On Thursday, June 11, 2020, the U.S. House Select Subcommittee on the Coronavirus Crisis,1 chaired by Rep. James E. Clyburn, held a video briefing (the "SCC Briefing") with experts and affected individuals to examine the impact of the COVID-19 pandemic on nursing home residents and workers.
With the Center for Disease Control and Prevention ("CDC") nursing home infection and mortality data announced by the Centers for Medicare and Medicaid Services ("CMS") on June 4, 2020 in a CMS Press Release as a backdrop (95,515 confirmed COVID-19 nursing home cases, 58,288 suspected cases, and 31,782 COVID-19 deaths among nursing home residents nationwide), the briefing focused on those factors that have contributed to the disproportionate impact that the pandemic has had on the country's nursing homes. Multiple briefing participants remarked that nursing homes, to varying degrees from one state to another, have suffered from shortages in testing and personal protective equipment ("PPE"). As a result of these shortages and their disparate impact on the states, there has been a patchwork response to the spread of COVID-19 in nursing homes with containment strategies for COVID-19 varying from state to state.
In this article, we will focus on: (i) CDC data recently released by CMS as announced in CMS's June 4, 2020 Press Release; (ii) the data errors and irregularities that have drawn the attention of individual nursing homes, state public health agencies, and public health experts; (iii) the testimony given at the SCC Briefing on June 11, 2020 and the complicating factors that have hampered efforts to contain and reduce COVID-19 nursing home infection rates, and (iv) current state efforts to both address the ongoing spread of COVID-19 among nursing home residents and staff and to reopen nursing homes as part of the overall efforts to open all aspects of civic life. In short, while states are moving toward "business as usual" with the encouragement of the Trump Administration's Opening Up America Again Guidelines, the opening up of nursing homes may be a long way off.
CDC NURSING HOME DATA
A. Federal Nursing Home Data as Reported to the CDC
In an April 19, 2020 CMS Press Release, CMS announced that Medicare and Medicaid participating nursing homes will be required to report COVID-19 cases and deaths directly to the Centers for Disease Control and Prevention ("CDC") pursuant to the terms of new regulations that were published as an Interim Final Rule on May 8, 2020 and effective on May 9, 2020. The reporting requirements are summarized by CMS here. To facilitate such reporting, CDC developed a Long-Term Care Facility COVID-19 Module as part of the CDC's National Healthcare Safety Network to serve as an online reporting tool for nursing homes. In order to make the reported CDC data available to the public, CMS developed and posted a Nursing Home COVID-19 Public File to house the data reported by nursing homes as required by the new reporting regulations. The nursing home data released by CMS on June 4, 2020 is the first release of such data and is dated as of May 31, 2020.
According to the reported data, with 88%2 of 15,400 Medicare and Medicaid-eligible nursing homes reporting as of May 31, 2020, there was a total of 95,515 confirmed COVID-19 nursing home cases, 58,288 suspected nursing home cases, and 31,782 deaths among nursing home residents nationwide. Based upon the foregoing, one-third of all confirmed COVID-19 nursing home cases resulted in death. In response to this statistic, Pat McGinnis, Executive Director of California Advocates for Nursing Home Reform, said that while the CMS data has “too many qualifiers,” it shows “that almost one-third of the residents with confirmed cases have died and that is a very shocking number, but not a surprise given all the problems with lax enforcement, lack of staff, proper PPE and infection control.”3
In a June 4, 2020 press call, CMS Administrator Seema Verma stated that, "this sort of national data from nursing homes is unprecedented and constitutes the backbone of a national COVID-19 virus surveillance system." The data, along with focused infection control inspections of nursing homes, Administrator Verma said, will "inform a number of new regulatory policies to protect nursing home residents."
In discussing the reported data, Administrator Verma acknowledged that there are significant challenges in obtaining coherent and consistent COVID-19 infection and mortality data from the reporting nursing homes. For example, she cautioned that the early numbers may contain irregularities because some nursing homes (i) may have double-counted cases by reporting both new COVID-19 infection cases (confirmed diagnoses first identified after the reporting requirements became effective) and existing COVID-19 infection cases (infections identified prior to the effective date), (ii) provided more comprehensive retrospective data than others; and (iii) counted the deaths of nursing home residents who were hospital inpatients at the time of their death whereas other nursing homes only counted deaths occurring within their facilities. Administrator Verma said that CMS was working to resolve such irregularities as quickly as possible.
