Nursing homes ‘dumping’ residents and defying ordered safeguards

covidpleasantview-home-300x111Owners and operators of nursing homes and other long-term care facilities have mounted a “nimfy” (Not My Fault) defense for the tens of thousands of deaths and infections of their residents during the Covid-19 pandemic. They claim they did the best they could under tough circumstances. And now they want not only special legal protections from those who suffered harms but also taxpayer bailouts.

But the industry’s disingenuous bleating has a big problem: It gets undercut by the second by infuriating actions — including by profit-mongering facilities “dumping” thousands of aged, sick, and injured residents on the streets or into flophouses, and by homes that still fail — despite warnings and penalties — to take basic steps to safeguard the vulnerable.

The New York Times — conducting the kind of sleuthing that real federal watchdogs could be taking on — reached out to “more than 80 state-funded nursing-home ombudsmen in 46 states” to detail “involuntary discharges.” As the newspaper explained of these inappropriate evictions by care giving centers, which may number more than 6,400 nationally:

“They are kicking out old and disabled residents — among the people most susceptible to the coronavirus — and shunting them into homeless shelters, rundown motels and other unsafe facilities, according to 22 watchdogs in 16 states, as well as dozens of elder-care lawyers, social workers and former nursing home executives. Many … involuntary discharges, appear to violate federal rules that require nursing homes to place residents in safe locations and to provide them with at least 30 days’ notice before forcing them to leave.”

The venal cruelty isn’t a bug, it’s a feature, as the newspaper explained:

“While the popular conception of nursing homes is of places where elderly people live, much of their business is caring for patients of all ages and income levels who are recovering from surgery or acute illnesses like strokes. Medicare often pays for short-term rehabilitation stints; Medicaid covers longer-term stays for poor people. Nursing homes have long had a financial incentive to evict Medicaid patients in favor of those who pay through private insurance or Medicare, which reimburses nursing homes at a much higher rate than Medicaid. More than 10,000 residents and their families complained to watchdogs about being discharged in 2018, the most recent year for which data are available. The pandemic has intensified the situation. With nursing homes not allowing visitors, there is less outside scrutiny of their practices. Fifteen state-funded ombudsmen said in interviews that some homes appear to be taking advantage of that void to evict vulnerable residents.”

The federal government, specifically the agency that is supposed to oversee long-term care facilities, has added to residents’ nightmares, rather than helping ease them, the New York Times reported.

“Last fall, the Centers for Medicare and Medicaid [Services or CMS] changed the formula for reimbursing nursing homes, making it more profitable to take in sicker patients for a short period of time. Covid-19 patients can bring in at least $600 more a day in Medicare dollars than people with relatively mild health issues, according to nursing home executives and state officials. ‘They could be big money for nursing homes,’ said David Grabowski, a professor of health care policy at Harvard Medical School.”

To get around federal and some state laws designed to protect residents, homes make lives miserable for those who they want to force out. They tell them they cannot be cared for, and the residents, elderly or recovering from serious illness or injury, don’t know their rights and may not have loved ones to intercede for them.

In theory, federal and state regulators can take on facilities over inappropriate involuntary discharges, including raising questions about or even pulling their licensing and certification. The city of Los Angeles slapped hard in recent years at area hospitals, filing lawsuits, winning millions in settlements, and raising a public outcry against hospitals that “dumped” indigent patients in the city’s notorious downtown Skid Row district.

Nursing homes and their ilk already, though, are reacting in mulish fashion to authorities’ rebukes for infection-control problems and other failings that worsened their residents’ coronavirus outbreaks, Maryland officials have found. They just fined homes for violations inspectors discovered in May — well after media reports made long-term care facilities’ coronavirus deaths and infections a national outrage. As the Baltimore Sun reported:

“Maryland health regulators levied a $70,000 fine on Pleasant View Nursing Home in Mount Airy [shown in photo above] for failing to properly isolate newly admitted residents to prevent spread of the coronavirus over a two-week period in May. The fine comes more than two months after Pleasant View became the site of the state’s first known major outbreak of Covid-19 in a nursing home. The virus infected 126 residents and staff there and cause 29 deaths. Inspections of three other nursing homes around the state also revealed issues related to Covid-19 infection prevention … Carroll Lutheran Village in Westminster, Hebrew Home of Greater Washington in Rockville, and Ellicott City Healthcare Center. The documents also show regulators added to a list of deficiencies found at Sagepoint Nursing and Rehabilitation Center in La Plata last month. Sagepoint, where at least 37 residents have died, is the site of the state’s deadliest nursing home outbreak [and its owners already have been fined $380,000].

“The regulators’ findings suggest that problems have persisted in nursing homes even as cases and deaths tied to the facilities have eased. Elder care facilities, also including assisted and independent living centers, have accounted for nearly two-thirds of the Covid-19-related deaths confirmed in Maryland, but the … outbreak numbers and deaths have declined steadily over the past two months.”

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. These institutions already were problematic before the coronavirus pandemic, with, for example, glaring staffing issues — the centers rely on poorly paid, overworked, and ill trained aides, experts have testified to Congress.

The facilities, nationally, have recorded tens of thousands of diagnosed coronavirus infections and more than 50,000 deaths — meaning they account for roughly 40% of the U.S. Covid-19 death toll, according to recent media accountings. Both Maryland (two thirds of all deaths) and Virginia (62%) estimate even higher percentages.

That makes national reports of resident “dumping” and facilities failing to follow infection-prevention regimens even more disconcerting.

Virginia officials have come up with hundreds of millions of dollars to try to assist the facilities, and federal authorities have started to hand out billions of dollars appropriated by Congress to assist health care institutions, including nursing homes.

They still, clearly, will need more resources — and state and federal regulators need to step up their oversight of the institutions, big time, not only for Covid-19 related problems but also to prevent abuses of residents. The facilities’ owners and operators also need to get off their whining and wanting everyone else to solve their serious challenges. We’ve got a lot of work to do.

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