Federal and state officials almost seem as if they are competing with each other to race to new lows in their wrong-headed failure to protect elderly, sick, and injured Americans who require institutional care and whose health and lives are being savaged by the novel coronavirus.
An estimated 1.5 million Americans live in long-term institutions, including nursing homes, assisted living centers, skilled nursing facilities, memory care hospitals and the like. Covid-19 has taken a terrible toll on these frail, chronically ill, or seriously injured and debilitated people with more than 27,000 residents and staff dying from the novel coronavirus — roughly a third of all the disease fatalities nationwide. A third of the coronavirus deaths in the District of Columbia have been in skilled nursing facilities, while 40% of the Covid-19 deaths in California, the nation’s largest state, have been in nursing homes.
In the latest baffling response, President Trump and Vice President Mike Pence both suddenly have “recommended” that states get nursing homes and other similar facilities to step up the testing of residents and staff. They did not make this common-sense step mandatory, nor did they offer any word on how the federal government could help achieve this. As the Associated Press reported:
“Why the government is not ordering testing at the nation’s more than 15,000 nursing homes was unclear. Nor was it clear why it is being recommended now, more than two months after the nation’s first major outbreak at a nursing home outside of Seattle that eventually killed 45 people.”
In fact, as the nonpartisan, nonprofit Kaiser Health News service reported of testing, a crucial public health measure to deal with the novel coronavirus:
“As the coronavirus has raced through long-term care centers and killed thousands of America’s most vulnerable seniors, testing has varied widely across facilities, even within the same states and communities. There’s still no federal mandate to test … Rules about testing, and public reporting of results, differ from state to state and by type of facility. Shortages of test kits linger, and there’s no uniform standard on which entity should do the testing or how often. Advocates for seniors say all of this is unacceptable. It leaves families fearing for their loved ones’ lives. ‘We really need to be testing all the residents and staff in these facilities. They are petri dishes,’ said Brian Lee, who leads the Families for Better Care advocacy group in Austin, Texas. ‘The bodies are still piling up. These are our parents and grandparents. They’re not a disposable generation.’”
The federal Centers of Medicare and Medicaid Services (CMS) is the agency with oversight of long-term care facilities in this country. In March, it did order the facilities shut to outsiders. But the agency also suspended its inspections, saying it would focus on facilities with histories of infection control problems or those experiencing challenges. That move not only lacked follow up, it sent a message to states and other regulators about laxity during the pandemic — with nightmarish results. As KHN also reported:
“It wasn’t until April 19 that the federal government began requiring nursing homes to report cases of Covid-19 to the [federal Centers for Disease Control and Prevention], plus notify residents and families about them. The Centers for Medicare & Medicaid Services has said it expects to post the information weekly by the end of May. But that rule doesn’t apply to assisted living facilities, because they don’t face federal oversight. A Kaiser Family Foundation analysis said it’s unclear how comparable the nursing home data will be across states. Researchers pointed to wide variation among the 39 states that have reported data.”
The experts quoted by KHN underscored that it is vital to test, track, and isolate those infected with the coronavirus and to be transparent about data and responses to the disease.
In Maryland, Virginia, and the District of Columbia, it has become clear how deadly the bungling has been for nursing home residents — by politicians, regulators, operators, and the facilities’ low-paid, under-trained, poorly equipped, and terrified staff. Public shaming, with excellent media reporting and speaking up by loved ones and patient advocates, has proven to be among the few ways to disinfect the dirty and dire circumstances that too many residents of nursing homes and other facilities have found themselves stranded in.
The disclosures have raised fundamental flaws in officials thinking and actions, notably on the critical matter of testing — both to determine who has the disease now and who, with blood antibody exams, may have been exposed to it before. Media reports and congressional complaints led the federal Food and Drug Administration to finally step in and order antibody test providers to show their products’ accuracy or pull them off the market. Virginia officials, in recent days, have been forced to fess up by reporters that they were fudging test results, combining data on the two different types of tests rather than stating them separately, as most other governments are doing. The combo data made it look as if the commonwealth ran more tests and could have affected key measures, such as the rates of infection and death.
