Time for nursing homes to pay for staff tests, Maryland and other states say

covidgovhogan-150x150Imagine in an alternate world in which it is not the poor and ravenous Oliver Twist who implores the world for more porridge, please. Instead, think of the “poor me” cries coming from Bumble the Beadle or Mr. Limbkins, two nefarious guys who exploit kids at the venal workhouse to which Oliver is consigned.

Welcome to the Dickensian drama that continues to envelop nursing homes and other long-term care facilities savaged by the Covid-19 pandemic. It may be a harsh view, but what to make about the persistent bleating by the profit-hungry owners and operators of care homes about the cost of safeguarding and testing the institutions’ vulnerable residents and health workers?

Maryland officials, struggling themselves with “the worst economic crisis since the Great Depression” and confronting the prospect of state agency budget cuts of up to 20%, have told nursing homes they soon must shoulder the costs of weekly coronavirus tests for their staff, the Washington Post reported.

The state ordered that public health measure in mid-June and had offered to help facilities that could not afford the tests pay for them. (By the way, testing for residents of the care homes isn’t at issue between states and facilities because it typically will be covered by Medicare or Medicaid).

It is now time for the facilities to pick up the tab for staff tests, Maryland Gov. Larry Hogan and his administration have warned owners and operators. Not only Maryland but Virginia and the District of Columbia also say this is the right thing for the institutions to start doing, the newspaper said.

Nursing homes getting U.S. billions

That is because the facilities, finally, are starting to receive $5 billion in Covid-19 bailouts from the federal government, money approved months ago by Congress and only now flowing to institutions nationwide from the Centers for Medicare and Medicaid Services (CMS).

That agency also has ordered long-term care facilities it oversees to test health workers weekly if the facilities are in areas where the coronavirus rages. The agency, which is promising $5 billion more to institutions that get their overworked, under paid, and stressed staff to take online infection control training, pledged to provide on-site testing equipment and at least 400 test kits to start to the 15,000 nursing homes nationwide. After making that pledge, however, CMS officials walked back their initial comments and noted that they would for now send the materials to just 600 homes in greatest need.

State officials have said they are not making draconian and impossible demands will work with homes to ensure that the staff testing — critical to safeguarding elderly, sick, and injured residents — keeps going. “We expect the vast majority of facilities to have plans in place, but there’s a range of options depending on the situation,” a spokesman for Maryland Gov.  Larry Hogan (shown above) told the Washington Post.

Nursing homes, the newspaper reported, are expressing alarm at bearing the cost of staff testing, which news reports have estimated runs around $40 for a test for one worker. Industry officials say that small homes will be hard hit by this expense, and that for all owners and operators, coronavirus-related costs have far outpaced taxpayer assistance. Trade group spokesmen have suggested the industry may need $100 billion in federal assistance, as well as legal shields against liability-damage lawsuits from residents and their families.

It’s all a little rich— the evolving scenarios that might be better suited to another 19th century author: Lewis Carroll and we’re all through the looking glass…

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 Covid-19 response to the nursing home nightmare has been shocking and unacceptable — by regulators, political leaders, and lawmakers at the federal, state, and local levels.

It also has been a nightmarish story as plotted out by owners and operators of nursing homes. Too many of them, in search for maximum profits, shrank their medical expertise and health worker staffing to the bones. They whined about and declined to make emergency plans, even as facilities were struck by hurricanes, wildfires, and, yes, the early outbreaks of Covid-19 in this country. They, then, have too often been slow to react to the pandemic, including testing health workers. This has put residents, their own staff, first responders, and communities at heightened risk — more than 40% of all U.S. Covid-19 deaths (and in many states an even higher percentage) have occurred in the facilities.

A call to ‘defund’ nursing homes

The coronavirus could provide the nation with a clarion call and critical moment for big changes in nursing homes and long-term care, argues Charles Sabatino, director of the American Bar Association Commission on Law and Aging. He wrote for NextAvenue, a site reporting on matters of interest to older Americans, that the institutions should be “defunded,” with taxpayer dollars going to them in significantly altered ways as advocates are demanding of law enforcement:

“[In long-term care] multiple recommendations for change have gained attention [prompted by the pandemic]. They include ensuring adequate personal protective equipment in nursing homes; disaster plans that facilitate quarantining; more and better trained staff and heightened monitoring and oversight of care. But let’s be clear: These measures do little more than rearrange the deck chairs in a failing system. The Covid-19 pandemic is a 9/11 moment for nursing home care and a test of our ability to reimagine nursing home care that puts the ‘home’ into nursing homes.”

He also observed that:

“Today’s typical nursing home has never come close to meeting the public’s desire for humane and dignified long-term care. Warehousing large numbers of frail elders in hospital-like buildings with residents in double or triple rooms along with staff turnover as high as 100% unavoidably creates a high risk for resident safety and compromises quality of care. Even before the pandemic, 82% of all nursing homes had infection prevention and control deficiencies cited in one or more years from 2013-2017, according to the U.S. Government Accountability Office. And 48% had such a deficiency in multiple years. Despite the $90 billion paid annually by Medicare and Medicaid to nursing homes, and exacting regulatory requirements addressing quality of care and quality of life for the nation’s 1.3 million nursing home residents, we as a society have failed to keep frail elders safe — let alone in an environment that older adults look forward to residing in.”

He has urged reformers to zero in on “the largest payer[s] for nursing home care, Medicare and Medicaid … Now is the time to change … requirements to gradually limit participation in the [federal funding] program only to facilities that provide the following: small home-like facilities; single rooms and bathrooms; a flattened, more flexible staff hierarchy with cross-trained staff; and culture focused first on residents’ goals, interests and preferences.” Sabatino cites the Green House Project, based in Linthicum Heights, Md., as a possible model for different approaches in long-term care.

Smoke, mirrors, and pokey U.S. testing ‘help’

Lest skeptics roll their eyes at real calls for change in the long-term care industry and federal officials role in it, consider the new mess developing over the promised CMS help with Covid-19 testing for health workers, as reported by a trade journal covering skilled nursing facilities (aka “Skiffs, the centers that typically provide interim care for patients needing medical services less intensive than hospitals but more than nursing homes). Skilled Nursing News, underscoring earlier reports, noted that in the coronavirus hot spot of Texas just 57 of 1,200 nursing homes will get the gear CMS promised.

Further, the publication reported, owners and operators have expressed serious doubts about the watchdog agency’s “point of care” approach, not only because the testing devices will be slow to appear but questions haven’t been answered about testing materials. What happens after the initial supply of 400 kits gets used up? Federal officials haven’t said. Further, and more illuminating: The companies that make the tests say it will be at least six months before they can begin to meet the huge new demand for them.

We’ve got a lot of work to do to not only protect the vulnerable during the pandemic but also to determine a much better way to deal with the long-term care needs of the nation’s burgeoning population of seniors.

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