B. Criticism of Federal Data
Almost immediately upon the release of the CDC data as reported by CMS on June 4, 2020, criticism started flowing in from multiple states, individual nursing homes, and analysts. In a June 9, 2020 MedPage Today article, "Nursing Homes Shocked at ‘Insanely Wrong' CMS Data on COVID-19," nursing homes from across the country were reporting significant discrepancies between the data they reported to the CDC and the data posted by CMS. For example, a nursing home in Massachusetts was reported by CMS as having 794 confirmed cases of COVID-19 among its residents and 281 cases among its staff. However, according to the facility administrator, the facility actually reported 45 residents as Coronavirus positive and five residents as having died from COVID-19.
According to a June 9, 2020 article in the Las Vegas Journal-Review, "Nevada officials: Federal data on virus nursing home deaths is wrong," a representative from the Nevada Department of Health and Human Services confirmed that a Las Vegas nursing home that was identified by CMS as having 54 reported COVID-19 deaths actually had three such deaths. As reported by the News and Tribune in a June 10, 2020 article, "COVID-19 toll in Indiana nursing homes still unknown," 75 deaths were incorrectly listed for an Indiana nursing home with 75 residents and no COVID-19 cases. Finally, according to a June 4, 2020 article in the Detroit Free Press, "True count of how many COVID-19 deaths in Michigan nursing homes remains unclear," the data released by the Centers for Medicare and Medicaid Services (CMS) shows that there have been 2,297 Michigan deaths of nursing home residents with COVID-19 while the then most recent data reported by the state shows 1,505 coronavirus-related deaths of nursing home residents with 93% percent of nursing home facilities providing information.
Although the errors and discrepancies identified above are likely the result of a combination of possible factors – e.g., inaccurate reporting by the facilities, faulty processing of the reported data by the CDC, a rush by CMS to release the data by the end of May at the expense of additional data scrubbing, etc. – the controversy around the data indicates that it remains unclear just how widespread the coronavirus is in nursing homes nationwide. Nevertheless, with some states reporting that COVID-19 deaths in nursing homes accounting for 50% or more COVID-19 deaths statewide,4 it is clear that nursing homes continue to be hotspots for the spread of COVID-19.
HOUSE SELECT SUBCOMMITTEE ON THE CORONAVIRUS CRISIS: JUNE 11, 2020 BRIEFING
The SCC Briefing involved a bipartisan discussion on the optimal next steps towards curving the devastating impact COVID-19 has had and continues to have on the nursing home population. The discussion materialized into the following three calls for action:
A. The federal government must take ownership of the crisis and supply nursing homes with enough testing and PPE to prevent the spread of COVID-19.
The committee's discussion concluded with a collective call to action to have the federal government take ownership of the crisis, rather than resort to fighting amongst the states to determine whose policies escalated the problem,5 and take the lead on alleviating the crisis by committing material resources behind their guidelines.
Dr. David Grabowski of Harvard Medical School elaborated, "Rather than pushing the logistics and costs of testing and PPE to states and nursing homes, the federal government needs to own this issue. The federal government should set a consistent policy across all U.S. nursing homes and then provide states and nursing homes with the resources to achieve it." He further described the government's efforts as, "non-guidance guidance" in that, "there was no teeth or dollars behind it. And if you don't put logistics, if you don't put costs into this guidance, if it's just simply a theoretical set of guidance for the nursing homes and for the states, it's not actually going to happen... until we get rapid and accurate testing for all staff and residents, we won't be able to contain COVID."
Chairman Clyburn's closing remarks echoed this unified sentiment, claiming, "[W] e need the federal government to ensure our nursing homes have enough testing and personal protective equipment to stop the virus from spreading. That means providing coordination and resources—not just leaving it up to the states."6
B. There must be strong oversight of nursing homes to ensure better protocol for controlling infection and enough qualified staff to implement the protocol.
