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Dancing with Wolves—The Failure of Government Oversight of Nursing Homes Before and During the Pandemic

The views expressed are those of the author and do not necessarily reflect the views of ASPA as an organization.

By Richard T. Moore
January 28, 2021

Aesop’s Fables are centuries old, but they can serve as warnings today. For example, there’s the fable of, “The Wolf and the Shepherd.” As the Fable reveals, “A wolf stayed with a flock of sheep until the shepherd started to ignore it. With that opportunity, the Wolf struck and had his meal.”

The federal Centers for Medicare and Medicaid Service (CMS) and its oversight of nursing homes may well be a modern-day example of Aesop’s wisdom. Despite assurances that the agency was holding nursing homes accountable through regulatory oversight, evidence suggests that the agency failed miserably.

The modern version of the wolf and shepherd is no fable. Since 2017, the nursing home residents were like unprotected sheep, and the CMS shepherd was boasting of the care being given while leaving the sheep in the care of the wolf—the nursing home industry. The Washington Post printed an article on October 29, 2020, titled, “As Pandemic Raged and Thousands Died, Government Regulators Cleared Most Nursing Homes of Infection-Control Violations.” The article’s byline repots, “Despite promises of ‘aggressive enforcement,’ over 40,000 residents died in homes that received a clean bill of health.” That body count has since surged.

“I can’t think of one decision that CMS made properly,” said Charlene Harrington, a sociology and nursing professor at the University of California at San Francisco who has studied the industry for more than 30 years. “They just rolled over, whatever the nursing homes wanted. CMS made it so much worse than it could have been if they had just kept their oversight in place.”

Lack of effective oversight and meaningful penalties pre-dates the COVID-19 pandemic. At the behest of the nursing home industry, the Trump administration implemented an easing of safety and quality requirements imposed during both Bush and Obama terms. The Center for American Progress, in April 21, 2020, reported that the, “Trump Administration’s Deregulation of Nursing Homes Leaves Seniors and Disabled at Higher Risk for COVID-19.”

The Center reported that, “The nursing home lobby rebelled against this increased level of oversight and rising penalties. The inauguration of President Donald Trump and the growing Republican control of Congress saw the beginning of a robust advocacy campaign by the industry to roll back the changes, citing the onerous nature of the standards and the severity of the financial penalties.”

They noted that as early as, “March 2017, lobbyists for the nursing home industry also began advocating for changes to the Nursing Home Reform Act. They argued that fines should be significantly lessened or eliminated if there was no harm done to residents or if the situation took place before an inspection. They also asked to eliminate the requirement for nursing homes to evaluate the staffing levels needed to provide adequate care—and wanted residents to agree to binding arbitration should they seek to sue at some point in the future.”

A report by the Government Accountability Office (GAO) in May 2020 that covered pre-pandemic regulation of nursing homes states, “All states had facilities with infection prevention and control deficiencies cited in multiple consecutive years, indicating ‘persistent problems.’ These deficiencies include staff failing to regularly use proper hand hygiene,” a preventive measure that’s been available for nearly 200 years.

GAO also found that nearly all infection prevention and control deficiencies were classified by surveyors as not severe, meaning the surveyor determined that residents were not harmed, and implemented enforcement actions for these deficiencies were typically rare.

It appears that nursing home regulations were not seriously enforced before the pandemic, leaving the older adults residing in these facilities with inadequate oversight. When the COVID-19 pandemic appeared, the impact of that failure was magnified, resulting in nursing homes accounting for nearly two-thirds of all coronavirus deaths.

State regulators, who conduct the inspections, share the blame for inadequate oversight with CMS and the Trump Administration. As the Kaiser Family Foundation (KFF) reported, “CMS will withhold CARES funds from state survey agencies that do not timely complete inspections, but these penalties may be too blunt for agencies whose lack of compliance stems from insufficient funding in the first place. As noted above, prior to the new CARES Act funds, the survey and certification budget had remained flat since 2014.” With the onset of the pandemic nursing homes, the center of the pandemic, begam seeking tax breaks, federal cash infusions and protection against lawsuits at both state and national levels.

It seems likely that the assault on government oversight will continue, unless the Biden Administration takes a hard look at how much oversight and the funding that supports it have declined. Proposals for reform submitted by a newly formed independent commission set up by the Trump administration need to be thoroughly and skeptically examined. The commission, which has a heavy complement of nursing home industry representatives, met for weeks behind closed doors, providing limited opportunities for public input. “Advocates for nursing home reform are concerned that the group will suggest the government scale back oversight of the industry and relax some long-standing federal standards meant to protect the well-being of residents.”

Author: Richard T. Moore has served in both elective and appointed public office at local, state, and federal levels of government. He served for nearly two decades each in the Massachusetts House and Senate, as well as being chosen as President of the National Conference of State Legislatures. He also served in Washington, DC as Associate Director of FEMA in the Clinton Administration and as a Presidential Elector in 1992. A former college administrator and adjunct assistant professor of government at Bentley University and Bridgewater State University, Mr. Moore is a long-time member of ASPA serving terms as Massachusetts Chapter President and National Council member. He was the lead Senate author of the landmark Massachusetts Health Care Reform law (2006) and of the Massachusetts Health Care Cost Containment law (2012).

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