It’s past time for full disclosure about the Covid-19 nursing home nightmares

calguard-225x300When hundreds of thousands of Americans are getting infected with Covid-19 and tens of thousands of die from it, regulatory incrementalism in protecting some of the most vulnerable is simply unacceptable: The latest halting measures by the Centers for Medicare and Medicaid Services do a disservice to the elderly, injured, and sick residents nationwide in nursing homes, long-term care centers, and skilled nursing facilities.

Seema Verma, the agency’s director, has told these institutions that they now must inform residents and their loved ones about Covid-19 infections and deaths in the care facilities, whether the affected individuals are staff members or others housed in the centers.

She only started, however, to respond to coast-to-coast wails about the official silence that has enshrouded the novel coronavirus’ toll on institutional care, with facilities condemned in increasing fashion by critics as infection petri dishes, or as one politician deemed them, “death pits.”

The Wall Street Journal, New York Times, NBC News, and the Los Angeles Times have done independent digging to find staggering data — with the Journal reporting most recently that 10,000 residents of nursing homes or long-term-care facilities across the country have died due to Covid-19.

But friends and loved ones have for weeks now been kept in the dark about the problem’s scope, despite ringing alarms such as an early, deadly outbreak in Washington state. CMS, early on, announced that it would ease up on nursing home inspections overall, preferring to devote resources to facilities with histories of problems or hot spots.

The Los Angeles Times has shown how misguided this plan would be, reporting that “89% of [skilled nursing] facilities with the coronavirus had previous infection control violations that ranged from mishandling patients with highly contagious bacterial infections to not properly cleaning ventilators and other equipment. The data raised new questions about how prepared nursing homes and regulators were to deal with the pandemic.”

State officials, along with their federal counterparts, have taken huge and deserved heat, too, for failed oversight and disclosure about major institutional infection problems, before and after the Covid-19 outbreak. They relented only as panicked families and friends demanded information, so they could make heart-wrenching decisions about loved ones in facilities where sickness and death spread. How bad were the outbreaks? Would it force them to try to handle the extreme burdens of caring for a frail, elderly, debilitated, injured, or cognitively constrained loved one, bringing them into their homes, isolated under Covid-19 public health measures?

It is past time to break the unacceptable silence about institutional infections, because not only patients, staff, and loved ones need to know — so, too, must we the taxpaying public.

Signs clearly point to just how much we will be forced to clean up a huge mess with these facilities: The California National Guard has been called in to assist with infection overrun nursing homes in Los Angeles County (see agency photo above), where 40% of the deaths diagnosed due to the novel coronavirus have occurred in such facilities.

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 nursing home neglect and abuse. CMS and its state counterparts need to stop abetting profit-seeking owners and hiding big problems in the institutional care for the old, sick, and injured. The poorly paid, overworked, and stressed out front-line health workers in these facilities, in general, deserve praise for their diligence and courage in staying at their duties under extreme conditions. But as for their bosses and the facility owners …

Patient safety advocates and savvy journalists have reported on the distressing deal with the devil that has kept officials mostly mum about this situation — they know that long-term care facilities long have had infection control and other significant challenges. But the U.S. health care system has been jerry-rigged, so the facilities play a crucial role: Hospitals, with their costs skyrocketing without seeming limit, have come under political and regulatory pressure to empty their beds as fast as possible, moving patients into less precious and costly spaces. This is especially true when hospitals get overloaded, as Covid-19 can make them with cases requiring intensive care.

So, hospitals need other places to handle the aged, infirm, sick, and injured. These patients may be vulnerable and frail to the extreme. But the system’s answer has been to put them in nursing homes, or in grim, purported recuperative settings — where, as reporters have found, too many patients, especially the older and worst off, exit only by dying. No one pretends that the facilities have the staff, equipment, or capacity to provide medical services akin to those found at hospitals. So, patients get shuffled back and forth — to their detriment and to their loved ones’ dismay.

When the system is stretched to its max, as has occurred with Covid-19, officials also have locked into not only non-disclosures about the severity of problems, such as with flaring infections. They also have locked down politicians from talking about the nightmares, and, maybe, too, into tackling them. This includes unacceptable failings in staffing, infection control and testing, and providing needed equipment and protective gear. News organizations report that states from coast-to-coast are waiving legal liability for institutions and the horrors occurring in them, even as the usual extreme voices call for faux “tort reforms” and even more dubious constraints on injured parties seeking remedy and exercising their constitutional rights in the civil justice system.

Those steps are the wrong ones. Medical malpractice lawsuits, for example, play a crucial role in helping to expose wrongdoing, systemic flaws, and to improve the U.S. health system. Instead, particularly in Congress, leaders need to be thinking to the days ahead and planning oversight hearings on what will be needed so Americans can be better positioned when they grow old, get sick, or suffer injury and require institutional care. The industry already is beset by its financial calamities — not just facing huge costs for Covid-19-related costs but also in sorting through its very underpinnings, including with profit-grabbing investors, maddening real estate and financial investment scheming, and lack of investment in safe, efficient, and welcoming facilities much less appropriate and well-trained staff.

The nation is graying rapidly, and the pandemic may have accelerated its time of reckoning with how it will care for its seniors, members of one of the largest demographic groups in U.S. history. We have got a lot of work to do.

Patrick Malone & Associates, P.C. listed in Best Lawyers Rated by Super Lawyers Patrick A. Malone
Washingtonian Top Lawyer 2011
Avvo Rating 10.0 Superb Top Attorney Best Lawyers Firm
Contact Information