Allison Lolley, whose mother died of COVID-19 in a nursing home in Monroe, Louisiana, pressed the need to address the lack of quality care being provided to nursing home residents due to a lack of properly trained staff. She shared how her mom told her of several occasions where she wasn't fed her meal, felt manhandled by the staff, and simply lacked attention. The facility, in essence, "was not prepared to handle the crisis due to excessive turnover in staff and a lack of established disaster protocols." Ms. Lolley believes the quality and continuity of her mother's care was compromised and the solution is to reform and properly fund the industry.
Eric Carlson, Directing Attorney at Justice in Aging, reaffirmed Ms. Lolley's concerns, stating that in his 30 years of experience with nursing facilities, finding a good facility is frequently the exception. The majority of nursing homes are short staffed, which puts nurse aids in a "no win situation." He referenced a report released by the U.S. Government Accountability Office on facility infection prevention practices, which found 82% of nursing home facilities had at least one deficiency in the 5 year period and almost 50% of the facilities had committed violations in multiple consecutive years. He infers that these deficiencies persist over multiple years because the evaluation system generally classifies deficiencies in infection prevention policies as "no harm," meaning there is no meaningful enforcement to correct them.
These results are not likely to improve without significant intervention given that CMS has completely waived nurse aid training standards.7 According to Mr. Carlson, the risk of not having enough aids is outweighed by the need to have providers that have proper training. In short, the COVID-19 outbreak "emphasizes the need for federal policy to have accountability from nursing facilities."8
C. Nursing home staff members are essential workers that must have accessibility to testing, PPE, fair pay and paid sick leave so that they are not compelled to either work while they are sick or with the fear of getting sick.
Chris Brown, a certified nursing assistant with nearly 30 years' experience in the healthcare industry, explained how the challenge of working with a short staff preceded the COVID-19 pandemic; the pandemic has only shone the light on this challenge.
For nursing home staff, working during the pandemic means increased contact with residents, residents which you often have no way of verifying whether they have tested positive for COVID-19 or have even gotten tested at all. In his best attempt to protect himself from this invisible disease, Mr. Brown describes wearing a garbage bag in place of a gown because the nursing home doesn't offer adequate PPE. A single use mask represents the extent of the PPE his facility provides him, despite his job requiring him to have extensive physical contact with residents. He notes how fellow nursing home workers resort to saving their masks in paper bags as a way to ration them.
The absence of testing and PPE is only exacerbated by the need for fair pay. In arguing to raise the pay of nursing home workers, Mr. Brown reasoned, "I can go to McDonalds and flip a burger, and I can make more than I'm making ... doing the back-breaking work of taking care of someone's family member." He explained that these issues are not unique to his facility. Nursing home staff across the country deserve to live with dignity and comfort by being valued properly with fair wages and paid sick leave. Providing them with these bare necessities would spare them the unenviable decision of (i) staying home when they feel ill so as to not risk spreading the disease to the facilities' residents, but be unable to pay their bills or (ii) go to work and keep their electricity connected, but potentially spread the disease. "We're calling these people heroes, [but] that's not going to cut it."9
A SELECTION OF STATES: WHERE ARE WE NOW?
There is a growing concern amongst health officials that California's advancement towards reopening the state will coincide with a rise in COVID-19 outbreaks at nursing homes and assisted living facilities. As it stands, there have been over 1,400 deaths caused by COVID-19 in long-term care homes licensed by the California Department of Public Health and the California Department of Social Services. Over 40% of California's COVID-19 related deaths are believed to come from nursing homes.10 State public health officials acknowledge that the actual total is likely higher.
Given how readily COVID-19 spreads, public health officials are concerned the outbreaks may be fueled by transmission among staff workers, particularly regarding workers that utilize public transit and/or hold jobs at multiple facilities. These workers face a high level of exposure, as do the nursing home residents they interact with on a daily basis.
Compounding the problem was the concern among state regulators that the pandemic would create a shortage of staff due to illnesses and absences. Regulators responded by creating waivers that loosened the staff training requirements and background checks. While this has made it easier for facilities to hire staff, it has also created less oversight of deficiencies and standard violations because regulators and inspectors are not able to physically attend these facilities.
