In the past, any increase in Medicare payments for nursing homes would have been cause for celebration, but there were more thorns for the sector hidden in this year’s payment rule from the Centers for Medicare & Medicaid Services (CMS).
First, a 4.2% fee-for-service (FFS) increase, assuming you meet very exacting standards, only matters for the care of those on FFS. Today, most Medicare beneficiaries are on private plans that gouge Medicare providers and beneficiaries alike. In doing business with a monstrosity like UnitedHealth Group a nursing home may be lucky to receive a Medicare Advantage payment as high as what Medicaid pays.
This makes the annual bellyaching from the Medicare Payment Advisory Commission about FFS nursing home margins ring increasingly hollow, especially when it acknowledges the average nursing home is operating at a negative total margin, while payments to MA insurers “are 22 percent higher than what Medicare would have spent to cover the same group of enrollees in FFS.”
So, let’s assume the FFS increase has little or no, meaning for your facility. What are you left with?
Well, CMS abandons precedent articulated in a 1999 rule and now declares that per-day and per-instance civil monetary penalties of up to $10,000 apiece may be imposed concurrently. CMS defensively states that “[t]hese changes are not intended to punish a facility” – but it is hard to understand how removing precious funding from resident care, ostensibly to sanction improper resident care, is not punishment.
Strangely, CMS does not cite statutory authority for the changes but rather relies on the legislative history of the Nursing Home Reform Act of 1987, which is only persuasive if the statute is ambiguous. But it is not. To this day, it plainly states that civil money penalties are “not to exceed $10,000 for each day of substantial noncompliance[.]” I sincerely doubt the architects of the Act contemplated the bifurcation of penalties to artfully avoid this cap.
This change is even more concerning when a state like New Mexico, in effect, deputizes 42 vigilantes to survey facilities, based upon one-day training conducted remotely by the secretary of the Department of Health, a recently transplanted Oregonian with no survey background, and then turns them loose on facilities that same day. As if such brief remote instruction from an untrained pollical appointee was not bad enough, we are reassured “[a] recording was kept for those unable to attend in real-time.” Perhaps some listened to it with AirPods while barging into facilities.
This Kafkaesque episode is indicative of a sort of nursing home derangement syndrome, where someone like Sen. Elizabeth Warren (D.-Mass.), who made money defending a company against thousands of women sickened by defective breast implants, can tout their consumer bona fides by alleging only “greed” stands in the way of implementing an unfunded, impossible nursing home staffing mandate.
I have no reason to doubt research suggesting that improved staffing might save lives. That seems axiomatic. But if that is true, why has the federal government, or have states, not prioritized lives with adequate payment?
Recently my state gave a 30% pay increase to New Hampshire prison nursing staff as compared to an average 2.9% Medicaid rate increase for nursing home care on July 1. While this juxtaposition benefits the man who killed Manchester Police Office Michael Briggs, it doesn’t do much for perhaps the nation’s oldest nursing home population. I will welcome Sen. Warren if she wants to come to her neighbor state to help me make my case for nursing home caregivers.
Our priorities are askew, and the CMS payment rule is but a symptom of a larger malady.
Brendan Williams is the president and CEO of the New Hampshire Health Care Association.
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