Following the Supreme Court’s overturning of the Chevron decision, the nursing home industry is challenging federal rules that have not yet been issued. In a letter to the CMS Administrator Chiquita Brooks-LaSure, Leading Age, writing for itself, the American Health Care Association, and nine other provider associations, share their concerns about proposed rules that would authorize CMS (1) to impose both per instance and per day civil money penalties (“CMPs”) for deficiencies identified during a survey and (2) to extend from one to three years the period for CMPs imposed for past noncompliance. Among their arguments, providers claim that “More CMPs would divert funds from care and services for residents.”
The providers’ argument ignores the requirements of federal law. In 1987, as part of the Nursing Home Reform Law, Congress explicitly prohibited nursing facilities from using Medicaid reimbursement, which facilities receive to provide care and services to residents, to pay civil money penalties. 42 U.S.C. §1396b(i)(8) states that Medicaid payments may not be used “ (A) for nursing facility services to reimburse (or otherwise compensate) a nursing facility for payment of a civil money penalty imposed under section 1396r(h) of this title.”
The 1987 law also expressly states that Medicaid reimbursement cannot be used “for legal expenses in defense of an exclusion or civil money penalty under this subchapter or subchapter XI if there is no reasonable legal ground for the provider’s case.”
CMS should require nursing facilities to account for the millions of dollars in Medicaid funding that they received for resident care and to promptly repay any Medicaid reimbursement they unlawfully used to pay CMPs and related attorneys’ fees. There will be more than enough money to pay for implementation of the nurse staffing rule.
July 13, 2024 – T. Edelman