Romano Law Nurse Corner COVID-19 #42
Long Term Care Facilities (Nursing Homes)
We hope everyone had a safe and enjoyable holiday season. Finally 2021 is here. So continues the COVID-19 pandemic. The rising numbers of active COVID-19 cases and people dying continues. Over 21 million cases and 350,000 dead Americans. Experts say there will be another huge jump in numbers of sick and dying due to the holidays and traveling.
Vaccinations are on the way albeit more slowly than expected. This is not surprising and makes our own mitigation efforts of social distance and mask wearing continue to be essential.
What about those elderly Americans who are in long term care facilities/nursing homes (used interchangeably). How have they done during this pandemic? We have seen the stories in the news of profound loneliness and sadness; families standing by windows to get a glimpse of their family members. We have heard the stories of massive loss of life inside these facilities. The situation has been far worse than we feared.
Recently, AARP did several lengthy stories about the way the pandemic has uncovered failures in this system. Here at RLNC, we feel this information is important to share with our readers. The historical evolution of long-term care in America serves as a base of knowledge to then more fully understand our current system’s failure during this global pandemic of COVID-19.
We have all seen the nursing home/long term care industry evolve during our lifetimes. Most people who have to deal with this system are not happy that they have to do so. It has never been that great of a system nor are families happy when they enter this system. Families are helpless leaving their loved one in the care of the staff at these places. Unfortunately, many times, they do not get adequate care. Nursing home litigation’s success is evidence of how bad the care has become. That was where we were before COVID-19.
Experts agree that the COVID-19 pandemic has shown a huge failure in the long-term care or nursing home system (used interchangeably) in the United States. We have seen the photos and heard the stories of families unable to talk to anyone to find out about their loved one and providers with no PPE, among other things. There have been facilities where one positive case leads to an almost complete infection rate within days, ultimately killing a large number of these residents, around 100,000 of them (so far) across the United States.
Historical Basis-Outdated Laws
The basis of this failure stems from outdated laws beginning in the 1950s, which led to a more hospital like setting for nursing homes. Then, in the 1960’s, laws made nursing homes essentially reliant on government funding. A third shift was that Medicaid rules forced many people into nursing homes against their desires. On top of that, evolution of medicine and healthcare has led to people living longer and requiring care longer.
Eric Carlson, an attorney at Justice in Aging, testified before Congress this past June regarding the pandemic’s impact on nursing homes. He at first described it by taking a step back and looking at the big picture. He says, “If you are living in a world with potential for pandemic, which we are, it seems like bad practice to put 150 people in their 80s together in tight quarters, two to a room, sleeping 4 feet away from each other. That’s about the worst thing you can do.”
Unfortunately, this is where federal laws governing more than 15,000 nursing homes have led us. The seeds were planted back in 1935 with the law that created Social Security. In order to keep older Americans out of poorhouses, the Social Security Act prohibited payments to residents of public institutions, which launched the rise of private nursing homes.
Then, in 1954, the Hill-Burton Act, which funded hospital construction, was expanded to provide loans and grants to build nursing homes that agreed to provide low cost care. This created the medical model of nursing homes wherein older adults are housed in institutions that resembled hospitals rather than a dorm or apartment. This continues today.
The creation of Medicare and Medicaid in 1965 was even more influential to the long-term care industry. The federal healthcare system for those 65 years and older, Medicare, was set up to pay for doctor and hospital visits as well as short term stays in nursing homes. Medicaid, which covers health care, primarily for the poor, and is funded by matching state and federal funds became the payer for long term care in nursing homes. So, to get financial coverage for long term care in a nursing home you have to qualify for Medicaid. This is a tough system for families to wade through at one of the hardest times in their lives.
Bruce Vladek, administrator of the federal agency that directed Medicaid and Medicare in the 1990’s says that prior to Medicare and Medicaid, families struggled to pay for nursing home care, however it was inexpensive and most people did not live long enough to require it.
Life expectancy grew drastically during the last half of the 20th century and so did the cost of medical care and nursing home care. This created the financial hardship with healthcare that many Americans face today.
Under Medicaid law, states are required to pay for nursing home care for anyone who qualifies. States are not required to pay for the home and community-based services that would help seniors stay in their homes. This makes no sense at all when thinking what is best for the actual person. If a state wishes to provide these services, it can apply for a waiver from the federal government. Even if approved, many waivers have enrollment caps. Further, in some cases, waiting lists for those wanting Medicaid-covered home care are so long that people die waiting. Bureaucracy in the system is the norm.
Patricia McGinnis, executive director of California Advocates for Nursing Home Reform says that making nursing homes a de facto choice for older Americans in need of care set the stage for the ravages of the pandemic.
While the historical evolution of nursing homes set the stage, most agree that the single greatest error in America’s response to the pandemic in nursing homes was the failure to provide early and vast access to testing for residents and staff. Absent testing, nursing home staff concentrated on isolating symptomatic patients while asymptomatic patients and staff continued to spread the virus throughout the facility. Many facilities had no PPE or proper supplies to provide safety for their staff and patients.
