Early on in the coronavirus pandemic, public health experts were concerned about the need to keep beds in acute care hospitals available for patients with acute care needs. At the same time, experts recognized that grouping patients by their COVID status – whether they were positive, negative, or status unknown – could be a better way of caring for nursing facility residents leaving the hospital, rather than commingling all residents, without regard to their COVID status. The two concerns came together with the concept of COVID-only nursing facilities. The Centers for Medicare & Medicaid Services (CMS) appeared to support the concept by waiving regulations to allow the temporary use of buildings as skilled nursing facilities (waiving requirements under 42 C.F.R. §483.90) and by waiving rules limiting transfers and discharges if the purpose was cohorting residents.
In an Alert published in early April, the Center for Medicare Advocacy (the Center) urged that hospitals discharge patients only to nursing facilities that could provide appropriate care to residents. The Center identified appropriate facilities, in priority order; proposed additional requirements for COVID-19-only facilities; and identified factors that should exclude facilities from being designated COVID-only facilities. An early blog post in Health Affairs similarly proposed standards for designating COVID-only facilities based on five factors, including nursing hours per patient day.
These standards were not adopted.
There are, in fact, no federal standards for COVID-only nursing facilities. Federal legislation that would create standards, H.R. 6800, the Heroes Act, passed the House in May. Section §30208 of the Heroes Act, COVID-19 Skilled Nursing Facility Payment Incentive Program, requires the Secretary of the Department of Health and Human Services to establish a designation program for COVID-only treatment centers, with standards for participation as well as incentive payments for such facilities. The requirements include a star rating of four or five (on a five-point scale) in staffing and health inspections for two years; no deficiency at the immediate jeopardy level; and other requirements mandated by the Secretary. The Senate has not considered the Heroes Act. Other federal bills to create standards for COVID-19-only facilities also remain stalled.
States have not done better, largely accepting volunteers. Many facilities that volunteered to be COVID-only facilities had empty beds, often because of the poor care they provided. States have generally not imposed any requirements on the volunteers they select (although they have increased reimbursement for them). As a result, many COVID-19-only facilities have extremely poor records; some are even Special Focus Facilities or SFF candidates. Moreover, rather than approving entirely new facilities for COVID-19-positive residents, as the Center suggested in April in its priority listing, states have largely used existing nursing facilities, allowing them to discharge current residents to make rooms available for new COVID-19-positive individuals. States have also designated wings and floors in nursing facilities as COVID-only, rather than entire buildings, which also has the effect of watering down the concept of COVID-only facilities.
Politico reported in early June that the pandemic created “a perverse financial incentive for nursing homes with bad track records to bring in sick patients,” with states offering “double or more the funding of other residents” if they would admit COVID-19 patients. As shown below, that early reporting has continued to be borne out across many states.
This Report looks at federal and state policies involving COVID-only facilities and the records of COVID-19-only facilities. Criticisms of poor implementation of a good idea have recently begun to lead to some important changes.
CMS issued some guidance and recommendations for cohorting patients based on COVID-19 status, but it has not imposed any requirements. On April 2, 2020, CMS suggested that facilities “work with State and local leaders to designate separate facilities or units within a facility to separate COVID-19 negative residents from COVID-19 positive residents and individuals with unknown COVID-19 status.” Although CMS indicated that some COVID-19 positive facilities might need “the capacity, staffing, and infrastructure to manage higher intensity patients, including ventilator management,” it did not require that such facilities meet any additional standards, or even existing standards for all nursing facilities.
Guidance from the Centers for Disease Control and Prevention (CDC), updated April 30, 2020, recommends creating a physically separate unit, assigning dedicated staff, ensuring that staff is trained on infection prevention measures, optimizing the supply of personal protective equipment, and assigning dedicated resident care equipment to any unit. CDC’s recommendations are not enforceable requirements.
