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Government Regulation of Nursing Homes

The Law Office Phillips & Allen PA Nov. 20, 2022

The Center for Medicare & Medicaid Services (CMS) is the component of the Federal Government’s Department of Health and Human Services that oversees the Medicare and Medicaid programs. A large portion of Medicare and Medicaid dollars is used each year to cover nursing home care and services for the elderly and disabled. State governments oversee the licensing of nursing homes. In addition, states have a contract with CMS to monitor those nursing homes that want to be eligible to provide care to Medicare and Medicaid beneficiaries. Congress established minimum requirements for nursing homes that want to provide services under Medicare and Medicaid. These requirements are broadly outlined in the Social Security Act (the Act). The Act also entrusts the Secretary of Health and Human Services (DHHS) with the responsibility of monitoring and enforcing these requirements. CMS, a DHHS Agency, is also charged with the responsibility of working out the details of the law and how it will be implemented, which it does by writing regulations and manuals.

CMS contracts with each State to conduct onsite inspections that determine whether its nursing homes meet the minimum Medicare and Medicaid quality and performance standards. Typically, the part of State government that takes care of this duty is the health department or department of human services. In Maryland, the Department of Aging within the Department of Health and Mental Hygiene is responsible for protecting the health and safety of nursing care institutions. The State conducts inspections of each nursing home that participates in Medicare and/or Medicaid twice per year. Nursing homes pursuant to the Social Security Act are required to cooperate with the Maryland Department of Aging in mandatory unannounced biannual inspections. If the nursing home is performing poorly, however, the State inspectors may go in more frequently. The State also investigates complaints about nursing home care. During the nursing home inspection, the State looks at many aspects of quality. The inspection team observes resident care processes, staff/resident interaction, and environment.

Under Maryland law, each nursing home must establish a quality assurance program, which consists of the nursing home administrator, the director of nursing, medical director, a social worker, licensed dietitian, and a geriatric nursing assistant. The program at each nursing home maintains records of the quality assurance plan, and provides criteria that routinely monitors nursing care including medication administration, prevention of decubitus ulcers, dehydration and malnutrition, nutritional status and weight loss or gain, accidents and injuries, unexpected deaths, changes in mental or psychological status, and any other data necessary to monitor quality of care.  These records are incorporated in monthly reports and are available to the ombudsman for investigation of complaint.

Depending on the nature of the problem, the law permits CMS to take a variety of actions; for example, CMS may fine the nursing home, deny payment to the nursing home, assign a temporary manager, or install a State monitor. CMS considers the extent of harm caused by the failure to meet requirements when it takes an enforcement action. If the nursing home does not correct its problems, CMS terminates its agreement with the nursing home. As a result, the nursing home is no longer certified to provide care to Medicare and Medicaid beneficiaries. Any beneficiaries residing in the home at the time of the termination are transferred to certified facilities.

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