Nursing homes were just chasing their tails according to Dr. Morgan Katz, an infectious disease expert from Johns Hopkins University School of Medicine, specializing in long-term care facilities.
Even with this system, experts believe that lives could still have been saved if government officials had prioritized nursing homes in the early stages of the pandemic. This was a failure at both the state and federal level.
In May, 3 months after the mid-March shut down, Deborah Birx, MD senior federal health official who was very visible at the time, asked governors to find a way to test all nursing home residents and workers in their states. Really, did they need to hear this 3 months in? This was not a mandate nor could it be done. Many states scrambled to get tests that were in short supply but came up empty and spread continued.
It was not until September, 9 months from the beginning of the pandemic shut down, that CMS required nursing homes to test residents and staff, however by then, much of the damage had already been done. At that point, efforts to stop the spread were doomed according to Dr. Katz. These months with limited testing allowed the virus to spread undetected and ravage these facilities.
Health care bureaucracy was also a big part of the problem. It was not clear who was in charge of the facilities and the response to the pandemic. Families would call to check on their loved ones and could not find out who was in charge of the situation. There was no one to complain to or get information from and they were not allowed into facilities. Shut off completely from their loved ones, families were scared and angry. It was confusing at every level.
The federal government transferred the obligation to help to the states and the states transferred the obligation to nursing home facilities. In reality- everyone including agencies, owners and governments, pointed to the other to take charge and ultimately no one did, leaving no accountability.
Cristina Crawford from the American Health Care Association (AHCA) says the failure of public health services at all levels to prioritize nursing homes for both testing and personal protective equipment left the industry unequipped to stop the spread of the virus. It was difficult to get anyone to listen for months, leaving devastating consequences for our residents and staff.
In addition to the lack of accountability, CMS suspended routine state inspection of nursing homes by restricting ombudsmen from making visits. It is an ombudsmen’s job to advocate for patients. While it makes sense to keep outsiders from bringing in the virus, the lack of scrutiny over the facilities causes a big concern. These facilities already had issues with quality of care and taking away oversight does not help to improve that.
The federal government also provided 21 billion in relief, however the use of the majority of those funds was given with no accountability to how it was spent. Obviously, funds with no oversight can lead to problems.
Data has shown that there is a linkage between nursing home quality and number of COVID-19 cases. Researchers have found that facilities that received lower quality ratings from regulators before the pandemic were more likely to suffer outbreaks. Other reports have shown that for profit facilities had more COVID-19 cases and deaths than nonprofit facilities. This is not surprising.
A study published in Journal of American Medicine in August found across 8 states that facilities with higher levels of nursing staff had fewer cases than those with less staff. This also makes sense. Another study showed that shared staffing between different facilities had higher rates of COVID-19. Limiting the staff to one facility would help reduce the spread however sometimes that is not possible given the way the system is set up.
Before this pandemic, we knew the nursing home/long-term care system in this country was not the best. Like so many other things in our lives, we must wonder how the nursing home system in this country will recover from the devastation that is COVID-19.
We continue to do what we feel is the right and responsible thing in caring for other human beings. We wear our masks and socially distance. We will get a vaccine as soon as it is available to us. Stay steadfast in these efforts and stay safe.
We are Susan Ramsey and Amie Goldberg, both practicing attorneys and nurses here at the Romano Law Group. Here is a little more about each of us:
Susan Ramsey is both an attorney and an RN. Ms. Ramsey’s professional experience began as a Registered Nurse in the Intensive Care Unit at Yale New Haven Hospital. While pursuing her Bachelor’s Degree, she was a counselor with the New Haven Rape Crisis Program. During her time with the Program, Ms. Ramsey counseled sexual assault survivors and performed seminars for local police departments, universities, and high schools. During her time working as a registered nurse, Ms. Ramsey decided to attend law school. Ms. Ramsey graduated from CUNY Law School, and has practiced law in several different State and Federal Courts. She is a Florida Heath Care Risk Manager and a member of the Palm Beach County Sober Home Task Force. Ms. Ramsey actively litigates cases involving catastrophic injuries and wrongful death on behalf of survivors, cases include injuries suffered by victims of professional negligence, product liability and medical negligence.
Amie Goldberg is both an attorney and a certified APRN. After completing a Bachelor of Arts Degree at Whittier College, Ms. Goldberg attended nursing school at Emory University. Ms. Goldberg’s professional experience started as a Registered Nurse at Egleston Children’s Hospital taking care of children with congenital heart disease. After a few years, she continued working in all areas of the hospital while attending Kennesaw State University on weekends in order to get her Master’s Degree in Nursing with a specialty of Primary Care Nurse Practitioner/Family Nurse Practitioner. During her time as an APRN, Ms. Goldberg decided to attend law school at St. Thomas University in Miami, Florida. Since graduating, she has mainly practiced in the areas of personal injury and worker’s compensation, fighting for the rights of injured people. Since joining the Romano Law Group, Ms. Goldberg has been the Director of the Opioid Litigation Project. Ms. Goldberg also practices in the area of medical malpractice and nursing home negligence, bringing an inside perspective and knowledge to help get justice for our clients.