In the latest effort to combat the spread of COVID-19 in skilled nursing facilities in particular, California has issued new guidance on cohorting. According to the guidelines, such facilities should implement three separate cohorting areas:
(i) red cohort (isolation) for residents who have laboratory-confirmed COVID-19;
(ii) yellow cohort (mixed-quarantine & symptomatic) for residents who are newly admitted or re-admitted, have possible symptoms of COVID-19 or have been in close contact with known cases of COVID-19;
(iii) green cohort (non-COVID-19 patient care area) for residents who do not have COVID-19; residents must have either completed quarantine, cleared isolation, or have tested negative and remained asymptomatic after initial negative baseline testing.11
Additional information on each cohort along with requirements for transitioning from one cohort to another can be found in the "Guidelines for Preventing and Managing COVID-19 in Skilled Nursing Facilities."
Nursing homes remain at the epicenter of the COVID-19 pandemic in Illinois with deaths at such facilities accounting for more than half (55%)12 of all coronavirus deaths in the state. Data shows at least 3,649 COVID-19 related deaths in the state's roughly 1,200 facilities. In accordance with the CDC, Governor Pritzker confirmed he doesn't foresee nursing home and long term care facilities reopening to visitors in the near future so long as visitors pose a risk to its residents. He elaborated, "COVID-19 doesn't live in a facility; it comes in with somebody and then it spreads. I must admit to you the CDC is telling every state this may be one of the last things happening with COVID is ... visitors being able to come back in those facilities ... ."
Illinois attempted to mitigate the outbreak early on by restricting visitors at nursing homes as early as March, before the state stay at home order was implemented. Still, the disease has infected over 136,000 Illinois residents.13 The state understands that nursing homes face the added challenge of housing residents who are at an elevated risk for severe cases of COVID-19 due to their age and underlying conditions. In an attempt at proactive prevention, state officials have increased testing of staff and residents, provided personal equipment and isolated the sick. Additionally, facilities that have faced outbreaks have reached out to infections disease prevention experts to assist in getting such outbreaks under control.
Pritzker claims the ultimate goal is widespread testing, but in echoing the sentiment across various other states, he acknowledged, "If we had the national leadership on this subject, if we had the supplies available, we could do this much more quickly, but we're getting to it as fast as we can."14
Like the majority of states across the country, Massachusetts nursing homes have been disproportionately affected by COVID-19. Over 4,300 facility residents have died while at least another 21,400 residents and staff have tested positive or are considered likely to have contracted the virus. Such deaths account for at least 63% of all COVID-19 related deaths in Massachusetts.
And yet, on June 3, 2020, Massachusetts became the first state/commonwealth to reopen nursing home facilities to visitors with appointments. Due to the increased risk facing its residents, such facilities had banned all non-essential visitors and workers from visiting since March. As precautionary measures, visitors need to abide by the following:
- All visits must be scheduled in advance and take place in designated outdoor areas. (End-of-life-care visits may take place indoors in private rooms.)
- An employee trained in patient safety and infection control measures must be present at all times during the visit.
- All visitors will have their temperature taken and be screened for COVID-19 symptoms. Anyone with a "fever equal to or greater than 100.0F, cough, shortness of breath, sore throat, myalgia, chills or new onset of loss of taste or smell" will not be allowed to visit a resident.
- During a visit, all employees and residents must wear surgical face masks, and visitors must wear some sort of face covering and remain at least six feet away.
- No more than two visitors will be allowed to see a resident at once.
- Staff must be able to transport residents safely to and from the outdoor visitation space. "At a minimum, safe transport means that the resident cannot be transported through any space designated as COVID-19 care space or [any] space where residents suspected or confirmed to be infected with COVID-19 are present."
- Residents who have the coronavirus, or who are suspected of having it, may not receive visitors; those who have recovered may.
- Any visitor who develops symptoms consistent with COVID-19 within two days of a visit must alert the facility.
The reopening was made possible in part by the state's ability to confirm that 350 of its 360 state wide nursing homes have been able to test at least 90% of all residents and staff. As further caveats, long-term care facilities may "limit the length of any visit, the days on which visits will be permitted, the hours during a day when visits will be permitted, and the number of times during a day or week a resident may be visited." Visits will also be dependent on "permissible weather conditions, availability of outdoor space, and sufficient staffing at the facility to meet resident care needs, and the health and well-being of the resident."15
D. New York
New York has remained silent on the timeline for when relatives of nursing home residents may resume visiting, saying only that the visitation ban will remain in place "until further notice." This has led to push back from families seeking the resumption of visitation rights amidst the reopening of other businesses across the state. Governor Andrew M. Cuomo first implemented a stop to nursing home visitations two months ago to prevent COVID-19 outbreaks in long-term facilities. The Health Department maintains that it's simply trying to protect this vulnerable population given nearly 6,000 people have died form COVID-19 across the 600 such facilities in the state.
