WASHINGTON–AARP Foundation and Constantine Cannon LLP filed a lawsuit yesterday, alleging that the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) have put nursing home residents’ lives at risk by weakening enforcement of the Nursing Home Reform Act (NHRA). The suit centers on a July 2017 directive from CMS that restricts monetary penalties for nursing homes that violate federal law. Under the directive, states and CMS may only impose a one-time fine for a violation, not to exceed $22,320, rather than a fine of up to $22,320 for each day of noncompliance.

The plaintiffs allege that this policy violates the Administrative Procedure Act and exposes nursing facility residents to dangerous conditions, because it removes the incentive for facilities to identify and correct problems as quickly as possible. The need to enforce health and safety standards has grown even more acute during the coronavirus pandemic, which has claimed the lives of more than 136,000 residents and staff in long-term care facilities and led to well over 1.1 million infections.

“CMS’s decision to severely limit monetary penalties for nursing homes that do not follow the law has had devastating consequences for residents and their families. It is not an exaggeration to say that people’s lives hang in the balance. CMS must reverse this harmful policy and restore protections for people living in nursing homes,” said AARP Foundation Vice President for Litigation Kelly Bagby.

“Without strong enforcement, facilities have little impetus to identify and correct faults on their own,” added AARP Foundation Senior Vice President for Litigation William Alvarado Rivera.

The lawsuit was filed on behalf of California Advocates for Nursing Home Reform (CANHR) and the National Consumer Voice for Quality Long-Term Care.

“The infrastructure we have in place to advocate for and safeguard the health and welfare of nursing home residents rests on an enforcement scheme with actual teeth,” said Henry Su, a trial attorney with Constantine Cannon LLP. “CMS’s directive regarding the imposition of per-instance fines for past violations raises longstanding concerns about penalties that amount to a ‘cost of doing business’ for noncomplying nursing facilities, which are manifestly ineffectual.”

“The size and scope of a civil monetary penalty matters,” said Lori Smetanka, Executive Director of the National Consumer Voice for Quality Long-Term Care. “By changing the policy, CMS not only put the interests of facilities above that of the residents, but it allows a mere slap on the wrist for even the most egregious problems. The harm a resident suffers should be worth more than that.”

Patricia McGinnis, Executive Director of CANHR, noted that: “Hundreds of residents are dying from COVID-19 every day in facilities that have had years of uncorrected infection control deficiencies—because CMS has failed to ensure adequate safety and meaningful accountability. CMS’s push for per-instance penalties ties the hands of the enforcement agencies at a time when all hands are desperately needed.”

The full complaint can be read here.

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About AARP Foundation
AARP Foundation works to end senior poverty by helping vulnerable older adults build economic opportunity and social connections. As AARP’s charitable affiliate, we serve AARP members and nonmembers alike. Bolstered by vigorous legal advocacy, we spark bold, innovative solutions that foster resilience, strengthen communities and restore hope. To learn more, visit www.aarpfoundation.org or follow @AARPFoundation on social media.