600 of 15,000 nursing homes get gear as U.S. demands virus tests for staff

CMS-300x105Five months after national media sounded alarms about  a novel coronavirus savaging a Washington state long-term care center, federal regulators have begun to roust themselves with more vigor to safeguard hundreds of thousands of elderly, sick, and injured residents of nursing homes and other similar facilities.

The Centers for Medicare and Medicaid Services — which is supposed to be the country’s top long-term care watchdog — is barking lots now about its regulatory activity, including promises to send owners and operators billions of dollars more in aid, ordering staffers in areas of great virus risk to undergo weekly Covid-19 tests,  shipping equipment for them to do so, and ramping up inspections.

Owners and operators have offered guarded praise and thanks to the agency. But skeptics say it is yet more of the Trump Administration’s baleful pandemic response — too little and too late.

Christopher Laxton, executive director of AMDA, the Society for Post-Acute and Long-Term Care Medicine, told the Wall Street Journal:

“The need for testing, prioritizing nursing home residents and staff, has been known since March, and the federal government hasn’t been doing it.”

Lessons learned? Nope.

The new CMS initiatives, announced by the agency with news releases and promoted by the president in one of his renewed pandemic press sessions, came as experts noted that the worrisome Covid-19 surge in the South and West is showing just how little the coronavirus’ ravaging of facilities elsewhere warned owners and operators in new, so-called hot spots. As the nonpartisan Henry J. Kaiser Family Foundation (KFF) reported:

“Long-term care cases in ‘hotspot states’ with wider community transmission have risen at four times the rate as long-term care cases in non-hotspot states. Long-term care facility cases in 23 hotspot states where data are available rose by 18% over a 14 day period (from 123,000 cases to 144,800 cases), while long-term care cases in 12 non-hotspot states rose by 4% over a similar 14-day period (from 125,500 cases to 130,300 cases). These patterns indicate likely connection between widespread community transmission and long-term care cases, despite precautions in place in most long-term care facilities.

“The two states with the highest overall increase in cases statewide, Texas and Florida, also report the highest increase in cases in long-term care facilities, with both states reporting an increase of approximately 50% in long-term care cases between June 24th and July 9th and nearly a doubling of cases during this time period. These states, in particular, have garnered media attention, given the record-breaking numbers of new cases every day in these states. Experts have attributed these spikes to their quick pace of reopening, lack of social distancing measures such as face mask requirements, and increased population movement due to warmer weather.

While nursing homes, skilled nursing and assisted living facilities, and “memory care” centers may have heeded the disastrous experiences of others in their industry and locked themselves down, the seemingly toughened measures are showing themselves to be less than optimal, the Miami Herald reported, citing Florida’s situation:

“More than 6,700 staff and residents at nursing homes and assisted living facilities have been infected with Covid-19 in … July, a 129% rise that regulators blame on vendors and staff who unwittingly bring in the virus. But the state also played a role. Gov. Ron DeSantis and Secretary of the Agency for Health Care Administration Mary Mayhew say they have tried to keep coronavirus out by putting elder-care homes on lockdown since March. In June, they announced a plan to test nearly 200,000 staff for evidence of the virus every two weeks, and the governor has boasted that the efforts have ‘saved lives.’

“But for many in the industry who have been scrambling to halt the spread of the virus as it surged in their communities, there are two problems with the state’s approach to Covid-19: Testing has been too late and incomplete; and every day, thousands of vendors, staff and even state workers are allowed to enter long-term care facilities without proof they are free of the virus.”

No tests for nursing home inspectors

In California, furious health care workers who inspect nursing homes and other long-term care facilities (for both state and federal regulatory efforts) have blasted their state-employers for failing to ensure they have convenient, affordable, regular, and sustained testing, as well as appropriate personal protective equipment (PPE) for their critical, in-person visits. As the Los Angeles Times reported:

“The failure to provide reliable, systematic testing for inspectors is ‘crazy, just really alarming,’ said David Grabowski, a professor of health care policy at Harvard Medical School. ‘It makes basically no sense that we’ve locked these facilities down since March, keeping families out, only to learn inspectors have been moving from facility to facility without being tested.’”

State health officials have told inspectors to get tested on their own, but they have struggled to do so, hitting hurdles with delays, long waits for tests and results and costs — just as too many members of the public have experienced.

The newspaper also noted this disturbing aspect of California’s failure to ensure the safety of its own key personnel:

“In addition to nursing homes, the untested state inspectors are regularly visiting a wide range of health care facilities, including hospitals, surgery centers, dialysis clinics and home health centers. State health officials said they are not aware of any outbreaks that have been caused by an inspector introducing the virus.”

Calif. Gov. Gavin Newsom, the day after the newspaper published its investigation, ordered state officials to get tests for the inspectors.

