By Nicolas Terry, LLM and Tara Sklar, JD, MPH
Introduction
This post is part I of a two-part series on COVID-19 and care facilities. In this first installment we assess the centrality of care facilities to the COVID-19 pandemic and outline the infection risks for residents and workers. In the second installment we will explore how improved regulation and enforcement, combined with liability rules, provide the best path forward to improve an industry that, despite its deficiencies, claims it deserves exceptional immunity.
Care Facilities, their Residents, and the Pandemic
Long-term care facilities for seniors include certified nursing facilities (aka nursing homes), residential care communities (such as assisted living), congregate living (or care) facilities, memory care units, and continuing care retirement communities. Approximately 1.3 million persons are residents of almost 16,000 nursing homes and 800,000 reside in 29,000 residential care communities.
As the COVID-19 pandemic developed, this environment presented a perfect storm.
Like other congregate facilities, such as cruise ships, prisons and homeless shelters, care facilities group large numbers of persons in community settings that include communal eating and other services that increase transmission and that are antithetical to or challenged by social distancing.
The CDC reports hospitalization rates for those 65+ are considerably higher than all other age groups combined, and account for 80% of deaths. Elevated hospitalizations and death rates are associated with vulnerable populations, such as those with chronic conditions, including respiratory ailments, common in nursing home residents.
And 69.3 per cent of nursing homes and 81 per cent of residential care communities in the U.S. are owned by for-profit entities, which have a poor reputation for compliance with quality and safety regulations.
The first COVID-19 case in the U.S. was thought to be a resident of the Life Care Center of Kirkland, Washington (Kirkland) who was admitted to hospital on February 19, 2020. In retrospect, it appears the virus already had been circulating in the facility for several weeks. As Kirkland’s cases and death toll among residents and staff increased, the cluster pathology was replicated in care facilities across the nation. For example, 117 residents and 42 staff at the 224-bed Courtyard Nursing Care Center near Boston have tested positive and 54 residents have died.
COVID-19 has swept through care facilities nationwide, yet the total number of cases and deaths is unclear. In large part that is because of inadequate or incomplete data collection. Also, the total numbers are likely to be revised upwards as more data are collected by nursing home regulators and as fatalities not originally traced to COVID-19 are added. We already know that in some states, nursing homes account for approximately 25% of COVID-19 cases and a far larger percentage of deaths (68% in Delaware, 63% in Massachusetts, 77% in Pennsylvania and Rhode Island). Currently, nursing homes account for over 30,000 COVID-19 deaths in the U.S., with only about two-thirds of states reporting, and highly variable data from other care facilities.
Safety Concerns for Residents and Workers
Kirkland (which is part of a chain with 256 locations across 28 states) has been tied to over 129 coronavirus infections and 40 deaths. While fines are accruing of over $611,000 and the facility is facing a potential loss of Medicare and Medicaid funding, some might argue that this “systematic failure” is so severe that these penalties are derisory and the length of time Centers for Medicare and Medicaid (CMS) has given to “correct” the errors (until mid-September) is far too lenient.
Essentially, Kirkland failed to: report the outbreak for two weeks (and stop the intake of new patients during this time), follow basic protocols required to prevent infection, and establish a clear medical plan of action. Recent inspections of other facilities in the Life Care chain found continued breakdowns in infection control and prevention at nine nursing homes. Related concerns at care facilities across the country are frequent news stories and highlight longstanding industry problems in safety design, staffing and supplies shortages, and infection control.
Nursing homes have racked up standards violations for years with declines in quality of care, resident health, and working conditions. The workforce was thinly stretched pre-pandemic; staffing levels often fell far short of recommendations. The largest nursing home chains were noted as having the tightest staffing levels to boost overall profits.
Infections are also a reoccurring problem, and in 2019 were responsible for killing 380,000 residents at skilled nursing facilities alone. As aforementioned, transmission of COVID-19 is difficult for care facilities to prevent, due to the communal dimensions of their environments. In addition, the personal care needs of an older population require some level of physical contact – 64% need help with bathing, 57% with walking, 48% with dressing, 40% with toileting, and 42% have dementia – making handwashing and other safety measures difficult to implement.
In a COVID-19 world, the nature of providing long-term care carries substantial risk to residents and workers. Federal regulations require employers to protect employees from hazardous conditions, which during COVID-19 includes authorizing the use of personal protective equipment (PPE), including face masks, gloves and gowns, under the General Duty Clause for the Occupational Safety and Health Administration (OSHA).
OSHA is the agency charged with enforcing workplace safety law, and has received over 500 complaints related to COVID-19 since early March. The agency acknowledged this outrage by issuing an alert on May 14, 2020, that provides safety tips for care facility workers, but has yet to promulgate legally binding regulations, and has been criticized for not taking greater action.
Workers’ fear and anger are palpable in complaints where they report being forced to work while symptomatic or even after having tested positive for COVID-19, being kept in the dark about outbreaks in their own facilities, and being pressured to erase signs of the disease from medical charts and records.
The most common complaint pertains to lack of PPE. For example, at Stafford Hill Assisted Living, in Massachusetts, workers complained they were prohibited from wearing masks as they, “might scare or insult residents.” Additionally, care facilities that are not nursing homes are not classified as primarily medical providers, and this has resulted in reduced access to PPE as they lack the consistent ordering history needed to procure these supplies.
The severity and rising number of workers’ complaints present major allegations, and without stronger regulatory oversight, residents and workers remain at risk.
Part II of this series, which will run next week, will address regulatory and liability-based strategies to improve the care industry in light of COVID-19.
Nicolas Terry, LLM is the Hall Render Professor of Law & Executive Director of the Hall Center for Law and Health at the Indiana University Robert H. McKinney School of Law
Tara Sklar, JD, MPH is a Professor of Health Law and Director of the Health Law & Policy Program at the University of Arizona James E. Rogers College of Law.