As shown below, states using a COVID-19-only model have not been effective in ensuring that facilities they select are likely to provide good care to residents. States also backed off on using entirely separate facilities, generally choosing, instead, to allow facilities to have COVID-19- only wings in existing facilities. This decision led to disruption of residents who were transferred out of their facilities to make rooms available for new COVID-19-positive individuals.
A sampling of states’ experiences paints a disturbing picture.
The first state creating a COVID-only facility was Massachusetts and its plan got off to a rocky start. The first nursing facility to convert itself into a COVID-19-only facility in late March abruptly relocated residents to facilities under common ownership and other nearby facilities. Families were notified only by a video on the facility’s website. Twenty-four hours later, many adult children did not know where their parents were.
Following significant advocacy by Massachusetts Advocates for Nursing Home Reform (MANHR) and other organizations about the harmful effects of moving residents from existing facilities to create COVID-only facilities, Massachusetts changed its policy to limit COVID-only facilities to new facilities.
However, Massachusetts continued to authorize facilities to admit COVID-19-positive patients to wings of existing facilities. MANHR found that many of the facilities were poor quality. Comparing 84 COVID-19 Dedicated Nursing Facilities with an Isolation Unit as of May 1, 2020 to a March 1, 2020 Nursing Home Care database, MANHR found:
- 45, or 53%, of the COVID-19 Dedicated Nursing Facilities receive the lowest overall ratings on Nursing Home Compare — 1 and 2 stars.
- 47, or 56%, of the COVID-19 Dedicated Nursing Facilities receive the lowest Health Inspection ratings on Nursing Home Compare — 1 and 2 stars.
- 1 facility is a Special Focus Facility and 7 have been named as Special Focus Facility Candidates.
- 8 facilities have a red alert abuse icon: 5 are either a Special Focus Facility or Candidate, and 3 are “regular” facilities ( 1 – 1*facility; 1 – 2*facility; 1 – 3*facility)
- As of 5/1, 52, or 62%, of COVID-19 Dedicated Nursing Facilities have >30 of their nursing home residents diagnosed with COVID-19.
Connecticut selected four nursing facilities, all managed by Athena Health Care Systems, to provide care for COVID-19-positive residents. Two vacant facilities would be dedicated solely to COVID-19-positive residents and two occupied facilities would dedicate a floor to COVID-19-positive residents. Both occupied facilities had staffing ratings and overall ratings of three stars.
The first COVID-only facility designated by Los Angeles County, California was Country Villa South, an 87-bed facility managed by Rockport Health Services. As of late April, the one-star facility had had a COVID outbreak, with 81 residents and staff testing positive and ten deaths. In March, a former employee sued Rockport, alleging that she was fired for refusing to discharge Medicaid residents to make rooms available for residents with higher reimbursement rates. The Los Angeles Times cited a letter from a Rockport executive to health insurers stating that the company would admit COVID patients for $850 per day.
Florida’s Agency for Health Care Administration identified 23 regional COVID-19 Isolation Centers (or units), as of July 31. The Palm Beach Post reported in September that seven of the 23 isolation centers were on the state’s “watch list” of troubled facilities; one isolation center had only a conditional license; two isolation centers were part of Consulate Health Care, the state’s largest nursing home chain (against which a $250,000,000 judgment for defrauding the government was upheld by an appeals court in July); and ten isolation centers “failed quality assurance checks that verified COVID data submitted by the nursing homes to the Centers for Disease Control and Prevention,” among other infection control and financial issues identified at the isolation centers. The state paid isolation centers $325 per day for each Medicaid resident (about $17,000 per month), in addition to the normal reimbursement rate averaging $240 per day. The state discontinued the isolation center program, effective October 1.
By Executive Order 2020-50 (April 15, 2020), Michigan established COVID-only facilities called Hubs. By May 28, the state had designated 21 regional hubs. Politico reported in June that eight of 20 facilities selected as hubs with dedicated wings had federal ratings of one star or two stars and one facility, Medilodge of Grand Blanc, had been identified as a Special Focus Facility for 13 months. In August, WUOM.FM reported that 20 of the 21 hubs had been cited with infection control deficiencies in the prior four years and that four of them had been cited in the weeks before their designation. Hub facilities were cited with more deficiencies in 2019 than the average facility and two of them had been cited with abuse.