In an effort to quell family concerns about social distancing and provide updates on residents, the state Health Department has required nursing homes to conduct video calls and assigned staff members as "primary contacts" with families for inbound and outbound calls.
Still, residents' family members argue it's time to allow them to be with their loved ones. One family member, whose 100-year-old mother died alone in the nursing home during the ban, claimed, “Nursing homes can tell us anything they want. My family was mailing my mother cards and pictures and I asked the nurses to read the cards to my mother because she was frail. They said they would, but when I received my mom's possessions, the envelopes had never been opened," Yet another family member, whose brother suffers from a traumatic brain injury, explained her issue with the dehumanization of the ban by claiming, "I know we are all feeling some social deprivation during these times. But I can't imagine feeling any more lonely than my brother, in a nursing home bed, paralyzed, with nothing but the TV for company, day in and day out. Not seeing your loves ones is cruel."
Officials from the Health Department and nursing homes have attempted to express their sympathy with family members' frustrations while maintaining that they're simply attempting to abide by the guidelines to prioritize this vulnerable population. Chuck Hayes, spokesman for an Illinois nursing home stated, "Nothing can replace the warmth of a visit from a loved one, but we must adhere to the proven guidelines that safeguard this very vulnerable population.” Jeffrey Hammond, spokesman for the Health Department, insists that the top priority must be "protecting our most vulnerable populations."16
The nursing home and assisted living facility residents in Texas continue to be heavily and disproportionately affected by COVID-19. Among the reported 311 nursing homes with confirmed cases, 3,011 residents have contracted the disease and 490 have died. At 112 assisted Texas living facilities with at least one confirmed coronavirus case, 382 residents have contracted the disease and 95 have died. Together, at least 585 residents from both kinds of facilities have died. Across the state, there have been 1,272 COVID-19 related deaths. It remains unclear whether all of the long-term care facility patients' deaths are included in the state total; however, the numbers still show the disproportionate COVID-19 fatalities that have impacted this vulnerable population.
The pandemic has impacted the nursing home population across the state from Texas City to San Antonio. Residents' families argue that Texas is not being completely transparent by refusing to release the names of nursing homes with COVID-19 cases. Regardless, the data shows multiple nursing homes and at least one assisted living facility in each public health region with a confirmed case.17
Moreover, on June 3, Governor Greg Abbot announced the third phase of the State of Texas' plan to reopen the economy in which all Texas businesses will be able to operate at up to 50% capacity, with limited exceptions. Nursing homes fall within such exceptions as people are still asked to avoid nursing homes, state supported living centers, assisted living facilities and long-term care facilities. This is in large part because such facilities are still viewed as hot spots considering that between May 26 and June 2 over 45% of new COVID-19 confirmed cases came from jails/prisons, meat packing plants and nursing homes.18
This article is not an unequivocal statement of the law, but instead represents our best interpretation of where things currently stand. This article does not address the potential impacts of the numerous other local, state and federal orders that have been issued in response to the COVID-19 pandemic, but which are not referenced in this article.
1 The House Select Committee on the Coronavirus Crisis as established by the CARES Act is a special bipartisan House oversight panel empowered to examine all aspects of the federal response to the coronavirus.
2 CMS Administrator Seema Verma said during a June 4, 2020 press call that CMS teams are working to get reports from the other 12% of nursing homes with missing data. Administrator Verma noted that after a grace period ending on June 7, 2020, CMS is authorized to impose a financial penalty of $1,000.00 on those facilities that fail to report by the end of the grace period. If such facilities fail to report for more than a week after the grace period, CMS can impose an additional $1,500.00 penalty for a total of $2,500.00. For each additional week thereafter, non-reporting nursing homes are subject to additional penalties.
3 " COVID-19 in Nursing Homes: CMS Names Names — Agency rolls out data reports for individual facilities" by Cheryl Clark, MedPage Today (June 5, 2020).
