Nursing homes, still coping poorly with Covid-19, turn to lobbyists to shield them from legal accountability

nhomehall-300x206Covid-19 infections and deaths are spiking anew in nursing homes and other long-term care facilities, hitting worrisome levels not seen since months ago in the pandemic. The unchecked mess in centers nationwide, but especially in the South and West, is prompting more attention to them — from lobbyists boasting White House ties, health worker “strike teams,” and Big Pharma investigators.

But even as the nation’s top overseer of long-term care calls on institutions to step up their infection control and other coronavirus-fighting efforts, researchers say that 1 in 5 nursing homes and other long-term care facilities report they lack enough personal protective equipment and staff. This occurred as recently as in July — not just at the start of the pandemic.

Even as Seema Verma, the head of the Centers for Medicare and Medicaid Services, told the owners and operators of care facilities that her agency has “deep concern … that even in nursing homes that are doing testing on a regular basis, we are still seeing significant spread,” experts from Harvard and the University of Rochester published findings on nursing homes in a health care policy journal, concluding:

“Many nursing homes in the U.S. are poorly prepared to prevent and manage Covid-19 outbreaks given a lack of essential PPE and staff. Despite intense policy attention and mounting mortality, the shortages have not meaningfully improved from May to July of 2020. Unless these shortages are prioritized by policy makers, long-term care residents will continue to be at a great disadvantage in the pandemic.”

The rise of ‘strike teams’

The New York Times reported that state and federal officials have tried to get smarter and faster in responding to coronavirus cases in nursing homes, especially knowing, as Verma observed, that just one or two cases in a facility can lead to the disease’s wildfire spread. Agencies around the country are banding together in their area to create “strike teams” to attack coronavirus infections in care giving institutions:

“Covid strike teams apply an emergency response model traditionally used in natural disasters like hurricanes and wildfires to combating outbreaks in long-term care facilities. Composed of about eight to 10 members from local emergency management departments, health departments, nonprofit organizations, private businesses — and at times, the National Guard — the teams are designed to bring more resources and personnel to a disaster scene.”

The teams can provide an array of desperately needed expertise and experience to owners and operators who may be overwhelmed by coronavirus cases. It also may be that having added personnel on hand can give exhausted and stressed health workers, administrators, and other staff a hugely needed break. The presence of a strike team also can give assurance to the elderly, sick, and injured residents and their loved ones.

Persistent staffing problems

Still, the teams do not stay and are not meant to provide long-term assistance to long-term care institutions. And as the experts pointed out in their study in “Health Affairs”:

“It is also notable that the most prominent staff shortages were for nurses and nursing aides as opposed to clinicians or other staff. Shortages in these staff were common prior to Covid-19, but the pandemic is straining an already over-stretched workforce with low pay and demanding work environments. This point is supported by the finding that homes with lower staffing quality scores before the pandemic were more likely to report current shortages. Nurses and nursing aides are on the front line of care delivery, with daily, or even hourly, contact with residents. These shortages could have a major impact not just on the ability of nursing homes to adhere to standard infection control protocols, but also their capacity to provide necessary ongoing care not directly related to Covid-19.”

The researchers added:

“It is concerning, although not unexpected, that more disadvantaged or lower quality nursing homes, such as those with a higher percent of revenue from Medicaid or those with lower star ratings, have worse staff shortages … While nursing homes across the spectrum of quality and patient mix reported shortages, we observed a fairly stark disparity, with 29% of 1-star nursing homes reporting a shortage vs. 16% of 5-star nursing homes. This disparity illustrates that policies to address shortages will need to account for the heavier burden among nursing homes serving more disadvantaged populations.”

Owners, operators seek out high-powered lobbyists

Owners and operators of long-term care institutions, alas, have resorted to a familiar path for help and relief with their coronavirus nightmares — they’ve turned to pricey political arm-twisters, as the New York Times reported:

“Nursing homes have been the center of America’s coronavirus pandemic, with more than 62,000 residents and staff dying from Covid-19 at nursing homes and other long-term care facilities, about 40% of the country’s virus fatalities. Now the lightly regulated industry is campaigning in Washington for federal help that could increase its profits. Some of the country’s largest nursing-home companies — including those with long histories of safety violations and misusing public funds — have assembled a fleet of lobbyists, many with close ties to the Trump administration.

“Eliezer Scheiner, a nursing-home owner and major donor to President Trump, recently retained Brian Ballard, a friend of the president who used to lobby on behalf of Mr. Trump’s business. Genesis Healthcare, the largest nursing-home chain in the United States, hired two former top White House aides, including Jim Schultz, a former special assistant to Mr. Trump. LifeCare Centers of America, whose Kirkland, Wash., facility had the country’s first coronavirus outbreak in March, brought on four former Republican Senate aides. The industry’s main trade group enlisted Haley Barbour, a former chairman of the Republican National Committee. It is hardly unusual for embattled industries to seek help from Washington. But the fact that individual nursing-home companies are hiring lobbyists, not just relying on trade associations, reflects the ambitious nature of the industry’s mobilization.”

As the newspaper reported, industry leaders see their institutions’ miserable safeguarding of their residents’ lives and well-being as cause to squeeze politicians for billions of dollars in taxpayer assistance as well as big tax breaks, and shields from lawsuits over harms they may have inflicted.

Really? 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 relentless suffering, sickness, and death that has exploded in these institutions has gone beyond unacceptable and at some point there must be a reckoning for owners, operators, politicians, regulators, and any others who have left vulnerable the nation’s confined elderly, sick, and injured. Long-term care centers are filled with living, breathing, hurting human beings — they are not fungibles to be accounted for only on equity investors’ P&L statements.

The pandemic has created harsh and unprecedented conditions of great challenge. But these also have exposed how ill-prepared and ill-suited too many institutions have been and are to take responsibility for fragile lives. How seriously should the public hear the poor-me cries from corporate interests in this slice of the U.S. health care system, especially when, even in the midst of the sickness and death of Covid-19, the always profit-ravenous Big Pharma sees opportunity in the disease-stricken facilities.

Big Pharma’s nursing home trials

The New York Times, separately, reported that pharmaceutical enterprises are finding how they can and must take the needed scientific scrutiny of potential, blood plasma-based Covid-19 therapies to prospective, elderly test subjects in the confines of their long-term care facilities. There, Big Pharma hopes to conduct rigorous study to see if experimental therapies can not only slow sweeping coronavirus outbreaks in nursing homes and other long-term care facilities but also to unlock a new treatment for the disease.

The experts interviewed for the news article credit the drug makers for including older. Institutionalized subjects in the complex, difficult clinical trials of a possible “monoclonal antibody, an artificially synthesized version of coronavirus antibodies produced by the body. In this case, the antibody was ‘cloned’ from those found in the blood of a Seattle man, one of the first patients to survive Covid-19 …”

OK, and just how much money will the firms make if the therapy shows positive outcomes in caring for Covid-19 patients, especially in extreme and demanding circumstance?

The adage may hold that no crisis should go wasted — at least for the positive change it can bring. We’ve got a lot of work to do to ensure that Covid-19’s terrible toll helps move nursing homes and long-term care facilities to not just what they were before the pandemic but something far better, safer, and more desirable a place to live for their residents in major need.

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