On April 10, New Mexico announced that nursing home residents who test positive for COVID-19 would be transferred to Canyon Transitional Rehabilitation Center, which is owned by Genesis Healthcare. As reported in the Santa Fe New Mexican, the one-star facility had a poor “history of sometimes life-threatening health and safety violations.” The facility was cited with twice as many deficiencies as other nursing facilities in the state. The article reports:
In May 2018, inspectors arrived at Canyon to discover an elderly man with a known history of respiratory problems gasping for air as his legs turned blue from a dangerous drop in oxygen. The nursing home, which at the time was understaffed by 18 positions, had no protocol for responding to such an emergency.
Genesis’ 25 New Mexico nursing facilities had been cited with nearly 1,000 violations of health and safety requirements, including “catheter tubes lying on the floor; employees reusing dirty syringes; and the dealing of illegal drugs.” As a result of infection control deficiencies, “residents had developed gangrene or had limbs amputated from untreated wounds.”
The state was in the process of negotiating a rate of $600 per patient per day “in addition to high-tier reimbursements from Medicare.”
New Jersey made license agreements with three large nursing home chains to establish COVID-19-only facilities. One of the companies was CAREOne, a nursing home chain with 55 facilities in six states. The agreement was for CAREOne to provide care to more than 700 residents at five of its nursing facilities. ProPublica reported, “The death rate at the company’s New Jersey homes is more than 60% higher than the rate for all homes statewide.” ProPublica’s analysis found that, as of July 10, CAREOne’s New Jersey nursing facilities had an infection rate of 56%, compared to the 38% rate statewide, and that its facilities had a death rate of 17% of its certified beds, compared to the statewide death rate of 10%.
The two facilities selected by Rhode Island as COVID-only facilities have poor records of care. The state paid each facility $8,250 per day (meaning $503,000 for one facility and $643,000 for the other by the end of June), using federal stimulus money.
Criticism and Change
An hearing by the Michigan COVID-19 Oversight Committee criticized the state’s use of one-star facilities as “hubs” and heard recommendations from the Michigan Nursing Homes COVID-9 Preparedness Task Force. The Task Force’s August 31, 2020 report includes four recommendations about the placement of residents. The report recommends that the state identify criteria and procedures for approving facilities as Care and Recovery Centers (CRCs). The Task Force recommends that the state’s designation process include consideration of a facility’s “quality and survey history,” an on-site review, dedicated staff, “an appropriate, adequate, and consistent supply of PPE;” “participation in weekly monitoring calls” with the Department; and “support in implementing infection control protocols and training for all on-site staff from the IPRAT team.” The Task Force further recommends that COVID-19-positive patients be admitted to nursing facilities not designated as CRCs only in “exceptional circumstances” and only when these facilities meet designated criteria related, including meeting or exceeding CMS/CDC guidelines and receiving at least two stars for staffing on CMS’s website.
Another report about COVID-19 by the Center for Health and Research Transformation (CHRT) at the University of Michigan finds that Michigan’s hub strategy, established April 15, was quickly implemented to meet an immediate need. Volunteer facilities were given an upfront payment of $5,000 and $200 per occupied bed, on top of any other reimbursement. Describing free-standing facilities as not the preferred approach because of cost and availability, CHRT recommends a replacement strategy with more detailed selection criteria for hubs, including “demonstrated ability to meet or exceed CMS/CDC guidelines;” dedicated staff; an “adequate and consistent supply of PPE;” staff training; a score of at least three stars in staffing on CMS’s rating system, and more. CHRT also recommends, for hubs, a strengthened oversight process, with weekly oversight, additional training for staff, improved data reporting from hubs, and priority status for PPE and training. It also sets out cohorting recommendations for COVID floors or wings/units.
