The Center for Medicare Advocacy
The Center for Medicare Advocacy (Center) is a national, private, non-profit law organization, founded in 1986, that provides education, analysis, advocacy, and legal assistance to assist people nationwide, primarily the elderly and people with disabilities, to obtain necessary health care, therapy, and Medicare. The Center focuses on the needs of Medicare beneficiaries, people with chronic conditions, and those in need of long-term care and provides training regarding Medicare and health care rights throughout the country. It advocates on behalf of beneficiaries in administrative and legislative forums, and serves as legal counsel in litigation of importance to Medicare beneficiaries and others seeking health coverage.
The COVID-19 pandemic is a national crisis that demands a national solution. The Federal Government has repeatedly expressed the position that the pandemic is “locally executed, state managed, and federally supported.” That approach has not effectively addressed and controlled the pandemic. Mandatory federal action, long overdue, is critically needed.
The Center urges an immediate reinstatement of resident protections that exist in federal law and regulations governing nursing facilities, which the Administration unilaterally waived during the pandemic. These waivers have harmed residents, their families, and workers and have failed to stop either the spread of COVID -19 among residents and staff or the deaths of residents and staff. The Center also proposes significant statutory, regulatory, and policy changes going forward to improve care for residents and working conditions for staff and to ensure that federal Medicare and Medicaid payments are actually spent on care of residents.
For the immediate future in addressing the pandemic with respect to nursing facilities, the Center for Medicare Advocacy recommends
- Requiring facilities to test all nursing home workers at least weekly. Either nursing facilities or state or federal government must pay for tests; staff should not be asked or required to pay for the tests.
- Requiring nursing facilities to pay staff hazard pay during the pandemic and to pay staff who test positive at least their full-time salaries while they are absent from work.
- Requiring nursing facilities to test all residents at least weekly.
- Requiring nursing facilities to cohort residents by COVID-19 status, with complete separation of residents and with staff dedicated to different units.
- Requiring states to establish COVID-19 positive facilities meeting specified standards, including at least
- 24 hour per day registered nurse staffing
- At least one full-time infection control specialist on site
- At least weekly testing of residents and staff
- Prohibitions on designating facilities as COVID facilities that
- Are Special Focus Facilities or SFF candidates
- Have fewer than 3 stars on the health inspection domain on Nursing Home Compare
- Have fewer than 4 stars in the staffing domain on Nursing Home Compare
- Have civil money penalties (CMPs) of $5000 or more imposed in the prior three years (including CMPs on appeal)
- Requiring CMS to
- Liberalize visitation rules for families, visitors, and ombudsmen
- Vacate the “flexibilities” that authorized waiver of resident protections (including transfer and discharge protections), waiver of nurse aide training requirements, waivers of requirements that facilities report resident assessment data (and require reporting retroactive to January 1, 2020) and payroll-based journal staffing data (and require reporting retroactive to January 1, 2020)
- Resume full standard and complaint surveys immediately
- Conduct surveys for complaints and facility-reported incidents that state survey agencies triaged as lower than immediate jeopardy (since March 2020)
- Resume enforcement activities, retroactive to January 1, 2020
For the longer term, changes in federal law, regulations, and policy are necessary. Many of these points were included in the Center’s invited testimony before the Ways and Means Committee’s Subcommittee on Health on June 25, 2020, in its hearing entitled “Examining the COVID-19 Nursing Home Crisis.”
First, all facilities must have sufficient numbers of well-trained, well-supervised, and well-compensated nursing staff. The key single predictor of good quality of care and quality of life for residents is nurse staffing – both the professional registered nurses and licensed practical nurses and the certified nurse assistants. All facilities need registered nurses around the clock.
Recent research documents that facilities with higher nurse staffing levels, particularly registered nurses, are less likely to have residents infected with COVID-19.
The Centers for Disease Control and Prevention’s Weekly Morbidity and Mortality Report about the Life Care Center of Kirkland, where COVID-19 first appeared in a U.S. nursing facility, found that a key reason for the spread of the virus was workers going from facility to facility, unwittingly spreading the virus while they were asymptomatic. Minimum wage salaries and the absence of paid sick leave mean that many certified nurse aides have multiple jobs and work while sick. Federal law and policy must mandate that workers receive a living wage and paid sick leave.
Second, the survey and enforcement systems, which have failed to ensure that facilities fully meet federal standards of care, need to be significantly strengthened. Enforcement, now implemented solely on a facility-by-facility basis, should also evaluate facilities on a corporate-wide basis. Dismantling of meaningful enforcement needs to be reversed.
