The Centers for Medicare & Medicaid Services (CMS) Coronavirus Commission for Safety and Quality in Nursing Homes, whose formation was announced in late April, has issued its final report. The Report identifies 27 recommendations and more than 100 action steps that are organized into 10 themes. The recommendations address testing and screening, equipment and personal protective equipment, cohorting, visitation, communication, workforce ecosystem, workforce system, technical assistance and quality improvement, facilities, and data. Eleven of the Commission’s 25 members express reservations about one or more of the recommendations. Eric Carlson of Justice in Aging dissents from the entire Report, finding that it fails to address enforcement issues, facility responsibility, and alternatives to nursing facilities. CMS states that the Report validates the federal response to the coronavirus pandemic, issuing a point-by-point comparison of the Commission’s recommendations and the agency’s actions.
The Center for Medicare Advocacy considers the Report too generous to nursing facilities and the federal government. The Report essentially treats nursing facilities as having no responsibility for the tens of thousands of resident and staff deaths. Facilities are not blameless when research studies document that facilities with better staffing levels have fewer cases and fewer deaths; when some facilities have successfully contained COVID-19 and limited its spread; and when some facilities have never had any COVID-19 cases at all.
The Report also fails to fault the lack of federal direction and accountability, both before and during the pandemic. As the Government Accountability Office reported in May 2020, the federal government has rarely imposed any penalties against facilities for their “widespread” and “persistent” failures for years before the pandemic to follow essential infection control practices. Such limited enforcement signals that infection control does not matter. During the pandemic, the federal government has largely taken a hands-off approach. After waiving long-standing federal protections for residents, it left states and facilities on their own to respond to the nationwide crisis – to figure out appropriate practices, to get and require testing of residents and staff, and to get and use personal protective equipment. CMS has largely made recommendations and issued guidance, but imposed few enforceable requirements. CMS did not even require facilities to conduct essential testing of residents and staff until September 2, 2020, more than six months after the COVID-19 outbreak in a Seattle, Washington nursing facility.
The report understandably focuses on the immediate issue of COVID-19, but it does not tackle the longer term changes to the nursing home system that are needed to try to prevent the tremendous suffering the pandemic has caused and could cause again in the future. Important changes going forward must include:
- Ensuring an appropriate workforce (sufficient numbers, better training, better compensation and benefits);
- Strengthening the nursing home enforcement system;
- Establishing (and enforcing), meaningful state and federal standards regarding eligibility to operate a nursing home and receive federal reimbursement; and
- Enhanced accountability for the public reimbursement that facilities receive (including enactment of a medical loss ratio to ensure that a certain specified portion of reimbursement is actually spent on resident care).
September 17, 2020 – T. Edelman
 CMS, “CMS Announces Independent Commission to Address Safety and Quality in Nursing Homes” (Press Release, Apr. 30, 2020), https://www.cms.gov/files/document/coronavirus-commission-safety-and-quality-nursing-homes.pdf.
 Commission Final Report (Sep. 2020), https://sites.mitre.org/nhcovidcomm/wp-content/uploads/sites/14/2020/09/FINAL-REPORT-of-NH-Commission-Public-Release-Case-20-2378.pdf.
 Justice in Aging, “Imbalanced Commission Report Does Not Do Enough to Make Nursing Homes Responsible for Resident Safety and Quality of Life” (Sep. 2020), https://justiceinaging.org/wp-content/uploads/2020/09/Comments-on-NH-Revision.pdf?eType=EmailBlastContent&eId=ad152486-1209-4898-a7f7-4ccedc9ebed6.
 CMS, “Independent Nursing Home COVID-19 Commission Findings Validate Unprecedented Federal Response” (Press Release, Sep. 16, 2020), https://www.cms.gov/newsroom/press-releases/independent-nursing-home-covid-19-commission-findings-validate-unprecedented-federal-response.
 CMS, “Comparison: Trump Administration Actions and Commission Recommendations,” https://edit.cms.gov/files/document/covid-independent-nursing-home-covid-19-federal-response.pdf.
 CMA, “Studies Find Higher Nurse Staffing Levels in Nursing Facilities Are Correlated With Better Containment Of Covid-19” (CMA Alert, Aug. 13, 2020), https://medicareadvocacy.org/studies-find-higher-nurse-staffing-levels-in-nursing-facilities-are-correlated-with-better-containment-of-covid-19/; CMA, “Nursing Facilities Owned By Private Equity Firms Have Higher Rates of Covid Infections than Other Facilities” (CMA Alert, Aug. 13, 2020), https://medicareadvocacy.org/nursing-facilities-owned-by-private-equity-firms-have-higher-rates-of-covid-infections-than-other-facilities/.
 Government Accountability Office, Infection Control Deficiencies Were Widespread and Persistent in Nursing Homes Prior to COVID-19 Pandemic, GAO-20-576R (May 20 , 2020), https://www.gao.gov/products/GAO-20-576R.
 CMS, “Medicare and Medicaid Programs, Clinical Laboratory Amendments (CLIA), and Patient Protection and Affordable Care Act; Additional Policy and Regulatory Revisions in Response to the COVID-19 Public Health Emergency,” CMS-3401-IFC, 85 Fed. Reg. 54,820 (Sep. 2, 2020), https://www.govinfo.gov/content/pkg/FR-2020-09-02/pdf/2020-19150.pdf.