauses Now Allowed in Nursing Home Agreements

According to the New York Times, the deregulation of the nursing home industry began in June of 2017 when the Trump administration ended a ban on mandatory arbitration clauses between residents and their nursing homes. Proponents of mandatory arbitration clauses, a form of alternative dispute resolution, state that it allows for justice and closure for both parties much more quickly than working those potential issues through the slow court system. Advocates for elder rights state that the clauses remove the due process rights of victims and limit access to evidence that the elderly need to prove their cases. Furthermore, by joining a nursing home, the elderly resident is already admitting that he or she is unable to completely take care of him or herself. It is unrealistic to expect these individuals to then knowingly and voluntarily relinquish their rights through an arbitration clause, especially because nursing homes often reject any potential residents who do not agree to the mandatory arbitration clause.


Daily Fines Against Non-Compliant Nursing Homes Now Used in Rare Cases

The next month, in another memorandum issued by the Trump administration, CMS changed its fee schedule for fining non compliant nursing homes. The revised directive with the most impact involves daily fines for nursing homes violating the law. Previously, a nursing home would receive a fine for every violation, and then a daily fine each day until the unlawful behavior was corrected by the nursing home. A complaint by a resident, medical professional, or family member could “tip” off regulators who, upon finding a violation, would fine the facility. Under the new directive, a single-fine for violations would suffice in most circumstances. Daily fines may only be levied against nursing homes if the violation is found during the once-a-year inspection by CMS regulators.


Certain Violations Should No Longer be Finable Offenses

In October 2017, the Trump administration released a memo detailing the Center for Medicare and Medicaid Services (CMS) new approach to fining nursing homes found in violation of the regulations and rules meant to protect elderly residents. CMS should ignore a “one-time mistake or accident” and instead focus on fining violations that constitute “larger systematic concerns, or an intentional action of disregard for resident health and safety.”

The last memo released to CMS by the Trump administration during 2017 curtailed enforcement for eight regulations. While the rules are still technically in effect, nursing homes will not receive any fine or punishment for the next 18 months.

Proponents of the aggressive deregulation point to sky-high fines paid by nursing homes, money which, according to the nursing homes, should be spent on nursing home residents and improving their quality of life – not pacifying government regulators with exorbitant fines. Advocates of elder care worry that a largely unregulated industry filled with a vulnerable population will suffer the brunt of CMS’s friendlier approach to nursing homes.


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