On September 30, Michigan Governor Gretchen Whitmer signed Executive Order No. 2020-191, “Enhanced protections for residents and staff of long-term care facilities during the COVID-19 pandemic.” Replacing Executive Order 2020-179, the new Executive Order identifies care and recovery centers (CRCs) that are designated by the Department. Describing the new Executive Order, Isoco County News Herald reports that designation as a CRC, a “‘second generation’” of care replacing “hubs,” will require a score of three or higher in staffing on CMS’s Five-Star Quality Rating system, meeting performance data, and having an on-site review.
The policy of grouping residents by their COVID-19 status can be effective in ensuring that COVID-19-positive patients (and others) receive appropriate care. Unfortunately, early state efforts relied on nursing facilities to volunteer. Too many volunteer facilities appeared motivated by the enormous financial incentives and were ill-equipped to meet the challenges of COVID-positive residents. The policy of establishing COVID-only facilities can work, but only if facilities or units are required to meet specific standards for designation and if these standards are appropriately enforced. As the pandemic continues, states must identify and enforce appropriate standards.
October 15, 2020 – T. Edelman, M. Edelman
 CMS, “Long Term Care Facilities (Skilled Nursing Facilities and/or Nursing Facilities): CMS Flexibilities to Fight COVID-19” (Mar. 28, 2020), https://www.cms.gov/files/document/covid-long-term-care-facilities.pdf.
 CMA, “Hospitals Should Discharge Patients with Coronavirus Only to Qualified Nursing Homes” (CMA Alert, Apr. 2, 2020), https://medicareadvocacy.org/hospitals-should-discharge-patients-with-coronavirus-only-to-qualified-nursing-homes/.
 We proposed (1) long-term care hospitals or hospital-based SNFs; (2) newly-identified or newly-created special COVID-19-only facilities; and other nursing facilities meeting higher standards and with dedicated COVID-19 wings or units.
 We proposed requiring hospitals to tests patients before discharging patients. We proposed requiring that residents be given private rooms and that skilled nursing facilities have registered nurses on site, 24 hours per day; meet staffing ratios of 1.25 hours per resident day of RN time and 4.5 hours per resident day for all nursing staff; have a full-time infection preventionist on-site full-time; and have sufficient personal protective equipment and supplies.
 We proposed excluding facilities with low nurse staffing levels (one or two stars in either nurse staffing category) or a nurse staffing waiver; Facilities providing poor quality care (Special Focus Facility (SFF) or SFF candidate or otherwise determined by CMS or the state to provide poor quality care); facilities with currently imposed remedies of denial of payment for new admissions or civil money penalties exceeding $5000 for quality of care deficiencies; or facilities that have an abuse icon.
 Leemore Dafny, Steven S. Lee, “Designating Certain Post-Acute Care Facilities As COVID-19 Skilled Care Centers Can Increase Hospital Capacity And Keep Nursing Home Patients Safer,” Health Affairs Blog (Apr. 15, 2020), https://www.healthaffairs.org/do/10.1377/hblog20200414.319963/full/. .
 H.R. 6698, the Quality Care for Nursing Home Residents and Workers During COVID-19 Act of 2020, introduced May 5, 2020, requires designation of COVID-19 facilities that provide services by registered nurses 24 hours per day and meet other criteria specified by the Administrator.
H.R. 6857, the COVID-19-Only Homes Organized for Resident Treatment Act of 2020, or the COHORT Act of 2020, introduced May 13, 2020, includes the provisions of §30208 of H.R. 6800, the Heroes Act.
H.R. 6972, the Nursing Home COVID-19 Protection and Prevention Act of 2020, §2, provides incentive payments for facilities that cohort residents in compliance with guidance issued by the Secretary. S. 3768 is the companion Senate bill.
