Center for Medicare Advocacy

Advancing Access to Medicare and Healthcare

CMA Alert | May 21, 2020

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  1. State Attorneys General Open Criminal Investigations of Nursing Facilities in Light of the Pandemic; For Regulatory Agencies, Business As Usual
  2. GAO on Infection Control Deficiencies in Nursing Facilities Before Covid-19 Pandemic: “Widespread,” “Persistent,” “Ignored”
  3. Research: Low-Income and Communities of Color at Increased Increased Risk From COVID-19
  4. Elder Justice Newsletter, Vol. 2 Issue 9 Now Available
  5. Recorded Webinars – Advocating for Nursing Home Residents
  6. Free Webinar: Medicare Administrative Law Judge Hearing Advocacy Tips

State Attorneys General Open Criminal Investigations of Nursing Facilities in Light of the Pandemic; For Regulatory Agencies, Business As Usual

Even as many states grant immunity from civil liability to nursing facilities for harm and death resulting from the coronavirus pandemic,[1] at least two state Attorneys General have announced that their offices have opened criminal investigations into nursing facilities. For regulatory agencies, however, it appears to be business as usual.

Attorneys General Investigating

New Jersey Attorney General Gurbir Grewal told NPR’s All Things Considered that his office is looking into nursing facilities where residents died of coronavirus,[2] including a facility that was reported to have mishandled the bodies of 17 residents who had died.[3] Grewal described various theories of liability that the state might pursue: “consumer fraud to criminal homicide to criminal or civil false claims to regulatory violations. If people cut corners, if they put profits over patients, if they weren’t adequately staffed, if there was some degree of negligence.”  

On May 12, 2020, Pennsylvania Attorney General Josh Shapiro similarly announced that “over the past several weeks his office opened criminal investigations into several Pennsylvania nursing homes.”[4] Shapiro indicated that the Care-Dependent Neglect Team in the state’s Medicaid Fraud Control Section of the Attorney General’s office “has jurisdiction on matters of criminal neglect.”

Lack of Regulatory Action

Unfortunately, regulatory agencies seem to be viewing noncompliance with infection prevention and control requirements as business in usual. Three examples illustrate this concern.

First, as the Center for Medicare Advocacy recently reported, surveyors are either not identifying infection control deficiencies at all or are generally classifying them as “no harm,” even when multiple staff members make multiple errors in infection prevention and control.[5]  Skilled Nursing News reported that CMS told providers that state surveyors had visited 6800 nursing facilities (44% of all facilities nationwide) and found “‘sporadic noncompliance’” in “hand hygiene, proper use of personal protective equipment, and cohorting”[6] – the same types of deficiencies that the Center identified in the 171 surveys we reviewed.

Second, in a lengthy investigative report on Life Care Centers of America, whose Seattle facility was the first nursing home with COVID-19, The Washington Post reported that surveyors found no infection control deficiencies at a Life Care Center in Massachusetts in an April 10 survey focused of infection prevention and control.[7]  However, the Post reports, staff at the facility described “no time to wash their hands, change soiled linens, or help immobile patients get out of bed. One nursing aide said she found herself caring for 30 patients at once, helping them into bathrooms with filthy toilets or out of beds soaked in urine.” At the time of the April infection prevention and control survey, “dozens of people were infected and about 10 had died.”

Finally, the New Jersey nursing facility where residents’ bodies were found was cited with immediate jeopardy and the Centers for Medicare & Medicaid Services (CMS) imposed a civil money penalty (CMP) of $14,565 for 15 days (April 6-20, 2020), totaling $220,000. However, CMS’s letter to the facility describing the deficiencies and penalties also indicates that once jeopardy was removed, and beginning April 21, the CMP was reduced to $110 per day (the lowest permissible CMP).[8]  

Conclusion

Under federal law, state survey agencies have the primary responsibility for ensuring that residents receive the care they need. States are taking note of chronic deficiencies, as indicated by the action of the Attorneys General above, but serious care problems are neither new nor just COVID-related. These deficiencies have occurred for decades, with few repercussions. It remains the responsibility of regulatory agencies to accurately cite and classify deficiencies and to impose effective sanctions. Monetary penalties are often the most effective deterrent for profit-motivated nursing facility owners, and they must be used.

