Addressing the crisis in long-term care facilities

Bodies are piling up in long-term care facilities across the country and spiraling death rates show no signs of subsiding. These facilities are prime breeding grounds for infection. In addition to residents’ inherent vulnerability, measly sick leave policies encourage staff to come to work sick, and low pay leads direct care workers to hold multiple jobs — often at other long-term care facilities. 

The result is staff are nearly perfect vectors for COVID-19, as outbreak patterns in Seattle suggest. Indeed, even prior to the pandemic, most nursing homes — including those earning “five stars” on the federal government’s Nursing Home Compare website — had documented infection control problems.  

The federal response to COVID-19 will do little to improve nursing home residents’ odds of survival. Rather than ramping up efforts to protect residents, the Centers for Medicare and Medicaid (CMS), which oversees nursing homes, has responded to the novel coronavirus with guidance that prevents meaningful oversight. 

In normal times, there are three key sources of oversight for nursing homes: state surveyors, ombudsmen and family members of residents. CMS has now banned visits by family and ombudsmen except in very limited situations. It has also hobbled surveyors’ efforts by, among other things, waiving key disclosure requirements related to staffing that are used to assess compliance with quality of care standards. Even enforcement tools have been deliberately idled: CMS has suspended enforcement of most regulatory violations by nursing homes, as well as processes for responding to complaints raised by residents or family members.

As bad as the situation is in nursing homes, conditions may not be much better in assisted living facilities, which are home to approximately 1 million individuals. Unlike nursing homes, these facilities are not subject to robust federal regulation. Also, because many states have limited requirements for what care must be provided, we can expect not only problems with infection control but also that facilities will respond to staffing crises precipitated by COVID-19 by reducing services on which residents rely.

The current situation exposes the need for enhanced regulatory oversight of long-term care. Protecting assisted living residents will require more states to adopt and enforce reasonable quality of care standards.  Protecting residents of nursing homes, by contrast, largely requires more meaningful enforcement of existing requirements. Although CMS requires nursing homes to have reasonable infection control practices, the penalties for deficiencies are increasingly so minor that it is more cost effective to accept the consequences of violations than to prevent them. 

In addition, the crisis should prompt reconsideration of the federal government’s steadfast refusal to require the minimum staffing requirements needed to avoid the systemic neglect that puts patients at risk for infection.

Fortunately, even in this bleak environment, steps could be taken now to improve the odds of survival and wellbeing in the nation’s long-term care facilities. First, states could — as Canadian provinces have — prohibit staff from working in more than one long-term care facility, which would reduce the risk of staff  spreading the virus. 

Second, providers who have not already done should institute consistent staffing assignments that minimize the risk of contagion within facilities. Especially when personal protection equipment (PPE) is limited, as is appallingly the current norm, controlling spread also requires minimizing the extent to which staff serve multiple groups of residents. Unfortunately, guidance from the Centers for Disease Control and Prevention (CDC) has emphasized the need to segregate residents but not the need for separate staffing teams. 

Third, states, communities, non-governmental organizations and families could invest in cell phones, tablets, or other communication devices that residents could use to connect with the outside world.  Residents may be the only people in a position to report the conditions they face; such devices may enable some to alert those who could help. In addition, with communal meals and activities banned as part of social distancing, the plague of loneliness is increasingly dire, but residents often lack access to phones and smart technology that could provide a sense of connection.  

Fourth, better tools could help some residents leave dangerous facilities. For many residents leaving is not feasible: their needs are too great to be met outside a facility at a time when home health resources are limited, they lack family willing to take them in, or they pose an unreasonable risk of infection to would-be caregivers. In limited cases, however, it may be reasonable for a resident to move in with family or friends. Public health organizations and others could assist families navigating these decisions by creating decision-aids, such as those developed in Ottawa, to walk them through options. 

Finally, family members and others who care about residents must make it clear to facility directors and owners that they are paying attention to what is happening inside homes. Family members should ask facilities about their infection control protocols and staffing patterns. Those who are health care agents for nursing home residents should not be afraid to request access to medical records, as federal law entitles them to do, if facilities are not forthcoming with information about the care being provided. 

The crisis in long-term care facilities is horrific and is unlikely to get better soon. Although long-term solutions are critical, we must not ignore the concrete steps that could be taken now to save lives and improve the well-being of current residents. Individuals who live in long-term care facilities matter even in times of crisis.

Nina A. Kohn is the David M. Levy professor of law at Syracuse University and a visiting professor at Yale Law School. Her research focuses on the civil rights of older adults. Follow her on Twitter @NinaKohn.