The national media, with the voluble commander-in-chief in his typical unchecked fashion, also gave a clear and jaw-dropping view into the executive “thinking” that may underlie the pokey federal action on Covid-19 testing, with Trump saying in a Pennsylvania plant:
“’And don’t forget, we have more cases than anybody in the world. But why? Because we do more testing. When you test, you have a case. When you test, you find something is wrong with people. If we didn’t do any testing, we would have very few cases.’ Trump said the news media had refused to report his ‘common sense’ explanation for the country’s high case numbers.”
Roger that, Mr. President. We’d have fewer breast cancer cases if we didn’t have mammograms?
Contrary to White House insistence that tests now are available to all, nursing homes and long-term care facilities still confront huge challenges in getting the tests they need, as well as the personal protective equipment their caregivers require, and the medical support required to put down Covid-19 infections as they break out in facilities. These are no small challenges, as Maryland and other states have discovered, needing, for example, to muster National Guard medical corps for emergency assistance to nursing homes and other similar facilities.
The federal government and states, however, also have acted in unhelpful ways with the Covid-19 pandemic and long-term care facilities.
The Wall Street Journal, for example, reported that safety advocates and nursing home operators alike expressed major concerns about proposals floated by CMS for facilities soon to begin allowing families and others to resume visits to residents. With PPE and testing still so uncertain, premature re-opening could fuel further and new infections, regulators were told. They are still mulling their plans.
In the meantime, New York state quietly has reversed and order and practice that critics say contributed to the Covid-19 mess — allowing hospitals to ship “recovering” patients to nursing homes and long-term facilities and barring them from refusing to take them. The state’s turn-about not only has included significant support for testing in the facilities but also the requirement that hospital patients must test negative before they can be sent to them to recuperate further. As the Wall Street Journal reported:
“The policy before the U-turn is one of several decisions the state made that are now coming under fire, as New York’s death toll tied to nursing homes rises, to 5,398 presumed and confirmed fatalities as of May 12, more than any other state and a significant part of New York’s total deaths. ‘The state has failed to protect the lives of the most vulnerable members of our community,’ said Ron Kim, a Democratic member of the state Assembly whose Queens district has seen many nursing-home deaths. ‘The fact that we maintained and pushed Covid-positive patients into facilities that were not equipped to handle them, it was a fatal error.’ New York Gov. Andrew Cuomo in a news conference … said the new policy on hospital transfers would reduce the burden on nursing homes. The original policy, issued from the department of New York Health Commissioner Howard Zucker, had come amid a ‘scramble to provide more hospital beds.’ Mr. Cuomo said the change didn’t reflect a view that the original directive was flawed, and that nursing homes should not have accepted patients they weren’t able to care for … The transfer of recovering coronavirus patients to nursing homes compounded broader vulnerabilities at the facilities, including low levels of staffing and limited access to protective gear and testing, which made them weak spots in New York’s fight against the pandemic. Despite the homes’ elderly, frail populations, the state long put its major focus on the safety, staffing and supplies of hospitals, according to researchers, consumer groups and nursing-home executives.”
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 by abuse and neglect at nursing homes and other long-term care facilities. Hospitals and nursing homes, the pandemic clearly has shown, may have pushed their profit seeking to the extreme, while doing too little with infection control and for the safety and quality of their care, including with medical errors and misdiagnoses.
Health care workers, of course, deserve huge praise in general for their courage and dedication during the coronavirus crisis. Hospitals and nursing homes and their staff have gotten major leeway for their efforts treating the infected and dying.
But politicians and regulators need to be held to account by informed voters about the Covid-19 pandemic and its response. So, too, must operators of hospitals and nursing homes and other long-term care facilities be made accountable for actions shown to be abusive, negligent, or criminal. We need investigations from even more newsrooms, with oversight hearings, too, in statehouses, and on Capitol Hill. As the Center for Justice and Democracy at New York Law School has pointed out in its discussion of “unsafe harbors,” we cannot shrug and give wrong-doers legal immunity from lawsuits in the civil system, especially if it is sneaked into big, emergency bills. The aged, sick, and injured — huge numbers from a generation that spent their lives making the nation greater — cry out to us, not only for protection in their time of need but also for justice for the needless harms done to them.
