The Reagan administration's penchant for curtailing federal regulations and turning responsibility over to the states has been adopted by a special task force drafting proposals for regulating skilled nursing facilities. And state nursing home regulators aren't very happy about it.
The proposed regulations haven't been sent yet to Health and Human Services Secretary Richard S. Schweiker, but copies have leaked from the task force and controversy has already started to grow.
In general, critics of the effort to make the regulations more flexible and to rely more heavily on the states for enforcement argue that cuts in federal aid to the states are making it more difficult for them to do their job at the same time that the federal government is proposing to increase the load.
The current proposals are for skilled nursing facilities only; the task force is just beginning to review the regulations that govern "intermediate care" facilities, homes that are basically custodial.
Some critics are concerned that under the current proposals, federal standards for staff hygiene and sanitary conditions in nursing homes, for example, would apply only if a state had no standards of its own. Because requirements vary widely from state to state, the critics argue that nursing home care will deteriorate. Other critics are concerned because the proposals would eliminate nursing home regulations that are covered by other parts of the federal code, making it harder for nursing homes to know what rules they are supposed to follow.
Present federal regulations require that nursing homes receiving Medicare and Medicaid funds comply not only with federal laws and regulations but also with the state's. The draft proposal suggests elimination of this requirement, because "meeting other state laws is a responsibility of the state and need not be repeated in federal regulations."
Sharon Ware, director of licensing and regulation for Kentucky's Department for Human Resources, said that based on her reading of the draft, one of her state's most effective enforcement tools--decertification under federal regulations--will be taken away. Under current rules, if a home is decertified, federal payments stop immediately. Since the federal government pays a large portion of nursing home fees, this, in effect, forces substandard homes to close.
Even with strong state laws and regulations, Ware said, a substandard nursing home can operate for a year or more by going into court against the state. "If I'm faced with a nursing home where people are starving," she said, "I need to act quickly, within a matter of hours or days, not months or years."
Bill Wilkins, director of health licensing certification for South Carolina, said the decision to lean more heavily on the states comes at a time when his staff is being reduced because of cuts in federal aid. Wilkins said his budget for certifying nursing homes under Medicare and Medicaid has been cut from $300,000 to $175,000 and his staff has dropped from 38 to 14.
The federal budget cuts amount to an "abandonment of the aged," said Wilkins, who is also president of the association of health facilities licensing directors. "In a few years," he said, "we're going to be right back where we were in the late '60s and early '70s."
The draft also proposes eliminating the requirements that skilled nursing facilities identify the needs of patients for social services, such as social workers and psychologists.
This has been deleted, according to the draft, because federal law prohibits the secretary of health and human services from requiring that nursing homes provide the social services.
Elma Griesel, executive director of the National Citizens Coalition for Nursing Home Reform, said that if this requirement is deleted, many nursing homes that now provide the services would eliminate them.
The draft says the task force will consider specifying elsewhere in federal regulations what medical social services a nursing home "may provide and that would be reimbursed under Medicare and Medicaid."
Nursing homes also would not have to accommodate the handicapped and disabled, under the proposal. The draft said this duplicates federal anti-discrimination laws, and enforcement should be left with HHS's Office for Civil Rights.
The proposal does retain a provision for a patient's bill of rights, a decision Griesel applauded because the task force had tentatively decided to eliminate it. The bill of rights is weaker, however, than one that was proposed by former secretary Patricia R. Harris and killed by the Reagan administration.
Claire Dorrell, a spokeswoman for Schweiker, said that the task force hopes to complete its work by the end of the month. The proposal then will go for review to Carolyne K. Davis, head of the Health Care Financing Administration, before being sent to Schweiker's staff for study. As a result, Dorrell said, it will be several months before the new regulations are formally proposed.
In any case, she said, Schweiker "will never approve anything under the guise of regulatory reform that will detract from any of these patient rights or health or safety. He will never put his signature to anything like that."