Why does lethal bungling persist in fixing the Covid-19 nursing-home mess?

coronaflawnursinghome-300x237Hundreds of thousands of institutionalized Americans have been infected with the novel coronavirus. Tens of thousands of them are dead. Yet a lethal bungling persists in the response to Covid-19’s savaging of residents of nursing homes and other long-term care facilities. Why?

Their owners and operators agree with medical scientists that significantly more testing is required, urgently, so the sick can be diagnosed, treated, and isolated.

But insurers and owners are bickering over who should pay for Covid-19 tests, notably for institutions’ staffers — many of whom are themselves getting sick and dying. As the New York Times reported:

“Regular testing of nursing home staff — who come and go each day from their workplaces, potentially introducing the virus to the facilities and spreading it to residents — is seen as one of the most important ways to contain outbreaks. The first significant outbreak in the United States was in a nursing home in the Seattle area, and the virus has killed residents in many facilities in New York and New Jersey. Like so many aspects of the U.S. response to the pandemic, the effort has been stymied by a lack of federal coordination and a patchwork of state policies.

“In California, nursing homes have been given conflicting instructions from local and state governments. Some states, like Ohio, are sending in the National Guard to help administer tests. Others, like New Jersey, require testing but have pushed the logistics and costs onto the nursing homes. Still other states, like Alabama, have not issued any requirements for testing. Even at the federal level, different agencies are offering conflicting advice. [The federal oversight agency] wants nursing homes to test workers weekly, but has not made it a requirement. The Centers for Disease Control and Prevention, however, has said that facilities can adjust how often they test workers based on the local prevalence of coronavirus.”

(In case you’ve missed it, health insurers are sitting mighty flush for now, despite the pandemic. That’s because so many Americans aren’t seeking their usual medical services, and many providers are struggling because they’ve seen their work evaporate.)

Huge alarms have rung out for weeks now that personal protective equipment or PPE for the staff at the facilities is beyond dire need.

But the owners and operators — just as other health care workers have complained — say they cannot secure the needed PPE.

And the Trump Administration, despite its empty promises for assistance through the Federal Emergency Management Agency, FEMA, isn’t helping. Instead, federal officials have been slow to deliver gear that is shabby and unusable.

As the nonpartisan Kaiser Health News Service reported:

“Despite President Donald Trump’s pledge April 30 to ‘deploy every resource and power that we have’ to protect older Americans, a fifth of the nation’s nursing homes — 3,213 out of more than 15,000 — reported during the last two weeks of May that they had less than a week’s supply of masks, gowns, gloves, eye protectors or hand sanitizer, according to federal records. Of those, 946 reported they had at least one confirmed Covid infection since the pandemic began.

‘The federal government’s failure to nationalize the supply chain and take control of it contributed to the deaths in nursing homes, said Scott LaRue, president and CEO of ArchCare, the health care system of the Roman Catholic Archdiocese of New York, which operates five nursing homes. Widespread equipment shortages continue in some places as the virus rages lethally through nursing homes and other long-term care facilities. More than 217,000 short-term patients and long-term residents in nursing homes have contracted Covid-19, and 43,000 have died.”

Here’s what the Wall Street Journal reported:

“Nursing-home staffers have said in lawsuits and complaints to the federal Occupational Safety and Health Administration that they were often working with inadequate protection. The Evangelical Lutheran Good Samaritan Society, which operates 147 nursing homes, said roughly half of its facilities have received federal shipments. But the nonprofit, which is part of Sanford Health, said it wasn’t planning to use the gowns, masks or most of the gloves. ‘If we were out of everything else, we would go to this stuff,’ said Randy Bury, chief executive of the nonprofit. Most of the masks were too small for adults, and the ear loops were too loose, while many gloves were also too small to fit staffers, he said.”

KHN reported of the disappointing FEMA deliveries:

“Some contain flimsy surgical masks or cloth face coverings that are explicitly not intended for medical use. Others are missing items or have far less than the full week’s worth of protective equipment the government promised to send. Instead of proper medical gowns, many packages hold large blue plastic ponchos ‘It’s like putting a trash bag on,’ said Pamela Black, the administrator of Enterprise Estates Nursing Center in Enterprise, Kansas. ‘There’s no real place for your hands to come out.’”

With the Centers for Medicare and Medicaid Services (CMS) having gone mostly MIA as the chief overseer of nursing homes and other long-term care facilities, even big and normally well-resourced states like California have struggled to take on the heavy lift of trying to protect the old, sick, and injured from infection and deaths due to Covid-19.

