Holding Nursing Homes Accountable Amid COVID

Nursing home residents are among the most vulnerable members of our communities and the most susceptible to illnesses like COVID-19. While these residents comprise just 1.2% of our country’s population, recent reporting shows they account for approximately 40% of COVID-19 deaths. The danger that poor infection control practices in nursing homes presents to tens of thousands of our fellow citizens is nothing new.  
In an analysis from the Centers for Medicare and Medicaid Services (CMS), 82% of nursing homes across the country were cited for infection control problems between 2013 and 2017. Half were repeat offenders. Lack of consistent handwashing and infrequent disinfection of common areas were chief culprits. Such failures allowed illness like seasonal flu to sweep across numerous facilities. The statistics on COVID-19 infection and death rates in nursing homes illustrate the dangers to residents created by poor infection control practices.  
Traditionally, there are three avenues of protection from harm for nursing home residents – (1) state level inspections and regulation required by CMS, (2) visits by family members and (3) civil liability in cases of neglect, resulting in injury and/or death. Each of these layers of protection have significantly eroded in recent months.
For years, limited corrective tools such as small fines and written citations available to nursing home regulators have offered some protection to nursing home residents. However, routine facility inspections have largely been suspended since early 2020, as facilities remained closed to all outside visitors. This means that inspections meant to address non-COVID-19 dangers (e.g., falls, dehydration, malnutrition) have not been occurring. CMS only announced in late August that these inspections would soon resume.  
COVID-19 has also created a greater risk to nursing home residents because of the limitations on in-person visits from loved ones. In-person visits to nursing home residents has always played a vital role in protecting them from harms, such as malnutrition, dehydration, bedsores and acute events like falls. When family members visit nursing homes regularly, they can recognize and express concerns to facility staff. While the restrictions on in-person visits are a necessary part of fighting the spread of COVID-19, it leaves nursing home residents more vulnerable to a multitude of avoidable injuries, illness and death.    
In 2016, federal spending on nursing homes was $57 billion, almost $20 billion more than what was spent on foreign aid in the same year. According to a recent New York Times article, approximately 70% of nursing homes in the U.S. are for-profit enterprises. The American Health Care Association, the largest lobbying group for the industry, spent $3.84 million in 2019 in its push to further loosen safety regulations and reduce the industry’s legal liability. The effort to limit accountability for these for-profit enterprises receiving our federal tax dollars has been ongoing for several years. Unfortunately, the COVID-19 pandemic has been an opportunity for the industry to make significant progress toward less accountability. 
The limitation, and in some instances, elimination, of civil liability for nursing homes (and their owners) leaves one remaining avenue for all of us to take action to protect these vulnerable members of our society and ensure the best use of our tax dollars – the ballot box. 
This column originally appeared in the Memphis Business Journal.