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[1] See CMA, “Special Report: Nursing Home Industry Seeks Immunity During COVID Crisis; States Are Obliging” (May 14, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/05/Special-Report-Nursing-Home-Immunity.pdf.
[2] Maureen Pao, Ailsa Change, “New Jersey Investigates State’s Nursing Homes, Hotbed of COVID-19 Fatalities” (May 11, 2020), https://www.npr.org/sections/coronavirus-live-updates/2020/05/11/854063582/new-jersey-investigates-states-nursing-homes-hotbed-of-covid-19-fatalities.
[3] Tracey Tully and Matthew Goldstein, “Report Paints Scathing Picture of Nursing Home Where 17 Bodies Piled Up,” The New York Times (May 7, 2020), https://www.nytimes.com/2020/05/07/nyregion/coronavirus-nj-nursing-home-andover.html.
[4] Attorney General Josh Shapiro, “AG Shapiro: We Are Investigating Pennsylvania Nursing Homes for Criminal Neglect” (Press Release, May 12, 2020), https://www.attorneygeneral.gov/taking-action/covid-19/ag-shapiro-we-are-investigating-pennsylvania-nursing-homes-for-criminal-neglect/. 
[5] CMA, “Special Report: Infection Control Surveys at Nursing Facilities: It Looks Like Business as Usual” (May 7, 2020), https://medicareadvocacy.org/wp-content/uploads/2020/05/Special-Report-Infection-Control-5-7-2020.pdf.
[6] Alex Spanko, “Verma Praises Nursing home Staff for ‘Amazing Job,’ But Surveys Find Lingering Infection Control Problems,” Skilled Nursing News (May 13, 2020), https://skillednursingnews.com/2020/05/verma-praises-nursing-home-staff-for-amazing-job-but-surveys-find-lingering-infection-control-problems/.
[7] Debbie Cenziper,   Sidnee King, Shawn Mulcahy, and Joel Jacobs “Nursing homes violate federal disease standards,” The Washington Post (May 17, 2020), https://www.washingtonpost.com/investigations/major-nursing-home-chain-violated-patient-care-infection-control-standards-before–and-after–pandemic-started-records-show/2020/05/16/f407c092-90b1-11ea-a0bc-4e9ad4866d21_story.html.
[8] https://gottheimer.house.gov/uploadedfiles/andover_subacute_and_rehab_ii_4-21-20_-_ic_covid19_surveys_-cmp.pdf.

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    GAO on Infection Control Deficiencies in Nursing Facilities Before Covid-19 Pandemic: “Widespread,” “Persistent,” “Ignored”

    In “Infection Control Deficiencies Were Widespread and Persistent in Nursing Homes Prior to COVID-19 Pandemic,”[1] the Government Accountability Office (GAO) reports that 82% of nursing facilities nationwide were cited with infection control deficiencies in one or more years between 2013 and 2017, with 48% of facilities cited in multiple years during the five-year period. Moreover, for 99% of these deficiencies, which were cited by surveyors as not causing residents any harm, the Centers for Medicare & Medicaid Services (CMS) did not impose any financial penalty. The GAO also reports that infection control deficiencies were more common in for-profit nursing facilities and that facilities with overall ratings of five stars on CMS’s five-star rating system had fewer infection control deficiencies.

    The GAO plans “to examine CMS guidance and oversight of infection prevention and control in a future GAO report, including the classification of infection prevention and control deficiencies.”[2]

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    [1] GAO-20-576R (May 20, 2020), https://www.gao.gov/assets/710/707069.pdf. to examine CMS guidance and oversight of infection prevention and control in a future GAO report, including the classification of infection prevention and control deficiencies.
    [2] GAO, Infection Control Deficiencies Were Widespread and Persistent in Nursing Homes Prior to COVID-19 Pandemic (Highlights), https://www.gao.gov/products/GAO-20-576R.

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      Research: Low-Income and Communities of Color at Increased Increased Risk From COVID-19

      Low-income, dually eligible beneficiaries, and health disparities based on racial inequalities and socio-economic factors, are central to the policy and advocacy work at the Center for Medicare Advocacy. These areas of concern are particularly important now, due to early COVID-19 research and data showing the correlation between low incomes, communities of color and risks of illness and severity of illness, for and following infection with COVID-19.

      We highlight these issues and related resources to help call attention to the ongoing, harmful health disparities exposed by the pandemic. The data regarding the disparate impact from the COVID crisis is striking and calls out for change.

      Some resources:

      The Center for Medicare Advocacy will write more about these issues during the coming weeks.

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        Elder Justice Newsletter, Vol. 2 Issue 9 Now Available

        Elder Justice: What “No Harm” Really Means for Residents is a newsletter published by the Center for Medicare Advocacy and the Long Term Care Community Coalition. The purpose of the newsletter is to provide residents, families, friends, and advocates information on what exactly a “no harm” deficiency is and what it means for nursing home residents. Our latest issue has real stories from nursing homes in New York, Michigan, New Jersey, and Ohio.

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        Webinars – Advocating for Nursing Home Residents 

        Featuring Center for Medicare Advocacy Senior Policy Attorney Toby S. Edelman.

        Advocating for Nursing Home Residents – Joint webinars with Consumer Voice, Center for Medicare Advocacy, Long Term Care Community Coalition, and Justice in Aging.

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        Webinar: Medicare Administrative Law Judge Hearing Advocacy Tips 

        June 3, 2020 – 2:00 PM EDT

        Hosted by the National Center on Law and Elder Rights, and presented by Center for Medicare Advocacy Attorneys Mary Ashkar and Paul Grabowski, this free webinar will provide practical tips and checklists to help attorneys maximize their preparedness for an ALJ hearing.