CMS aid comes with strings

As for the CMS promise of increased financial aid to nursing homes and other similar facilities, it comes with strings and questions. The agency will release more money to owners and operators, provided their staff take a “23-module online, self-paced Nursing Home Covid-19 training program focused on infection control and best practices. Facilities are encouraged to post government-provided verification badges’ on their web sites to show proof of completion of the courses,” reported the industry-covering McKnights Long-Term Care News.

That’s an intriguing approach, both considering CMS’ own record of enforcement on infection control and the reality that facilities have said they are struggling to stay staffed at appropriate levels during the pandemic.

As Covid-19 infections have exploded in facilities, the low-paid, under trained, and over worked health care workers who provide the preponderance of 24/7 attention to residents have fled. Many labor at multiple facilities to make ends meet. Many have either quit to safeguard themselves and their own loved ones, or they have chosen to work only at centers where they feel more secure. Based on media reports about these workplace realities, it will be interesting to see how owners and operators will cadge time for their staff to get increased online training — even with “badges” as incentives.

It also is a matter of record that the agency itself has a dismal record with enforcing infection control policies and practices — CMS was slammed on this huge concern just weeks ago by the federal Government Accountability Office, one of Uncle Sam’s top watchdogs.

While owners and operators expressed thanks for the prospect of added aid, they also have recently decried the plodding pace at which CMS doled out money that Congress in March targeted to assist hospitals, clinics, and nursing homes and other long-term care facilities. Industry officials also have insisted that they will need more on the order of $100 billion, not $10 billion, due to Covid-19’s toll.

As for the agency’s new mandates about staff testing, the Wall Street Journal reported that this will require CMS to publish a rule, which top boss Seema Verma said would occur quickly.

The apparatus for homes to conduct tests, however, clearly will arrive more slowly. Verma originally said the devices and several hundred initial test kits would go out to homes nationwide, urgently. The agency has backtracked on that assertion, reporting now that 600 devices, with 400 test kits to start, will go to homes with great need because they are in areas where community spread of the virus is high. Tests will cost about $25 each.

To keep the CMS staff testing initiative in context, federal officials estimate that 1 million or so Americans live in nursing homes or other similar long-term care facilities, numbering more than 15,000. And as the Wall Street Journal reported of the agency plan:

“The weekly testing requirement would apply to any state where the percentage of overall tests in the community that come back positive is 5% or higher. Higher positivity rates can signal that outbreaks are more severe. More than half the states currently have 7-day moving averages for positive tests that eclipse 5%, according to Johns Hopkins University.”

What does even a little light math show, though? If half the states hit the standards so CMS requires nursing homes in them must occur, and if these half of the states have roughly half the facilities that would be affected, and if the agency has gotten out 600 testing machines, well, 7,500-600=6,900. So, how soon can the agency get out 10 times the number of testing units, plus hundreds of kits per?

Not good. In my practice, I see not only the harms that patients suffer while seeking medical services, but also the damage that can be inflicted on them and their loved ones by abuse and neglect in nursing homes and other long-term care facilities. The Covid-19 response to the nursing home nightmare has been shocking and unacceptable — by regulators, political leaders, and lawmakers at the federal, state, and local levels.

The disease and older Americans

Older Americans, from the start of the pandemic, have seen how the coronavirus all but seems to paint a target on their collective backs. As the Kaiser foundation also reported:

“A new KFF analysis finds that 80% of people who have died of Covid-19 in the U.S. to date were age 65 or older, though the share varies considerably by state — from a high of 94% in Idaho to a low of 70% in the District of Columbia. The analysis of data from the Centers for Disease Control and Prevention provides clear evidence of the toll that the novel coronavirus has taken on older Americans. It also provides a more detailed picture of where the impact on seniors has been the greatest.

“The analysis finds that states that have seen the largest share of Covid-19 deaths among people 65 and older include those that have had a disproportionate number of deaths in long-term care facilities. These states include Idaho (with 94% of deaths among those 65 and older), New Hampshire (92%), Massachusetts (90%), Rhode Island (90%), Minnesota (89%), Connecticut (89%), Pennsylvania (87%), Ohio (86%), Kentucky (84%), and Delaware (83%).”

The administration, most especially the president, is purportedly attempting a “reset” of the shambolic federal coronavirus response, including with increased, sympathetic outreach to seniors, who are deserting the sliding Trump re-election effort. Ya think? Older Americans consistently vote in greater numbers than any other age group. The gray bloc burgeons by the day, with 10,000 baby boomers reaching age 65 every day — and they will do so each and every day for the next decade.

Covid-19 does not care the age of those it infects. It does not matter to the coronavirus the political leanings or the home or institutional address of its victims. We Americans have lots of work to do to pull together and stop this debilitating and lethal affliction, including in how it is rampaging against the vulnerable and institutionalized.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
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