As virus burned through nursing homes, inspectors cleared most of infection violations

chairinhomeDisturbing new data shows that a much-promoted plan by federal watchdogs to protect vulnerable residents of nursing homes and other long-term care facilities from Covid-19 resulted in dismal outcomes, with inspectors dispatched by the Centers for Medicare and Medicaid services largely dismissing infection-control concerns as the deadly pandemic raged.

“During the first six months of the crisis [inspectors] cleared nearly 8 in 10 nursing homes of any infection-control violations,” even as tens of thousands of facility residents were infected and died from the coronavirus, the Washington Post reported.

The newspaper’s investigation found this:

“Those cleared included homes with mounting coronavirus outbreaks before or during the inspections, as well as those that saw cases and deaths spiral upward after inspectors reported no violations had been found, in some cases multiple times. All told, homes that received a clean bill of health earlier this year had about 290,000 coronavirus cases and 43,000 deaths among residents and staff, state and federal data shows. That death toll constitutes roughly two-thirds of all covid-19 fatalities linked to nursing homes from March through August.”

The number of nursing homes that were flagged stayed consistent with the previous, non-pandemic year. Facilities, for months, faced light penalties, and CMS — the federal overseer of nursing homes and long-term care — has moved slowly, if it all, to collect from institutions, owners, and operators hit with sizable fines.

The rigor of the federal inspection regimen has been dubious from the outset. Inspectors, many of whom work with state health departments but assist CMS, did their work in haste and under difficult circumstance. They often telephoned homes as part of their checks because they could not get in the locked-down facilities and might not have wished to put themselves or residents at risk, with inspectors too often lacking testing and personal protective equipment (PPE).

Charlene Harrington, a sociology and nursing professor at the University of California at San Francisco who has studied the industry for more than 30 years, commented to the Washington Post about the harried and ineffectual federal inspection initiative:

“I can’t think of one decision that CMS made properly. They just rolled over, whatever the nursing homes wanted. CMS made it so much worse than it could have been if they had just kept their oversight in place.”

CMS critics and patients safety advocates say they know that infection-control measures, even if increased and at peak performance during the pandemic, may not have prevented the aged, sick, and injured from getting ill or dying of the coronavirus. Other factors, such as community-spread and the prevalence of the infection in an area, figure in, often in major fashion. Still, homes that put the controls in — or had them in before — have fared better than those that did not.

And the lax inspections have made it much harder to hold owners and operators accountable for problems that occurred during the pandemic and getting them to address long-running challenges in their operations, critics say. The homes can point to their crisis checkups to underscore their claim that they did as best as they could for their residents during unprecedented times.

CMS chief Seema Verma defended her agency’s pandemic response, saying it was robust and not punitive, telling the Washington Post: “I don’t think there’s any intent on our end to not hold nursing homes responsible for their actions. From the very beginning, CMS fought to go into these nursing homes.”

The newspaper reported:

“Through a spokesperson, CMS added that the inspection process was not meant to be punitive and that nursing homes were given instructions on how to be compliant in advance of the inspections. The explanation appears to counter some of the agency’s public comments, which described aggressive enforcement’ against homes that failed to practice proper infection-control protocols.”

This context also is invaluable from the newspaper investigation of the agency’s limp work:

“The inspections follow a three-year push at CMS to ease rules long considered burdensome to the nursing home industry, whose lobbyists and leaders include former politicians and government insiders. Even before the coronavirus crisis, the agency took steps to limit the use of some fines and strike an Obama-era mandate requiring nursing homes to bring on at least part-time infection preventionists. Many states launched their own oversight efforts in recent months, conducting infection-control reviews, moving to close homes and in a handful of cases opening criminal investigations. States have also imposed other penalties on behalf of CMS, such as requiring staff training, and in some cases denying Medicare payments for new admissions.”

CMS also says it has stepped up the inspecting and fining of homes, as knowledge about the coronavirus has allowed its personnel to act more aggressively.

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 by abuse and neglect in nursing homes and other long-term care facilities. It will be an imperative of the post-pandemic era, which the nation eventually will get to, to investigate and hold accountable politicians, regulators, owners, and operators of long-term care facilities for the suffering and death that has occurred in nursing homes during the pandemic. Some of the harmed — residents and their loved ones — may seek justice in the civil system.

But for now, it also is disheartening to see that vital steps to protect the vulnerable still have not been addressed in the shambolic federal pandemic response. Not only have multiple respected researchers reported that facilities are struggling with staffing and PPE issues, NBC News has posted an article finding that nursing homes and other smaller care facilities are getting shut out of necessary gear like gloves, masks, and gowns, as coronavirus cases surge coast-to-coast in concerning fashion and big institutions stockpile goods they fear they will need.

Dr. Michael Wasserman, immediate past president of the California Association of Long Term Care Medicine, told the broadcast network that the U.S. is showing, in spades, the priority it puts on protecting the old, as it allows a lack of supplies for smaller providers like nursing homes: “Here we are in October, and the fact that there is not an abundance of PPE for every nursing home in the country is a literal abomination. Without PPE, you lose to this virus.”

We’ve got a lot of work to do to not only battle the coronavirus but also to determine how we can get nursing homes and other long-term care facilities into a far better spot than where they are now.

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