Constantine Cannon and AARP Foundation Represent Advocacy Groups on behalf of Nursing-Home Patients to Ensure Facility Accountability
Constantine Cannon LLP proudly joins the AARP Foundation in representing the National Consumer Voice for Quality Long-Term Care and California Advocates for Nursing Home Reform in a lawsuit seeking to roll back a directive undercutting accountability for nursing homes that violate federal standards. The federal Nursing Home Reform Act of 1987 allows states to recommend to CMS that a non-compliant facility pay civil monetary penalties (CMPs) “for each day” that a past violation remained uncured. This enforcement tool deters gross deficiencies that endanger patients and holds derelict facilities responsible. Following nursing-home industry lobbying, CMS suddenly announced in July 2017 that, regardless of state findings and recommendations, CMS would impose a penalty only “per instance” of a violation – no more than $22,320 — rather than per day, so long as it was corrected before the state survey was conducted.
“This means that a nursing home that has knowingly violated a safety standard for months could clean up its act the day before a state inspection and receive a per-instance CMP,” says Constantine Cannon partner Henry Su, who leads the firm’s effort in this public interest lawsuit. The policy change so alarmed 17 state attorneys general that in May 2018, then-California AG Xavier Becerra (now HHS Secretary-designate) penned a letter on their behalf to the prior administration, explaining that dramatically lowering the prospect of penalties removed the facilities’ motivation to take earlier steps to remove dangerous conditions.
Particularly during the COVID-19 pandemic, when inspections are curtailed and compliance with infection control, staffing, and other resident-safety standards is critically important, both state and federal oversight should have all lawful and effective tools available. It is hoped that this lawsuit will play a role in reversing the sudden policy change that weakens enforcement of legal standards as well as the compliance infrastructure intended to safeguard vulnerable long-term care residents.
- Constantine Cannon Attorney Henry Su
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