U.S. announces crackdown on poor quality and safety in nursing home care

brooks-lasure-150x150The Biden Administration has put the owners and operators of nursing homes and other long-term care facilities on notice that they must make major, desperately needed changes in the way they operate and that they will face much more and tougher oversight by federal regulators.

These reforms — prompted by the coronavirus pandemic and the 200,000 estimated deaths in long-term care facilities of elderly, ailing, and disabled residents — will not occur overnight and already are getting big push back from the industry. Still, as Biden pledged in his State of the Union remarks:

“Tonight, I’m announcing a crackdown on … companies overcharging American businesses and consumers. And as Wall Street firms take over more nursing homes, quality in those homes has gone down and costs have gone up. That ends on my watch. Medicare is going to set higher standards for nursing homes and make sure your loved ones get the care they deserve and expect.”

Even before Biden spoke, the Centers for Medicare and Medicaid Services (CMS) — the federal agency that oversees nursing homes — announced a multi-point plan to improve long-term care facilities’ treatment of the nation’s most vulnerable and to deal in the future with issues like poor staffing and infection control that allowed the coronavirus to savage care homes and their residents.

As the Washington Post reported, the four pillars of the plans include:

  • Setting minimum staffing levels
  • Reducing the use of shared rooms
  • Cracking down on the poorest-performing nursing homes to reduce the risk of residents contracting infectious diseases
  • And increasing regulators’ oversight of facilities, including heightened scrutiny of the role of private equity firms in long-term care, an issue in which the White House pointed to data showing that facilities’ ownership is linked with worse outcomes and higher costs

Nursing homes have cried “poor me” throughout the pandemic, claiming they did the best they could in dealing with a once-in-a-generation disease outbreak as it tore through their facilities. The owners and operators, who have received billions of dollars in taxpayers’ help during the pandemic, have insisted their profit margins are so slim that they could not then and cannot now pay enough to staff their facilities appropriately. The facilities say that the big economic rebound in recent months has left them gasping to retain and hire poorly paid, overworked, and ill-trained front-line health staff, notably the direct-care workers who toil the with heavy-duty, often unpleasant chores of cleaning, feeding, and tending to the elderly, ailing, and injured.

But critics and advocates both agree that tracking finances in the industry, especially as it has become a darling of profit-ravenous private equity investors (nee hedge funds), has become a tough task. Though facilities and chains may report negligible or negative profits, that may be due to corporate financial legerdemain, critics say. Investors may make big money, say, by owning land and buildings for facilities and leasing these back to corporate partners who may run the places and show red ink on their books.

That said, the U.S. health system faces giant challenges with staffing, due to the pandemic plus the soaring demand that is resulting from a fast-graying nation.

The pandemic has so crushed doctors, nurses, aides, and others that experts fear the consequences for well-paying academic medical centers and big hospitals, not to mention nursing homes and long-term care facilities, many of which depend on revenue from taxpayers for caring for Americans covered by Medicare or Medicaid. Long-term care facilities have seen their staffing levels crater for some time now, especially as managers sought cost-savings, “efficiencies,” and could rely on residents’ loved ones to fill unacceptable gaps.

At the same time, the same crowd that howls about immigration, as well as funding child care for working parents, and needed financing for schools, community colleges, and universities may soon be demanding more tax support for long-term care — not only for minimum staffing levels resisted by the industry but also to shift institutions from sprawling, multi-level residences packed to the hilt with people in need (and more vulnerable to fast-spreading illnesses).

While industry officials have assailed the administration proposals as unfair and unneeded, they, too, have endorsed the plan to target persistent poor performers. The administration has said it plans to turn up the heat on weak and bad homes, with increased inspections and much higher fines, some of which may run into the seven figures.

But that, too, will require what the White House has estimated will be at least a $500 million (25%) increase in the CMS budget for inspections. Federal, state, and local authorities also will need to find skilled watchdogs at the front lines and beyond.

Chiquita Brooks-LaSure, the head of CMS (shown above), said the administration wants to hear from all the affected parties to ensure the success of planned reforms, which the independent Kaiser Health News service called “the biggest increase in federal nursing home regulation in nearly four decades.” A timeline has not been set for putting in place prospective changes. In other words, as with all regulatory matters, as the savvy know, the devil is in the details and timing.

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 pandemic laid bare the increasing failures in the long-term care industry. In an ideal world, Congress would have beat the administration to the punch, with multiple House and Senate committees unleashing their expert staff and conducting public hearings on the industry’s shortfalls. Instead, too many residents and loved ones have struggled with the tough choice of potentially pursuing justice and remedies in the civil system for unacceptable wrongs in nursing home care. As the White House noted in its statement about the glaring problems:

“The pandemic has highlighted the tragic impact of substandard conditions at nursing homes, which are home to many of our most at-risk community members. More than 1.4 million people live in over 15,500 Medicare- and Medicaid-certified nursing homes across the nation. In the past two years, more than 200,000 residents and staff in long-term care facilities have died from Covid-19 —nearly a quarter of all Covid-19 deaths in the United States. Despite the tens of billions of federal taxpayer dollars flowing to nursing homes each year, too many continue to provide poor, sub-standard care that leads to avoidable resident harm. In fact, failure to comply with Federal guidelines at nursing homes is widespread. The Government Accountability Office found that, from 2013 to 2017, 82% of all inspected nursing homes had an infection prevention and control deficiency, including a lack of regular handwashing, that was identified through Medicare and Medicaid surveys. Without decisive action now, these unacceptable conditions may get worse.”

Let’s see how fast and effective the administration can be in getting in place its nursing home reforms, especially if the industry-favoring lobbies on Capitol Hill try to jam up the plans. We have much work to ensure that those who are most vulnerable get the safe, accessible, affordable, and quality treatment they need so their stays in long-term care are life affirming and extending and not the unacceptable opposite.

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