CMA Alert | October 21, 2022

CMA Report | Privatization of County-Owned Nursing Facilities is Not Good for Residents, Staff, or States

In a May 1, 1998 report entitled “Nursing Home Privatization: What Is the Human Cost?”[1] the Pennsylvania-based Keystone Research Center found that privatization of seven county-owned nursing facilities in Pennsylvania, or even the attempted privatization of those facilities, led to reductions in staffing, shortages of medical and resident care supplies, and reduced quality of care for residents.  The arguments made in support of privatization – that county facilities cost too much money and that turning public facilities over to private, usually for-profit entities can save money while preserving or improving nursing home quality – are not realized.  To the contrary, private for-profit owners typically drastically cut staffing, leading to dramatic declines in quality of care for residents.  Often, the private owners reap large profits.  Despite these results, privatization continues, in Pennsylvania and other states, with the same arguments in favor of privatization and the same negative outcomes for residents and staff.

A recent example is a county-owned facility in Beaver County, Pennsylvania, now called Brighton Rehabilitation and Wellness Center.  Once the facility was sold to private owners in 2013, the new owners changed both the facility’s admissions practices (reducing its less profitable Medicaid census) and its staffing practices (substantially reducing staffing levels).  It also increased profits for its owners through related-party transactions, paying the owners’ companies increasingly high rents and management fees.  During the coronavirus pandemic, hundreds of residents and staff members became infected with COVID-19 and many died.  The facility was identified as one of the worst-performing facilities in the country, becoming a candidate for the Special Focus Facility (SFF)[2] program in February 2018 and an SFF in 2021.  During the coronavirus pandemic, the state appointed a temporary manager at Brighton, federal and state investigators executed search warrants at the facility, and the state Attorney General confirmed an ongoing criminal investigation at the facility.

Although not all counties own and operate nursing facilities, the National Association of Counties reported in June 2020 that, nationwide, counties own and operate 449 nursing facilities and directly support 758 facilities.[3]  The Center for Medicare Advocacy releases a report today discussing the sales of county facilities in Pennsylvania, Illinois, and New York to private owners.

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[1] Keystone Research Center, “Nursing Home Privatization: What Is the Human Cost?” (May 1, 1998), https://www.keystoneresearch.org/sites/default/files/krc_nursing_home_priv.pdf 
[2] The Special Focus Facility program identifies nursing facilities that have more problems than other facilities, more serious problems than other facilities, and a pattern of serious problems over a long period of time (three years).  They have additional standard surveys each year and “progressive enforcement.”  The Centers for Medicare & Medicaid Services names 88 facilities at a time as SFFs and identifies another 400+ “candidate” facilities that meet the criteria for the program.  https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/CertificationandComplianc/Downloads/SFFList.pdf 
[3] National Association of Counties, NACo Brief: Nursing Homes & Covid-19, p. 3 (Jun. 2020), https://www.naco.org/sites/default/files/documents/Nursing%20Homes%20and%20COVID-19_v5_06.19.20.pdf

COVID Delays Cause Inequities in Cancer Outcomes

A recent Washington Post article calls attention to another tragic Covid-19 related health disparity: delayed cancer screenings during the pandemic have exacerbated health inequities in cancer outcomes for communities of color. The article, “Covid and cancer: A dangerous combination, especially for people of color: Doctors say people in low-income communities are showing up with advanced cancers because of pandemic-caused delays in diagnosis and treatment,” described this concerning trend. Not only were cancer outcomes worse among Black cancer patients than among White patients prior to the pandemic, but communities of color have also seen a higher burden of illness from COVID-19. This article highlights the troubling additional disparity:

Covid and cancer are a menacing mix — for everyone, but especially for people of color from low-income communities. African Americans and Hispanics are about twice as likely as White people to die of covid, according to the Centers for Disease Control and Prevention. Black cancer patients are at particularly high risk for complications and hospitalizations. Even before the pandemic, Black people had lower survival rates for many cancers compared with White people.

Now, with the pandemic grinding on, many doctors fear those inequalities will worsen. “Covid put cancer and health-care disparities on steroids,” [Oncologist featured in the article, Dr. Kashyap] Patel said as he walked through his clinic, offering patients words of encouragement.

“I have never seen this many people presenting at Stage 3 and 4.” (links in original)

The article discussed that some hospitals are stressing at home testing options and hiring more community health nurses in order to improve access to screenings outside of hospitals and medical offices.

The Center for Medicare Advocacy continues to spotlight disparities in care, treatment and outcomes in order to recognize these concerns and strive for solutions. The Center for Medicare Advocacy underscores our commitment to developing and supporting policy proposals that mitigate and eliminate disparities.

Study | Black Nursing Home Residents Disproportionately (and Incorrectly) Diagnosed with Schizophrenia

The COVID-19 pandemic highlighted deeply rooted racial and ethnic health disparities nationwide[1] – particularly within the walls of U.S. nursing homes. Nursing homes with a larger proportion of Black and Hispanic residents reported more deaths and more severe COVID outbreaks.[2] A study recently published in the Journal of the American Geriatrics Society, sheds light on additional potential ramifications of structural and systemic racial and ethnic inequalities in nursing homes.