 Special Focus Facilities (SFFs) are selected by CMS and states. They have more deficiencies than other facilities, their deficiencies are more serious, and their pattern of serious noncompliance has persisted over a long period of time. SFFs have two standard surveys a year. There are currently about 88 SFFs and another 400 “candidates” that meet the criteria but are not identified as SFFs because of a shortage of funding for the program. CMS, “Special Focus Facility (‘SFF’) Program,” https://www.cms.gov/files/document/sff-posting-candidate-list-september-2020.pdf.
 Maggie Severns and Rachel Roubein, “States prod nursing homes to take more Covid-19 patients,” Politico (Jun. 4, 2020), https://www.politico.com/news/2020/06/04/states-nursing-homes-coronavirus-302134.
 CMS, “COVID-19 Long-Term Care Facility Guidance, point 5 (Apr. 2, 2020), https://www.cms.gov/files/document/4220-covid-19-long-term-care-facility-guidance.pdf.
 CDC, “Responding to COVID-19; Considerations for the Public Health Response to COVID-19 in Nursing Homes” (updated Apr. 30, 2020), https://www.cdc.gov/coronavirus/2019-ncov/hcp/nursing-homes-responding.html.
 Robert Weisman and Tim Logan, “Officials are emptying nursing homes across Mass. to create coronavirus recovery centers,” Boston Globe (Mar. 28, 2020), https://www.bostonglobe.com/2020/03/28/metro/officials-emptying-nursing-homes-across-state-create-covid-19-recovery-centers/.
 Robert Weisman, Travis Andersen and Shelley Murphy, “State officials backpedal on plan to move nursing home residents amid pandemic, Governor says new focus is on reopening shuttered facilities,” Boston Globe (Apr. 13, 2020), https://www.bostonglobe.com/2020/04/13/metro/state-officials-backpedal-plan-move-nursing-home-residents-amid-pandemic/.
 Email from Arlene Germain, Policy Director, MANHR, email correspondence with CMA (May 12, 2020).
 Jenna Carlesso, Keith M. Phaneuf, and Gregory B. Hladky, “New state plan for nursing home tests, isolation facilities could have big impact on COVID-19 spread; Nursing home workers, fearing for their lives, call on the state to provide more protective gear,” CtMirror (Apr. 9, 2020), https://ctmirror.org/2020/04/09/state-taps-four-nursing-facilities-to-house-residents-with-coronavirus/.
 Jack Dolan, Brittny Mejia, “Coronavirus patients could be cash cows for nursing homes,” Los Angeles Times (May 3, 2020), https://www.latimes.com/california/story/2020-05-03/coronavirus-nursing-homes-financial-profits. Rockport Healthcare Services is the management company for a troubled nursing home chain, Brius Healthcare Services. Marjie Lundstrom and Phillip Reese, “California’s largest nursing home owner under fire from government regulators,” Sacramento Bee (Jun. 13, 2015), https://www.sacbee.com/news/investigations/nursing-homes/article24015475.html.
 Jack Dolan, Brittny Mejia, “Coronavirus patients could be cash cows for nursing homes,” Los Angeles Times (May 3, 2020), https://www.latimes.com/california/story/2020-05-03/coronavirus-nursing-homes-financial-profits..
 Florida’s Agency for Health Care Administration (AHCA) publishes a “Watch List,” which “identifies nursing homes that are operating under bankruptcy protection or met the criteria for a conditional status during the past 30 months. A conditional status indicates that a facility did not meet, or correct upon follow-up, minimum standards at the time of an inspection.” AJHCA, Nursing Home Information, https://ahca.myflorida.com/Nursing_Home_Guide/index.shtml.
 Ryan Mills, “Consulate Health Care, Florida’s largest nursing home company, faces quarter-billion-dollar fraud judgment,” Naples Daily News (Jul. 2, 2020), https://www.documentcloud.org/documents/7035364-Consulate-Health-Care-Florida-Fraud-Reinstated.html#document/p1/a576326.
