We need a better CARES package for the elderly

In February and early March, the nation watched as COVID-19 swept through Life Care Center, a nursing home that became the early epicenter of the outbreak in Washington state. One home, 35 deaths, 129 infections. This was enough for the Centers for Disease Control and Prevention (CDC) to release special guidelines about containment of the virus in skilled nursing facilities. Since then, however, Congress and state governments have done little to ensure that the most vulnerable among us — the elderly — have the supplies and the support that they need. 

The number of deaths in nursing homes is surging, and more than 3,800 residents are reported to have died from the pandemic. Unlike in other nations, this is not because of any “triage” decision, where resources are intentionally allocated to younger populations for the sake of getting a better return on investment. In our country, the elderly’s exposure to COVID-19 is related to lack of governmental oversight, which can and should be easily corrected.  

The health care provision of the Coronavirus Aid, Relief, and Economic Security (CARES) Act was designed to protect patients in health care facilities. So far, attention — and allocation of funding — has been going primarily to hospitals, which obviously need resources so that medical professionals don’t have to decide who gets treated and who dies. But it is equally obvious that we need to make sure the elderly don’t end up in those hospitals in the first place. The 2.5 million elderly Americans in long-term care facilities are most susceptible to high mortality risks from COVID-19, since with age comes many co-morbidities that decrease the survivability of elderly coronavirus patients. 

Long-term care providers are facing immediate and dire circumstances, as supplies run low and staffs dwindle, but the current guidance under the CARES Act is unclear as to how they actually might receive funding to ameliorate the situation. As it stands, estimates project there could be as many as 87,000 deaths among the elderly if drastic action isn’t taken immediately. More than 2,500 homes across the country have reported cases.

The risk to the elderly is not a consequence of negligent medical staff. Skilled nursing facilities and assisted living communities have made unprecedented investments in response to this crisis, expenses that are directly tied to providing an appropriate response to the threat of the pandemic. Physical distancing, for example, is less effective in places such as nursing homes, because people simply live closer together, and so devoted staff have to be more vigilant to keep contagion at bay. Without additional staffing and other resources, such as personal protective equipment for medical professionals and extra essential daily supplies for residents, it will be difficult to protect people from exposure or contain the virus if a resident gets sick. The result is that these homes and communities face an unsustainable operational and financial burden.

Adding insult to injury, aside from the Health and Human Services (HHS) portion designed to reimburse medical facilities for coronavirus-related expenses, the CARES Act contains provisions to protect American employees and small businesses, but nursing homes and long-term care facilities are also precluded from this aspect of the legislation.   

Under the CARES Act, the Paycheck Protection Program is available to any small business with fewer than 500 employees, which would seem to apply to many nursing and care facilities. However, the Small Business Administration’s (SBA) “affiliation rules” dictate that when determining whether an applicant is eligible for a loan, the administration looks at not only actual employees of the nursing home or care facility but also employees of affiliate facilities. This negatively impacts many, if not most, nursing homes and care facilities, which, although separate and independent entities for the most part, often operate in the franchise model. 

Congress explicitly excluded other franchises from these limitations, such as hotels, restaurants and bars. The same exception should apply to our front line, life-saving employees at nursing homes and long-term care facilities.

In short, nursing and long-term care facilities should be eligible for assistance under both the HHS Health Care Provision of the CARES Act, which distributes needed money to health care facilities, and the SBA Payroll Protection Program, which allows small businesses to get loans. Currently, these facilities cannot benefit from either provision.  This must be rectified. Financial assistance is essential for the safety of residents in many of these homes, which face an immediate crisis from the lack of health care workers and essential supplies.   

Americans who began their lives with the Great Depression and World War II should not have to fear for their lives today.   

Dr. Mark Goldfeder is an attorney and law professor who has served on President Trump’s private legal team in matters unrelated to COVID-19.

Dr. Ira Bedzow is an associate professor of medicine, the director of the Biomedical Ethics and Humanities Program, and head of the UNESCO Chair in Bioethics at New York Medical College.