The Trump Administration largely dismantled the already-weak enforcement system. For example, it made per instance civil money penalties (CMPs) the default, rather than higher per day CMPs. In 2016, a typical per day fine average more than $60,000; in 2019, the now more typical per instance fine was less than $10,000. Meaningful enforcement is essential so that facilities treat noncompliance seriously. Trivial penalties, too often treated as just the cost of doing business, cannot be a meaningful deterrent or motivation to comply fully with federal standards of care.
Moreover, with many policy decisions made at the corporate level, enforcement needs to address corporations, not just individual facilities.
Third, states must establish and enforce meaningful standards for who is eligible to operate a facility (i.e., receive a state license) and, independently, CMS must establish and enforce meaningful standards for who is eligible to receive Medicare and Medicaid reimbursement for care (i.e., receive federal certification). At present, ownership and management of nursing facilities appear to shift with little public information and no effective oversight.
The collapse of Skyline Healthcare in 2018 and 2019 was the most visible and vivid example of the problem of allowing companies without adequate financial and management resources to take over multiple facilities. This New Jersey company had a handful of facilities, but then, beginning in about 2016 or 2017, began to manage facilities across the country, primarily facilities that large chains decided to stop operating. In a period of little more than a year, Skyline Healthcare began operating between 100 and 120 facilities in eight states across the country. Then, within an equally short period, it stopped meeting payroll and paying vendors. States went to court to get legal authority to take over the facilities in order to make sure that residents received care, food, medicine, and supplies.
While other companies had gone into bankruptcy before and other owners had abandoned facilities before, there had never been such a large collapse, affecting so many states, so many facilities, and so many residents and staff. Skyline’s collapse brought attention to the problem of who owns and who manages facilities – and whether are they qualified, competent, and have the financial and management resources to do so.
Meaningful standards of ownership and management are critical and these standards must be enforced. States and CMS cannot allow “firms that emerge from nowhere” to run nursing facilities without greater screening, monitoring, and accountability.
The Federal Government cannot grant certification – and the billions of dollars that flow from certification – to any facility that a state licenses. Independent federal review is critical.
Finally, there need to be regular audits of facility spending and clear requirements that facilities spend a reasonable proportion of reimbursement on care for residents – such as a medical loss ratio requirement, as the Affordable Care Act mandated for managed care companies.
Facilities receiving public reimbursement are allowed to spend the reimbursement however they choose once they receive it. Federal law and policy must require both an accounting of how the public reimbursement is spent and a requirement, meaningfully enforced, that ensures that the billions of dollars that facilities receive from Medicare and Medicaid are spent on the staff, food, supplies, and care that residents need.
Toby S. Edelman
Senior Policy Attorney
Center for Medicare Advocacy
July 17, 2020
 Yue Li, “COVID-19 infections and deaths among Connecticut nursing home residents: facility correlates,” Journal of American Geriatrics Society (2020) (in press); Charlene Harrington, et al, “Nurse Staffing and Coronavirus Infections in California Nursing Homes,” Policy, Politics, & Nursing Practice (2020) (in press).
 McMichael TM, Clark S, Pogosjans S, et al. COVID-19 in a Long-Term Care Facility — King County, Washington, February 27–March 9, 2020. MMWR Morb Mortal Wkly Rep 2020;69:339-342. DOI: http://dx.doi.org/10.15585/mmwr.mm6912e1external icon.
 Harold Brubaker, “Questions about Willow Terrace owner after nursing home collapse in Nebraska and Kansas,” Philadelphia Inquirer (Apr. 12, 2018), http://www.philly.com/philly/business/questions-about-skyline-healthcare-after-nursing-home-collapse-in-nebraska-and-kansas-20180412.html; Lindy Washburn, “Thousands of nursing home patients nationwide affected by NJ company’s financial trouble,” Northjersey.com (Apr. 16, 2018), https://www.northjersey.com/story/news/watchdog/2018/04/16/thousands-nursing-home-patients-could-affected-fast-growing-nj-nursing-home-company-trouble-nebraska/493643002/.
 Charlene Harrington, Dana Mukamel, and Pauline Rosenau, Improving the Financial Accountability of Nursing Facilities” (June 2013), https://sph.uth.edu/rosenau/files/2011/12/Improving-the-Financial-Accountability.pdf.