Human fault or act of nature in coronavirus’s deadly assault on nursing homes?

chartGAOnursinghomeinfection-300x300Is the coronavirus’s staggering toll on patients in nursing homes something to be written off as a force of nature for which humans bear little fault? Or are there lessons to be learned about shortcomings that could help preserve lives the next time?

News media reports keep unearthing institutional misery and a blindness to the suffering of the aged, chronically ill, and seriously injured. Bad luck, shrug facility owners and operators, seemingly joined in by regulators and some politicians. Couldn’t be helped. Did the best we could.

In fact, investigations — by journalists and watchdogs — have shown the toll taken by nursing homes’ sloppy disregard for infection control, press for profits, and unacceptable paralysis as situations headed south.

Residents who are poor, black, and brown have borne a disproportionate share of the harms, according to reporting focused on spots like Baltimore, New York, and Los Angeles.

From New York — an epicenter of the pandemic — revelations grow about the ghastly blunder that led overwhelmed hospitals and harried officials to heighten risks for vulnerable residents of nursing homes and long-term care facilities by exposing them to supposedly recovering Covid-19 patients shuttled into their institutions by the thousands.

Before the current crisis, more than 1.5 million Americans had become so debilitated that they required long-term support in nursing homes, assisted care, skilled nursing facilities, and other institutions. As the New York Times reported of this population:

“While just 11% of the country’s cases have occurred in long-term care facilities, deaths related to Covid-19 in these facilities account for more than a third of the country’s pandemic fatalities …The share of deaths tied to long-term care facilities for older adults is even more stark at the state level. In 14 states, the number of residents and workers who have died accounts for more than half of all deaths from the virus.”

The federal agency with oversight of these institutions is the Centers for Medicare and Medicaid Services, or CMS. Its response to Covid-19’s continued savaging of nursing home residents has been yet another failed part of the shambolic Trump Administration pandemic responses that continue, as Atlantic writer Ed Yong described it, to be so “bereft of operational specifics that they’re like a cake recipe that simply reads, Make cake.”

Consider what the U.S. Government Accountability Office, one of the federal government’s top watchdogs, reported about nursing homes’ procedures for infection control before the pandemic (in 2013-17, those years included), and CMS oversight of long-term care facilities. GAO investigators found that infection control problems were rampant affecting 82% of facilities nationwide:

“Our analysis of CMS data shows that infection prevention and control deficiencies were the most common type of deficiency cited in surveyed nursing homes, with most nursing homes having an infection prevention and control deficiency cited in one or more years from 2013 through 2017 (13,299 nursing homes, or 82% of all surveyed homes). Infection prevention and control deficiencies cited by surveyors can include situations where nursing home staff did not regularly use proper hand hygiene or failed to implement preventive measures during an infectious disease outbreak, such as isolating sick residents and using masks and other personal protective equipment to control the spread of infection. 14 Many of these practices can be critical to preventing the spread of infectious diseases, including Covid-19 …15 About half—6,427 of 13,299 (48 percent)—of the nursing homes with an infection prevention and control deficiency cited in one or more years of the period we reviewed had this type of deficiency cited in multiple consecutive years from 2013 through 2017. This is an indicator of persistent problems.”

But what was the federal response to this glaring concern? Not much, the GAO reported:

“We also found that in each year from 2013 through 2017, nearly all infection prevention and control deficiencies (about 99% in each year) were classified by surveyors as not severe, meaning the surveyor determined that residents were not harmed. Our review of CMS data shows that implemented enforcement actions for these deficiencies were typically rare: from 2013 through 2017, CMS implemented enforcement actions for 1% of these infection prevention and control deficiencies classified as not severe. Furthermore, 67% of these infection prevention and control deficiencies classified as not severe did not have any enforcement actions imposed or implemented, and 31% had enforcement actions imposed but not implemented —meaning the nursing home likely had an opportunity to correct the deficiency before an enforcement action was imposed.”

The Washington Post found similar lapses and disregard for the many seemingly small but critical practices that could have safeguarded nursing home residents, notably those in facilities run by Life Care. It is a chain that has become the focus of state regulators, especially because an early calamity at a Life Care facility in Washington might have alerted nursing home operators and regulators of the coronavirus’ potential to devastate care centers:

“At other Life Care nursing homes [besides Kirkland, Wash.], inspectors have … discovered staff members who did not wash their hands or enforce social distancing guidelines, according to the inspection reports. At one home in Denver … staffers left open the door of an isolation room, allowing a patient withCcovid-19 to slip into the hallway without a face mask and sit next to a room with two healthy residents. At another home in Colorado, a nursing assistant hovered 12 inches from the face of a coughing patient who was not wearing a mask. In Kansas, inspectors found a nursing home’s infection control log failed to include two patients with fevers — one was sent to the hospital with a 103-degree fever and died. In a home in Michigan, a nursing assistant rolled a blood pressure machine out of an isolation room and into a non-Covid-19 room without sanitizing the equipment. At another Michigan home, inspectors found residents in a hallway who were not wearing masks and an aide who delivered meals without wearing gloves or a gown, even though the residents were at risk of respiratory infection. ‘These deficient practices resulted in the high likelihood of spreading coronavirus and harmful pathogens,’ the inspector wrote.”

