Even as many states grant immunity from civil liability to nursing facilities for harm and death resulting from the coronavirus pandemic, 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, including a facility that was reported to have mishandled the bodies of 17 residents who had died. 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.” 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. 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” – 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. 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).
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.
 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.
 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.
 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.
 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/.
 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.
 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/.
 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.