4 According to "COVID‐19 Deaths in Long Term Care Facilities ‐ a Critical Piece of the Pandemic Puzzle," a study (the "AGS Study") published on June 5, 2020 in the Journal of the American Geriatrics Society, data from 40 states shows that, by the end of May, COVID-19 deaths in long-term care facilities ("LTCFs") accounted for 50% or more of all COVID-19 deaths in 26 states. Overall, among the 40 states providing LTFC mortality data (including Washington DC), an average 43% of their total deaths occurred in LTCFs.
5 New York, New Jersey and Michigan received significant criticism for implementing policies that directly conflicted with the CDC and CMS guidelines that had recommended nursing homes not allow the admittance of persons infected with COVID-19 if the facilities were not equipped to properly isolate them from the rest of the nursing home population. In New York's case, governor Cuomo's executive order prohibited incoming residents to be tested in hopes of maximizing the capacity of local hospitals to admit patients; New York's executive order has since been repealed but Michigan still has a similar order in place. On the other hand, Florida was praised for requiring persons test negative twice before being admitted into a nursing home facility.
6 Press Release, "Select Committee Briefing Confirms Urgent Need for Federal Action to Protect Nursing Homes form Coronavirus," June 12, 2020, https://oversight.house.gov/news/press-releases/select-committee-briefing-confirms-urgent-need-for-federal-action-to-protect.
7 Normally, nurse aids must complete at least 75 hours of training and pass a training examination.
8 Press Release, "Select Committee Briefing Confirms Urgent Need for Federal Action to Protect Nursing Homes form Coronavirus," June 12, 2020, https://oversight.house.gov/news/press-releases/select-committee-briefing-confirms-urgent-need-for-federal-action-to-protect.
9 Press Release, "Select Committee Briefing Confirms Urgent Need for Federal Action to Protect Nursing Homes form Coronavirus," June 12, 2020, https://oversight.house.gov/news/press-releases/select-committee-briefing-confirms-urgent-need-for-federal-action-to-protect.
10 Jocelyn Wiener, "Who's watching now? COVID-19 cases swell in nursing homes with poor track records," June 15, 2020, https://calmatters.org/health/coronavirus/2020/06/nursing-homes-coronavirus-deaths-infections-inspections-violations-kingston-california/
11 "Guidelines for Preventing and Managing COVID-19 in Skilled Nursing Facilities", June 17, 2020, http://publichealth.lacounty.gov/acd/docs/nCoVLTCGuide.pdf
12 Ben Pope, "Illinois announces another 45 coronavirus deaths as nursing home cases continue to rise," June 24, 2020, https://chicago.suntimes.com/coronavirus/2020/6/20/21297828/illinois-coronavirus-deaths-cases-pritzker-reopening-nursing-homes-june-20
13 "Virus outbreak at nursing homes infects 1,031, kills 168 people in Illinois counties in News 4's viewing area," June 20, 2020, https://www.kmov.com/news/virus-outbreak-at-nursing-homes-infects-1-031-kills-168-people-in-illinois-counties-in/article_fbad5058-8c0d-11ea-8ff6-afee74931a8c.html
14 Kelly Bauer, "Coronavirus in Chicago: Nursing Homes Can't Reopen to Visitors Anytime Soon," May 28, 2020, https://blockclubchicago.org/2020/05/28/coronavirus-in-chicago-nursing-homes-cant-reopen-to-visitors-anytime-soon/.
15 Hayden Bird, "Here are the guidelines as Mass. Nursing homes begin to reopen to visitors," June 2, 2020, https://www.boston.com/news/coronavirus/2020/06/02/when-will-mass-nursing-homes-open.
16 Lou Michel, "Cuomo administration won't say when nursing home visits will resume," June 1, 2020, https://buffalonews.com/2020/06/01/cuomo-administration-wont-say-when-nursing-home-visits-will-resume/.
17 Clare Proctor, "Thousands of Texas nursing home residents have tested positive for coronavirus," May 15, 2020, https://www.texastribune.org/2020/05/15/texas-coronavirus-nursing-homes-long-term-care-facilities/.
18 KLTV Digital Media Staff, "Gov. Abbott announces third phase of plan to reopen Texas," June 3, 2020, https://www.kltv.com/2020/06/03/gov-abbott-announces-third-phase-plan-reopen-texas/.
Originally published by Sheppard Mullin, on June 2020
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.