Enforcement or Reinforcement: Will reinforcement rules solve the problem of systemic in-humanism with fewer police for better resolution of differences? By: Jerry Rhoads, CPA, LNHA
This symbiotic pursuit of equality can be traced to the current use of enforcement versus reinforcement of the law and regulatory system we have in America. My family and I were consultants to nursing homes for twenty years and owners for seven years. We had a mission to change the culture of inhuman treatment of the elderly in nursing homes. This grew out of my being a CPA who was involved in implementing Medicare and Medicaid rules and regulations in the late 1960’s and 1970’s. I was a consultant with Arthur Andersen & Co. the largest public accounting firm in the country at the time. Our client Blue Cross of America gave us the assignment to teach physicians, hospitals, nursing homes, etc. how to bill and report costs for inpatient care. Later outpatient and hospice were added to the rules.
Over the years the enforcement of the rules and costs expanded at a frightening rate. The Federal government (Congress) assigned the implementation of Medicare and Medicaid to the States who then developed survey teams to enforce the rules by later imposing fines and threats of imprisonment for those providers who, according to their arbitrary and capricious interpretation of the law were penalized with civil money fines and denial of claims, that violated their fifth amendment rights to due process. The Federal Fifth District Court found that this deprived the beneficiaries of Medicare and Medicaid right to insurance coverage. Our consulting business was to assist the providers to appeal those Fiscal Intermediary decisions and resulted in other law suits that the Department of Health and Human Services and Public Health officials ignored.
When my family decided to purchase and run skilled nursing facilities in Iowa and Arkansas we acquired failing businesses and thought these illegal practices by the State and Federal Government would be solved at the local level by changing the culture and providing better care and clean up the undesirable environment resulting in violations and premature deaths. But we found early on that the enforcement tactics were being used against us and did eventually forces us to sell the three facilities in 2015. I wanted to sue the Iowa Department of Survey and Enforcement but couldn’t get any attorney to take on Big Brother. During the time we were attempting to sell the Iowa facilities the State surveyors retaliated against us with $360,000 in fines and unscrupulous allegations released to the media that destroyed our ability to close on the sale and put us in Chapter 11 bankruptcy until we found another buyer a year later.
I also had written newspaper articles about the illegal survey process asserting that our patients fifth amendment rights to due process were violated when we weren’t paid for claims and had to wait a year for a $900.000 rate adjustment. My reasoning for proposing a change in the enforcement tactics by the survey process to implement reinforcement rules to promote better care for better reimbursement. This was implemented in Illinois in the 1980’s and worked for those providers who qualified for the six stars of quality as defined in the State Survey rules. Although that system was extremely successful while I was managing skilled nursing facilities the large chain operators got it thrown out because their facilities couldn’t meet the quality of life standards of each star while the excellent facilities who were in the 5- and 6-star category were getting civil money bonuses for each star attained. And my facilities qualified for the maximum of 6 stars and got hundreds of thousands of dollars for excellent quality of life outcomes.
My point is the use of reinforcement rather than police enforcement for compliance to the rule of law may well solve the problems we are having with the Black Lives Matter violent response. Rather than un-funding the police we need to use humanism rules for maximizing quality of life. This could be done using a social service division in the police departments assigned with the responsibility of quelling social injustice that escalates out of social compliance with our rule of law. Under the six-star system the nursing homes improved by using reinforcement surveys looking to reward quality with better payment rates rather than penalties for non-compliance … proving that reinforcement works and enforcement doesn’t.