The New York Times, Baltimore Sun, KPCC (public) radio in Los Angeles, and the Southern Illinoisan have dug into coronavirus deaths and infections in nursing homes and other long-term care facilities, reaffirming the horrific toll inflicted on black and brown residents and reporting:

The coronavirus pandemic has devastated the nation’s nursing homes, sickening staff members, ravaging residents and contributing to … the nation’s Covid-19 death toll. The impact has been felt in cities and suburbs, in large facilities and small, in poorly rated homes and in those with stellar marks. But Covid-19 has been particularly virulent toward African-Americans and Latinos: Nursing homes where those groups make up a significant portion of the residents — no matter their location, no matter their size, no matter their government rating — have been twice as likely to get hit by the coronavirus as those where the population is overwhelmingly white.

“More than 60% of nursing homes where at least a quarter of the residents are black or Latino have reported at least one coronavirus case, a New York Times analysis shows. That is double the rate of homes where black and Latino people make up less than 5% of the population. And in nursing homes, a single case often leads to a handful of cases, and then a full-fledged outbreak. The nation’s nursing homes, like many of its schools, churches, and neighborhoods, are largely segregated. And those that serve predominantly black and Latino residents tend to receive fewer stars on government ratings. Those facilities also tend to house more residents and to be located in urban areas, which are risk factors in the pandemic.”

In New York, the Associated Press found, a public health policy and practice worsened the plight of residents in nursing homes and other similar institutions — overwhelmed hospitals’ being allowed to send purportedly recovering Covid-19 patients to long-term care facilities. State health officials barred them from refusing the patients, under a policy since reversed by Gov. Andrew Cuomo. But at least 4,500 coronavirus patients were relocated as the pandemic savaged the city, spreading the disease beyond hospitals, critics say. The AP reported this reaction from a New Yorker:

“’It was the single dumbest decision anyone could make if they wanted to kill people,’ Daniel Arbeeny said of the directive, which prompted him to pull his 88-year-old father out of a Brooklyn nursing home where more than 50 people have died. His father later died of Covid-19 at home. ‘This isn’t rocket science,’ Arbeeny said. ‘We knew the most vulnerable — the elderly and [health] compromised — are in nursing homes and rehab centers.’”

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 family members by neglect and abuse at nursing homes. Covid-19’s lethal assault on nursing homes has not ended, and states are stepping in to try to deal with a nightmare in which they share responsibility for their past neglect.

The federal government inaction is unacceptable and downright shameful. CMS has issued guidelines about allowing nursing homes and other similar facilities to resume more normal operations, including allowing distraught families increased visits to terrified, lonely, and distraught residents. The agency also has tut-tutted, though, that the return to greater normality must be done with extreme caution, especially after ramped up testing and more assurances that facility staff follow infection control practices, including wearing personal protective equipment.

Right, make cake, CMS has said. CMS soon may roll out its long-promised data on infections and deaths — crucial disclosures that it did not insist on until recently. The agency hasn’t said when it will resume inspections of facilities, which it canceled as the pandemic began to rage. The feds may lecture states about what’s needed, but from the White House down, where’s the long promised and discussed big push to improve testing and get health care workers PPE? Frontline folks it is M.I.A.

In the meantime, besides the certainty of more suffering from residents, the only sure bet as a Covid-19 response from the owners and operators of nursing homes and similar facilities? More taxpayer money and farcical bleating for legal protections from lawsuits from those seeking justice in the civil system for major harms.

Do we taxpayers feel our purses and wallets getting lifted? Likely. The better angels among us may look at the giant mess we must clean up in the days ahead and envision vastly improved nursing homes and similar facilities. We may look back and shudder at the grim ways we now warehouse the old, ill, and injured as we do when seeing black-and-white photos of hospitals of yore — giant, open wards with patients of all kinds stacked, cheek by jowl atop each other. There are common sense, better options, and, with America rapidly graying, we need to hold accountable those who, with abuse, negligence, and criminality, have sickened and killed people now in nursing homes and other long-term care facilities, while also rapidly building to a better future.

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