 John Pacenti and Holly Baltz, “Post investigation: COVID-only nursing homes cited for infection control problems,” The Palm Beach Post (Sep. 21, 2020), https://www.palmbeachpost.com/story/news/2020/09/18/florida-picked-nursing-homes-spotty-records-covid-isolation-centers/5814498002/. See also Katie LaGrone, “Soome Fla. ‘COVID-19 isolation centers’ have histories of failure,” ABCNews (Sep. 8, 2020), https://www.abcactionnews.com/news/local-news/i-team-investigates/some-fla-covid-19-isolation-centers-have-histories-of-failure.
 Maggie Severns and Rachel Roubein, “States prod nursing homes to take more Covid-19 patients,” Politico (Jun. 4, 2020), https://www.politico.com/news/2020/06/04/states-nursing-homes-coronavirus-302134.
 Will Callan, “Some ‘regional hubs’ for nursing home patients with COVID-19 deficient in infection control,” WUOM.FM (Aug. 7, 2020), https://www.michiganradio.org/post/some-regional-hubs-nursing-home-patients-covid-19-deficient-infection-control.
 Ed Williams and Rachel Mabe, Searchlight New Mexico, “Nursing home for COVID-19 patients run by firm with history of violations, lawsuits,” Santa Fe New Mexican (Apr. 22, 2020), https://www.santafenewmexican.com/news/coronavirus/nursing-home-for-covid-19-patients-run-by-firm-with-history-of-violations-lawsuits/article_d7091238-8423-11ea-bd9b-9f69a2f80402.html.
 Sean Campbell, Hannah Fresques and Benjamin Hardy, “CareOne Nursing Homes Said They Could Safely Take More COVID-19 Patients. But Death Rates Soared,” ProPublica (Aug. 13, 2020), https://www.propublica.org/article/careone-nursing-homes-said-they-could-safely-take-more-covid-19-patients-but-death-rates-soared#:~:text=Coronavirus-,CareOne%20Nursing%20Homes%20Said%20They%20Could%20Safely%20Take%20More%20COVID,care%20companies%20in%20New%20Jersey.
 Brian Amaral, “Coronavirus-specialty nursing home in Woonsocket says it’s losing thousands of dollars a day,” Providence Journal (May 29, 2020), https://www.providencejournal.com/news/20200529/coronavirus-specialty-nursing-home-in-woonsocket-says-its-losing-thousands-of-dollars-day.
 Samuel Dodge, “‘Mistake made in good faith’: GOP legislators question future nursing home recommendations,” MLive.com (Sep. 10, 2020), https://www.mlive.com/politics/2020/09/mistakes-made-in-good-faith-gop-legislators-question-future-nursing-home-recommendations.html
 Michigan Nursing Homes COVID-19 Preparedness Task Force, Final Recommendations, (Placement of Residents: Recommendation 2), (Aug. 31, 2020), https://www.michigan.gov/documents/coronavirus/Nursing_Home_Final_Report_701082_7.pdf.
 Id. Placement of Resident: Recommendation 3.
 Center for Health and Research Transformation, Keeping nursing home residents safe and advancing health in light of COVID-19; Analysis and Recommendations for the State of Michigan, pp 11-. (Sep. 8, 2020), https://chrt.org/wp-content/uploads/2020/09/KeepingNursingHomeResidentsSafe_SummaryReport_9-8-2020.pdf.
 Id. 11.
 Id. 14-15.
 Id. 15.
 Id. 15-16.
 Executive Order 2020-191 (Sep. 30, 2020), https://content.govdelivery.com/attachments/MIEOG/2020/09/30/file_attachments/1559931/EO%202020-191%20Emerg%20order%20-%20Long-term%20care%20facilities.pdf.
 Scott McClallen, “Whitmer backtracks on COVID-19 nursing home policy,” Isoco County News Herald (Oct. 1, 2020), www.iosconews.com/news/state/article_770a2d84-4be3-5cf9-ba82-6ddfc54b85db.html.