As the states’ efforts have lagged, residents have suffered terrible consequences, the Los Angeles Times reported:

“[LA] County health officials, recognizing the threat posed by health care workers who frequently work at more than one home and may be infected but asymptomatic, vowed in late April to test residents and staff at all of the county’s nearly 400 skilled nursing facilities. A month later, The Times found, they had managed to finish the job at only about a third of them. As of [June 7], there were still 71 that had not tested everyone. State health officials have also promised to test everyone at nursing homes, but implementation remains scattershot, with no clear rules about how the testing plan will work or who will pay.

“At the end of May, Norwalk Skilled Nursing, a single-story building occupying about a city block on Imperial Highway, was among the homes county health officials had not gotten around to testing yet. More than half a dozen employees, who spoke with Times reporters on the condition of anonymity for fear of retaliation, said the facility has suffered from a severe shortage of [PPE] and has allowed nurse aides to move back and forth between the ‘dirty’ isolation unit meant to contain infected residents and the ‘clean’ unit meant for those who weren’t sick yet. The home also faced the threat of a mass walkout by a scared, exhausted staff unless they start getting hazard pay, the employees said. As the number of infected residents climbed last month, several nursing assistants said they pleaded with the administration to start testing staff but that their bosses instead waited for the health department to provide test kits, which cost an estimated $150 each … ‘It’s chaos,’ said a certified nursing assistant. ‘The patients are getting infected, the employees are getting infected.’”

Covid-19’s also has taken a terrible toll on another vulnerable and institutionalized group — “more than 275,000 people with conditions such as Down syndrome, cerebral palsy and autism,” the Associated Press reported, adding that “Many residents have severe underlying medical issues that leave them vulnerable to the coronavirus.”

The news service said this:

“At least 5,800 residents in such facilities nationwide have already contracted Covid-19, and more than 680 have died, The Associated Press found in a survey of every state. The true number is almost certainly much higher because about a dozen states did not respond or disclose comprehensive information, including two of the biggest, California and Texas. Many of these places have been at risk for infectious diseases for years, AP found.

“Perhaps the best-known government-funded homes for the disabled are called Intermediate Care Facilities, which range from large state-run institutions to homes for a handful of people. Before the coronavirus hit, regulators concluded that about 40% of these facilities — at least 2,300 — had failed to meet safety standards for preventing and controlling the spread of infections and communicable diseases, according to inspection reports obtained by AP. The failures, from 2013 to early 2019, ranged from not taking precautionary steps to limit the spread of infections to unsanitary conditions and missed signs that illnesses were passing between residents and employees. No such data exists for thousands of other group homes for the disabled because they are less regulated. But AP found those homes have also been hit hard by the virus.”

This is not good. 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.

It is unacceptable that poor infection control and other problems at nursing homes and other long-term care facilities were allowed to fester so that residents would be subject to calamitous results in the coronavirus pandemic. Yes, this outbreak has been far more disastrous than many experts might have predicted.

But the problems in nursing homes and other similar facilities — which too often charge residents and their loved ones far too much (an average of $100,000 annually for a single room) while delivering far too little in services and safeguards — have grown for some time now. Their owners and operators have sought to maximize profits while cutting staff and relying far too much on poorly paid, ill-trained, and, to their credit, often sincere and hard-working care givers.

The avaricious need to be held accountable for negligent, abusive, and even criminal conditions that they have fostered and that have contributed to Covid-19’s terrible toll on nursing homes and their ilk.

Instead, as the Washington Post reported, the facilities’ owners and operators are seeking — and in notable cases have received — undeserved legal protections. As the newspaper reported:

“The push to protect the industry has played out in state capitols across the country. Industry associations have appealed to the governors of Florida, Maine, Pennsylvania, and Tennessee, among others … In New York, a massive state budget bill in early April included an immunity provision covering homes and workers … A spokesperson for [the governor] said that the provision does not excuse gross negligence and that it was passed when officials were worried about running out of critical care beds … Since the pandemic began, about 20 states have approved immunity orders, most shielding both companies and employees. Some states, including California and Florida, have resisted calls for action. Others, including Maryland, already had some form of immunity in place during emergencies. Industry groups also contacted national lawmakers …”

Taxpayers should make clear to lawmakers that the owners and operators of nursing homes and other long-term care facilities should not be given a “get out of jail for free” card, especially if, at the same time, they plead for billions of dollars in public aid to protect fragile residents — as they should have from the start.

The owners and operators continued, fumbling efforts to safeguard the vulnerable further speaks to why the public should find their record unacceptable if not reprehensible. They shrugged and claimed they did the best they could in uncertain, bad circumstance. They have had weeks now to deal with a miserable situation, and they — along with politicians and regulators — cannot keep saying “We’re trying, but somebody else needs to help.” We have much work to do to ensure that immunity and impunity do not become a sickening and lethal standard for how we let institutions treat the old, sick, disabled, and injured.

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