The study examined whether the Centers for Medicare & Medicaid Services’ (CMS) National Partnership to Improve Dementia Care in Nursing Homes (National Partnership) – an example of a “colorblind” policy – produced any unintended consequences for long-stay nursing home residents regarding schizophrenia. By examining Minimum Data Set 3.0 between 2011 and 2015, researchers concluded that Black nursing home residents with Alzheimer’s disease and related dementias (ADRD) were more likely to be diagnosed with schizophrenia compared to nonblack residents. In fact, schizophrenia rates increased during the period of the study only for Black residents with ADRD.[3]

The National Partnership, according to CMS, is focused on improving quality of care for individuals with dementia living in nursing homes.[4] Researchers note the partnership was also a federal response to potentially inappropriate use of antipsychotics in nursing homes. Historically (and still today), antipsychotics have been misused by nursing homes to treat the behavioral and psychological symptoms of dementia.

Researchers underscored that “colorblind racism” is a new form of racism that can be portrayed through the creation of policies that do not account for the existence of structural systems that have disadvantaged vulnerable populations, such as Black nursing home residents. Such policies could further exacerbate existing health inequalities. In a conversation with the Center for Medicare Advocacy, the article’s lead author, Dr. Shekinah Fashaw-Walters, suggested that an alternative approach to “colorblind” policies, would be “color-conscious” policies – policies that recognize structural inequities and account for their influences on vulnerable populations and health. Being “color-conscious”, Dr. Fashaw-Walters holds, would support the inclusive improvement of quality of care for all nursing home residents.

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[1] CDC. COVID-19 Racial and Ethnic Disparities. (Dec. 10, 2020). Available at: https://www.cdc.gov/coronavirus/2019-ncov/community/health-equity/racial-ethnic-disparities/index.html  
[2] Neuman, T. & Chidambaram, P. Racial and Ethnic Disparities in COVID-19 Cases and Deaths in Nursing Homes. KFF. (Oct. 27, 2020). Available at: https://www.kff.org/coronavirus-covid-19/issue-brief/racial-and-ethnic-disparities-in-covid-19-cases-and-deaths-in-nursing-homes/ 
[3] Fashaw‐Walters, S. A., McCreedy, E., Bynum, J. P., Thomas, K. S., & Shireman, T. I. “Disproportionate increases in schizophrenia diagnoses among black nursing home residents with ADRD.” Journal of the American Geriatrics Society. (Sept. 30, 2021). Available at: https://agsjournals.onlinelibrary.wiley.com/doi/10.1111/jgs.17464 
[4] CMS. National Partnership to Improve Dementia Care in Nursing Homes. (n.d.).  Available at: https://www.cms.gov/Medicare/Provider-Enrollment-and-Certification/SurveyCertificationGenInfo/National-Partnership-to-Improve-Dementia-Care-in-Nursing-Homes

8th Circuit Court of Appeals Upholds Trump Administration’s Regulation Permitting Pre-Dispute Arbitration Agreements in Nursing Home Admissions Contracts

The Obama Administration prohibited pre-dispute arbitration agreements in nursing home admissions contracts in final rules published in October 2016, 81 Fed. Reg. 68688 (Oct. 4, 2016).  Nursing facilities sued, American Health Care Association v. Burwell, 217 F. Supp. 3d 921, 926 (N.D. Miss. 2016), and the rule was never implemented. 

Final federal regulations promulgated by the Trump Administration on July 18, 2019, 84 Fed. Reg. 34718, and codified at 42 C.F.R. §483.70(n), allow nursing facilities to use binding arbitration agreements in nursing home admissions contracts, with certain resident protections, including the right to rescind the agreement within 30 calendar days of signing it. 

Northport Health Services of Arkansas and other nursing facilities filed a lawsuit on September 4, 2019, challenging multiple provisions of the final rules, including the right of rescission.  In a summary judgment decision on April 7, 2020, the district court upheld the rule, holding that it

1. Did not violate the Federal Arbitration Act (FAA), 9 U.S.C. §1 et seq.,
2. Was a permissible exercise of the Department of Health and Human Services’ authority under the Medicare and Medicaid statutes,
3. Was not arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. §706; and,
4. Was promulgated in compliance with the Regulatory Flexibility Act, 5 U.S.C. §601 et seq.

Northport Health Services of Arkansas v. United States Department of Health and Human Services, Case No. 5:19-CV-5168 (W.D. Ark., Apr. 7, 2020).

Northport “revives” the same four legal challenges to the 2019 rule that it made in the district court. The 8^th Circuit Court of Appeals rejected all of them in an October 1, 2021 decision.  Northport Health Services of Arkansas, LLC et al v. U.S. Department of Health and Human Services, No. 20-1799 (8^th Cir. Oct. 1, 2021). To read the 8^th Circuit decision, go to https://ecf.ca8.uscourts.gov/opndir/21/10/201799P.pdf

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