Nursing homes reckon with big suits and prospect of tough staffing rules

agedhands-150x150The Biden Administration is encountering stiff industry opposition but is forging ahead with plans to announce in coming months major regulatory reforms that advocates hope finally will force nursing homes to meet minimum staffing guidelines to care for some of the nation’s most vulnerable.

The tragic devastation of long-term care facilities and their residents by the coronavirus pandemic demonstrated the dire need for federal regulators to set baseline standards for nursing and other front-line resident care, critics say.

Their arguments have been bolstered by lawsuits against nursing homes and their subsequent disclosure of harms done to seniors, the sick, and injured — those who are so debilitated that they require substantial living assistance but too often do not get it due to substandard staffing and profit-driven decision-making by facilities’ owners and operators.

The Associated Press, for example, reported that a federal judge has approved a roughly $58-million settlement in a class-action lawsuit filed against a Massachusetts long-term care facility in which dozens of veterans contracted Covid-19 and died:

“The coronavirus outbreak at the Soldiers’ Home in Holyoke in the spring of 2020 was one of the deadliest outbreaks at a long-term care facility in the U.S. Attorneys for the plaintiffs said 84 residents died and roughly the same number were sickened. A total of 164 plaintiffs include veterans who tested positive for the disease and survived as well as the families of those who died. Several of the veterans who survived Covid-19 have died of other causes since the lawsuit was filed.”

A state-ordered investigation of the facility found that its superintendent, or official in charge, lacked qualifications to run a long-term care center and made “utterly baffling” decisions that led to residents’ deaths, including ordering the consolidation of locked and suddenly overcrowded dementia units, one of which was free of coronavirus infections and the other with residents already sick with the disease.

The Washington Post reported that jurors in northern California had awarded $13.5 million in civil damages to plaintiffs after their lawyers argued Parkview Healthcare Center in Hayward, Calif., and its affiliated management company, Mariner Health Central. They were accused of skimping on nursing staff to boost profits. State and county authorities are seeking civil penalties in the case, in which one of the family members involved told the newspaper her father died after suffering from wretched care.

She said they noticed he repeatedly suffered from bug bites on his back, facial injuries from a fall, and instances in which he was soaked in urine instead of being ready for trips to church. The resident complained of pain and great discomfort with a dressed leg injury. When family members peeled back the coverings, they found the wound was not only infected, but that gangrene had spread so much that surgeons were forced to amputate their father’s leg above the knee before he later died.

These horrors and the terrible pandemic toll compelled the administration to set in motion the regulatory process to impose minimum staffing standards, the Washington Post reported:

“Health and Human Services Secretary Xavier Becerra said in an interview that the extraordinary toll of coronavirus deaths in nursing homes served as a catalyst for the Biden administration to take action. Nearly 160,000 nursing home residents have died of Covid-19 in the coronavirus pandemic, a catastrophic impact on frail elderly people who were especially vulnerable to infection and living in closely packed quarters. About 2,700 staff members also have died in the pandemic. ‘The dirty little secret was there,’ Becerra said. ‘With Covid, you couldn’t hide it.’ Many experts and advocates have been demanding minimum staffing in U.S. nursing homes for decades. ‘If we can finally get this accomplished, it’s not going to solve all the problems, but it’s going to make a big difference,” said Charlene Harrington, a professor emeritus at the University of California at San Francisco and a researcher on the impact of staff size and training on nursing home quality.”

In 2001, a landmark study for the Centers for Medicare and Medicaid Services (CMS) produced a compelling, evidence-based case for homes to provide “at least 4.1 hours of nursing care to each resident every day to avoid harm such as bed sores and falls — about the equivalent of one nurse for every seven residents on day and evening shifts.” The industry and its allies, however, slammed that recommendation and made it ever since politically impossible to impose.

Federal watchdogs have found that only a slice of facilities meet the minimum standard much of the time. And the industry resistance to the requirement has only increased — significantly — as the U.S. health care system struggles throughout to recruit and retain staff, especially lower paid, lesser educated and trained front-line caregivers who must work long, hard hours, the newspaper reported:

“The industry contends minimum staff mandates of 4.1 hours per resident per day would cost up to $10 billion per year and are unworkable because of a shortage of workers willing to do the job. It says government has never provided enough funding, especially through Medicaid programs, to support that level of staffing, which it says could require 187,000 new workers. ‘It’s one thing to announce we are going to get all these workers in all these buildings, but are we as a society willing to pay for it? So far the answer has been no,’ said Mark Parkinson, president, and chief executive of the American Health Care Association, which represents the nursing home industry …

“Critics counter that the nursing home industry has abundant profit available to boost staffing and make the jobs more attractive. But the industry’s business model, with multiple related corporate entities often receiving payments from a single nursing home, makes it difficult to follow the money. Shortchanging the direct-care workforce — primarily made up of women and people of color — with low pay, poor training, and insufficient numbers is a tempting way for nursing homes to boost the bottom line, said Kelly Bagby, vice president at AARP Foundation Litigation and a former senior counsel in the Health and Human Services inspector general’s office.”

Becerra and others in the administration told the Washington Post — whose reporting on the issue includes more awful details about residents’ abuse in care — that the nursing home standards will be made public in the new year. Their exact requirements are still under formulation and the fierce industry opposition concerns safety advocates, who ask how the nation could possibly overlook the pandemic’s horrors and fail yet again to compel long-term care facilities to perform better.

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 neglect and abuse in nursing homes and other long-term care facilities.

The pandemic laid bare the increasing failures in the long-term care industry, which has cried “poor me” and sought large and larger taxpayer support. This is occurring even as big, private investors gobble up facilities, hike prices, reduce services, and make their operations, management, and ownership ever-more opaque to outsiders.

Those who are appalled by aspects of long-term care have struggled for some time now with the tough choice of potentially pursuing justice and remedies in the civil system for long-standing, well-known, and unacceptable wrongs in nursing home care. Some of these actions are bringing justice to the harmed.

But for many seeking legal redress also have found their efforts challenged — by documents signed under duress and during the admission process. Owners and operators of facilities too often get residents and loved ones to sign arbitration agreements. This means their complaints will be forced into a legal system in which in many ways the decks are stacked against them. Their cases will be heard by hired guns, arbitrators who often themselves work for big legal enterprises that have frequent dealings with nursing home operators, including whether they get retained in the first place, and meaning they can benefit by maintaining favorable relationships with them.

Arbitrations do not occur in open, public court rooms but often in secured office buildings or closed corporate headquarters, sometimes those of the disputing parties. They do not always follow rigorous standards that courts must on evidence. Arbitrators’ decisions are binding and can require heavy legal lifting to contest and reverse.

This is not good or right. As our nation increasingly grays and more of us face not only a possibility but a likelihood of institutional care, we have much work to do to vastly improve the safety, quality, access, affordability, efficiency, and excellence of nursing homes and other long-term care facilities.

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