Senate Democrats tackle nursing home menaces that also made virus so lethal

casey-150x150wyden-1-150x150Senate Democrats, including chairs of two powerful committees, have started to tackle the nightmarish problems that experts blame for allowing the coronavirus pandemic to take a terrible toll on vulnerable residents of nursing homes and other long-term care facilities.

Under a bill introduced by Ron Wyden, an Oregon senator and chair of the Senate Finance Committee (shown above, left), and Bob Casey Jr., a Pennsylvanian and chair of the Aging Committee (above, right), federal officials would both push and assist the facilities to improve health worker staffing, infection control, and regulatory oversight, notably through better inspections, the Associated Press and other news organizations reported.

The AP summarized the highlights of the Wyden-Casey measure, also supported by four other senators, thusly, noting it seeks to:

  • “Raise salaries and benefits for nursing home staff by giving states the option of an increase in federal Medicaid matching funds, available over six years. Low wages in the nursing home industry make for constant turnover, a critical problem even before the pandemic. The bill also starts a process for setting minimum staffing thresholds.
  • Require nursing homes to have an infection prevention and control specialist.
  • Require nursing homes to have a registered nurse available 24 hours a day, instead of the current eight hours.
  • Bolster state inspections of nursing homes and add more low-performing facilities to a “special focus” program that helps them improve quality.
  • Forbid nursing homes from requiring residents and families to agree in advance to arbitration, thereby waiving their rights to go to court over disputes involving care.”

Resistance to needed reforms

Prospects for passage of these proposals — which could run into costs to taxpayers of tens of billions of dollars — is uncertain. Congressional Republicans, who never blinked when the Trump Administration caused the U.S. debt to spike by $7 trillion, now oppose Democratic initiatives reflexively, asserting they cause too much red ink.

The long-term care industry also is continuing to cry, as it did during the most lethal period of the pandemic for elderly, sick, and injured residents of facilities, that their profit margins are too narrow, their costs too great, and that they cannot hire at bargain-basement prices the over worked, under trained, and stressed-out health staff they need.

Industry officials also have targeted at this early stage the Democrats’ efforts to eliminate forced arbitration agreements that the Obama Administration sought to end but were restored by President Trump and his pro-industry officials.

Loved ones and nursing home residents long have assailed the inclusion of these agreements in facility contracts. The agreements typically appear in a mountain of paperwork that the vulnerable and harried must sign under duress, with little or no notice, to get an elderly, sick, or injured individual into care.

Forced arbitration, however, gives facilities a giant legal edge. That’s because it shoves complaints — including potentially grave concerns about abuse, neglect, and systemic failures that can lead to residents’ injury or death — into a private, corporatized system. The judgments in this system favor corporations and institutions over individuals, notably in sessions from which the public may be excluded and never learn about, critics say.

David Grabowski, a Harvard health policy professor, told the AP that the Democrats’ long-term care fixes offer a good start:

“These proposed measures would help improve staffing and increase accountability on the part of nursing homes. Historically, we have often underfunded nursing homes, but some facilities have also not spent public dollars on direct resident care as intended. Under this legislation, more funding will go to nursing homes for staffing, but more will be expected of them as well.”

History lessons on why big changes needed

As the measure potentially advances, particularly if senators actually conduct public hearings on its key aspects, the public may get a brutal reminder of the shambolic pandemic response and poor oversight of long-term care facilities that occurred during the Trump Administration.

Besides reversing the forced arbitration rule, Trump officials in the Centers for Medicare and Medicaid Services (CMS) let nursing homes self-police their staffing levels. They decided to change that practice after reporters took not only the facility claims but matched them against payroll data to show that homes too often fibbed about personnel, especially all-important nurses, that they had on duty — relying, instead, on family members during weekends to care for residents’ needs.

CMS locked down facilities in belated fashion as the pandemic worsened, slashing inspections, too, at a time when critics say basic and better infection control practices would have saved residents lives. The agency, by the way, also eliminated under the Trump Administration the plan to require facilities to have infection control expertise on staff.

The estimates vary and likely are under counted. But officials estimate that the coronavirus killed at least 186,000 residents and staff at nursing homes and other long-term facilities and infected roughly 1.3 million of them. Deaths in the facilities represent roughly a third of the nation’s total. That toll plummeted as the Biden Administration rolled out nationwide vaccination campaigns.

But owners and operators of facilities had declined to require their health workers to get vaccinated, fearing they would lose them to other employers. This has helped to foster a slow rise anew in coronavirus cases, hospitalizations, and deaths in the facilities, which only now are beginning to mandate shots for health workers.

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 became a deadly way for the public to see the many unacceptable ways that nursing home owners and operators pursued profits at the expense of residents and their loved ones. The industry claims it did the best it could under tough, unforeseen circumstance. But even as taxpayers have dumped billions of dollars to shore up the needed facilities, where is the accountability for the debacle that occurred with them?

Critics love to slam malpractice lawyers and the civil justice system. But many nursing home residents and their families, struggling still with the consequences of the pandemic, are thinking hard if their best recourse may be lawsuits to seek justice for wrongs done to them.

As the nation grays rapidly, the issue of long-term care will become an even greater concern, the Democratic senators have said. Nursing home care, just to remind, is expensive, with the median cost of a private, single-room in a facility running $102,200 annually. But homes and other long-term care facilities serve only a slice of those in need.

The Biden Administration and congressional Democrats have proposed hundreds of billions of dollars in new assistance to the elderly, ill, and injured for home care. The figures, advocates say, are too small still. They may represent a growing alternative to pricey and sketchy institutional care.

The Wyden-Casey bill also would try to boost another long-term alternative — smaller nursing homes modeled after the Green House campuses that advocates say offer better, safer, more compassionate, and less costly care than sprawling facilities with hundreds of residents in forbidding, ward-like settings.

We’ll have to see what happens to not only the home care, nursing home, but also a host of other health-related proposals Democrats and Republicans will tussle over in the days ahead. The needs are great, and we have much work to do to vastly improve the lives of the elderly, sick, and injured who need significant, sustained care.

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