By Nina A. Kohn
Between May 2020 and January 2021, 94 percent of U.S. nursing homes experienced at least one COVID-19 outbreak. And nursing home residents — isolated from family and friends, dependent on staff often tasked with providing care to far more residents than feasible, and sometimes crowded into rooms with three or more people — succumbed the virus at record rates. By March 2021, nursing home residents accounted for a quarter of all U.S. COVID-19-related deaths.
The poor conditions in nursing homes that have been exposed by the pandemic are symptomatic of long-standing problems in the industry.
Fortunately, as I discuss in-depth in a new essay in the Georgetown Law Journal Online, there are a series of practical reforms that could readily improve the quality of nursing home care, in large part by changing the incentives for nursing home providers.
A key problem exposed by the COVID-19 pandemic is the danger of chronic understaffing in nursing homes. Low staffing levels — and especially low levels of nursing staff — predict facilities’ inabilities to control COVID-19 outbreaks and avoid fatalities.
The dangers of understaffing were an open secret long before the pandemic. Even before the pandemic, researchers had shown that most facilities lacked the staff necessary to avoid systemic neglect. Likewise, pre-pandemic nursing homes’ inspection reports provided ample evidence of facilities lacking the staff needed to care for residents (such as those needed to help residents eat without choking, maintain mobility, or simply stay clean. ProPublica’s database of nursing home inspection reports, for example, turns up scores of cases of residents with maggot-infested wounds and skin in the two years preceding the pandemic).
Chronic understaffing doesn’t just result in bad care: it can be lethal. For example, when staff aren’t available to assist residents who need help to stand or walk, residents may fatally injure themselves attempting to get about on their own. Understaffing is also associated with abusive practices. A 2018 Human Rights Watch report found that U.S. nursing homes routinely overmedicate resident with dementia to make them docile and easier to control. This can increase the risk of death and strip residents of their personalities — as one daughter put it, her mother became a “zombie.” Nevertheless, as a 2017 review found, under-staffed facilities appear to use psychotropic medication as a “cost saving alternative to hiring additional RNs.”
Under-staffing is commonplace because while federal regulations set expected outcomes for facilities, regulators do not hold nursing homes accountable for those outcomes. Instead, when nursing homes are found to have violated federal regulations designed to protect residents, they typically face no fine or other penalty; they are simply directed to correct the deficiency. Therefore, unscrupulous providers can increase profits by short-staffing facilities. Indeed, private equity firms continue to buy low-quality nursing homes because of the profit such facilities can generate — especially when owners are willing to sacrifice resident safety to maximize profit.
To address this issue, federal regulators could change the way nursing home penalties are assessed and enforced —imposing more significant fines and using the full range of penalties that federal statutes already authorize. This includes not only monetary fines, but holds on new admissions, and suspensions of payment.
Regulators could also require facilities to have minimum direct care staffing levels that accord with what researchers have found necessary to provide humane care (slightly over four hours per resident, per day).
In addition, regulators could require facilities to use a substantial portion of their revenue to care for residents. For example, New Jersey has adopted legislation requiring nursing homes spend 90% of annual aggregate revenue on direct resident care. This approach could prevent unscrupulous providers from pocketing funds needed for resident care. The key will be to require financial transparency so that facilities cannot hide profit as expenses, and to set spending minimums high (like New Jersey’s 90% requirement and unlike the 70% threshold New York adopted as part of its Budget Bill).
The federal government — the primary payer for long-term care services in the U.S. — could use the power of its wallet to incentivize better care. It could pay nursing homes that provide high-quality care more than those that provide substandard care. Elsewhere in the U.S. healthcare system, pay-for-performance is the norm. But nursing homes that provide excellent care are generally still paid the same as those that provide shoddy care.
The federal government could also improve long-term care by fixing a fundamental market failure that it has created. The federal statute governing Medicaid requires states to cover long-term care services provided in nursing homes to Medicaid beneficiaries, but allows states to choose whether to cover those services in more integrated settings. States that wish to provide home and community-based services (HCBS) to Medicaid beneficiaries needing long-term care typically apply for a “Section 1915(c)” waiver from the federal government. Under the Section 1915(c) waiver program, states are not required to provide HCBS on equal terms with institutional long-term care services, but rather may cap the number of beneficiaries served under the waiver and the cost of services provided. The result is that most states have waiting lists for at least one type of Medicaid-funded HCBS care, and approximately three-quarters of states limit how many hours of care they provide to beneficiaries receiving services through a HCBS waiver program. This institutional bias could be eliminated by amending the underlying statute, as draft legislation being circulated by Michigan Congresswoman Debbie Dingell (D-Mich.) and a handful of U.S. senators would do.
The good news is that, by exposing the dangers of the current system, the pandemic could create an opening for these types of meaningful law reform.
Unfortunately, the political response to COVID-19 provides reason for skepticism about the extent of reform it will spark. At both the state and federal level, policymakers’ primary response to concerns about COVID-19 transmission within nursing homes was not to protect nursing home residents, but rather to protect the nursing home industry.
Roughly half the states in the U.S. granted immunity to nursing homes amid the crisis (some even went so far as to grant immunity from criminal liability and from acts that would otherwise be construed as gross negligence). Similarly, the U.S. Secretary of Health and Human Services used his authority under the Federal Public Readiness and Emergency Preparedness Act (the “PREP Act”) to bar state and federal claims against nursing homes that unreasonably administer or use infection “countermeasures” such as masks and testing. In addition, policymakers responding by waiving — and even eliminating in some cases — existing requirements designed to protect residents. The Centers for Medicare and Medicaid Services initially responded to the COVID-19 pandemic by waiving a series of regulatory requirements for nursing homes, and suspending most enforcement actions. Arkansas even rolled back its minimum staffing requirements in response to industry lobbying.
That said, there are some promising measuring under consideration. For example, at the federal level, there is the Dingell proposal, as well as a Senate bill introduced by Pennsylvania’s Senators that would expand the number of poorly performing nursing homes subject to additional inspections. In addition, the Biden Administration has proposed an additional $400 billion (over eight years) for HCBS, which would help increase access to alternatives to nursing home care, although it would not eliminate Medicaid’s bias in favor of institutional care.
States are also considering reform. For example, proposed legislation pending in Rhode Island would require nursing homes to provide the 4.11 hours of care per resident, per day that research has indicated is necessary to avoid neglect.
In short, policymakers interested in improving long-term care have a variety of straight-forward options available to them. Accordingly, as I suggested in a recent Washington Post piece examining the politics of nursing home reform, the key question is not what can be done to fix America’s long-term care crisis. The key question is whether there is the political appetite to make the changes that are so clearly needed.
Nina A. Kohn is the David M. Levy Professor of Law at Syracuse University College of Law, and a Distinguished Scholar in Elder Law at the Solomon Center for Health Law and Policy at Yale Law School. Follow her on Twitter @ninakohn.