During the worst days of the coronavirus pandemic, the conditions in the United States' nursing homes were horrific. Nursing home residents account for less than half-of-1-percent of the U.S. population but roughly a quarter of the deaths related to COVID-19.
Bodies piled up in makeshift morgues, staff who tested positive for the coronavirus were encouraged to come to work, and understaffing left residents helpless and alone. In a western New York home, with roughly 120 residents, for instance, a nursing assistant reported being — one day in March 2020, as the crisis mounted — the only person on duty.
The problems in America's nursing homes won't go away even if we wrestle COVID-19 into submission, however. The pandemic exposed long-standing problems in the nursing home industry that stem from chronic understaffing and underspending on care for residents — problems often motivated by owners who place profit-seeking above their residents' welfare. Spurred by the COVID-19 tragedies, some federal and state lawmakers have proposed (and, in some cases, passed) laws designed to improve the quality of nursing home care. It's a promising start, but much work remains.
Understaffing, for example, is possible — and profitable — because the U.S. regulatory system charged with ensuring that nursing homes provide safe care has failed. Federal regulations establish (on paper) a high bar for quality of care. Nursing homes must ensure that all of their residents receive individualized care in accordance with professional standards of practice and that no resident experiences avoidable harm or an avoidable decline in key abilities (such as mobility).
States are deputized to enforce these rules — and must send surveyors into homes at least every 15 months — as part of that effort. But this enforcement scheme has largely failed to protect residents.
Regulators rarely impose meaningful penalties such as fines, holds on new admissions, or payment suspensions. Usually when inspectors find that a nursing home has unlawfully endangered its residents, the facility is directed to fix the problem, and inspectors may not follow up to ensure that the problem has been corrected. A ProPublica database reveals that fines are imposed in less than 2% of cases in which inspectors find violations, and the fines levied are usually so small that they are little more than a slap on the wrist, manageable as an everyday cost of doing business.
According to ProPublica's data, the average fine for a Medicare-certified home ranges from just over $68,000 in West Virginia to under $5,000 in Nevada. Other penalties are even rarer. The database shows that, as of January, in nine states, not a single home had had federal payments suspended in the past three years.
In response to the grim events of the past 13 months, some federal lawmakers have shown interest in increasing oversight of nursing homes. For example, Sens. Robert P. Casey Jr., R.-Pa., and Robert Toomey, D-Pa., have introduced legislation that would subject a greater number of poorly performing facilities to additional inspections, and make it more likely that chronically deficient nursing homes find their Medicare and Medicaid payments cut off if they don't improve.
Meanwhile, the House Ways and Means Committee has held hearings on the role of private equity in nursing homes. Such investors have decided that nursing homes can be profit centers, and they buy them with the intent of squeezing out more money.
Some states have begun to experiment with a new approach to ensuring that nursing homes meet the standards the federal government has set: requiring them to spend a certain percentage of revenue on resident care. In September, Massachusetts announced that it would require nursing homes in the state to spend 75% of revenue on direct-care staffing costs. In October, New Jersey adopted legislation requiring nursing homes to spend 90% of annual aggregate revenue on direct resident care.
Most recently, in New York, provisions signed into law last week require nursing home owners to devote 70% of their revenue to direct patient care. Gov. Andrew M. Cuomo (D) has been under pressure to make changes after he was criticized for a March 2020 order directing nursing homes to accept patients who had tested positive for the coronavirus; his policies granting legal immunity to nursing home owners; and his concealment of nursing home death rates.
This type of spending requirement could prevent unscrupulous providers from pocketing funds needed for resident care and make nursing homes less attractive to private-equity owners. The spending requirements ideally should be paired with financial transparency requirements so that facilities cannot hide profit as expenses. A bill being considered in California, for instance, would require facilities to disclose transactions with businesses owned by the same entities that own them.
Still, some of these state laws are better than others. The gap between New Jersey's requirement of 90% and New York's 70% stipulation is a big one. What's more, New York's defines "direct patient care" to include expenses that arguably don't fit that description (such as "plant operation and management"). New York even permits regulators to waive the requirement on a case-by-case basis, a loophole that could undercut the reform.
States are also finally showing interest in requiring the staffing levels necessary to achieve the positive outcomes that Washington mandates. In response to the pandemic, New Jersey passed legislation requiring that one certified nurse associate be on duty for every eight residents during the day shift (with somewhat lower requirements at night). Rhode Island is considering a more robust approach, with proposed legislation that would require nursing homes to provide the 4.1 hours of care (per resident per day) that researchers have found necessary for humane care.
But such proposals face stiff opposition from the industry, which helped scuttle a push for minimum staffing requirements in Virginia this year and helped develop legislation adopted by Arkansas in April that reduced penalties for understaffing and weakened the state's existing staffing requirements.
If successful, minimum staffing standards could go a long way toward improving the quality of care in America's nursing homes. If you read nursing home inspection reports sent to the Centers for Medicare and Medicaid Services by state survey workers in the years leading up to the pandemic — as I have — it is routine to see documentation that nursing homes lacked the staff to meet the most basic standards.
One resident at a facility in Wintersville, Ohio, for example, was supposed to be helped each morning back into his bed after breakfast, a 2019 inspection notes. On a day in January 2019, he waited two hours, and, when no one came, tried to move himself. He fractured his face in several places and suffered bleeding within his skull.
In another case, a nursing home resident in Rio Rancho, N.M., returned after treatment at an acute-care facility and complained of nausea. He was found unresponsive several hours later and died; neither the day nor evening shift nurse was aware of this person's presence. Understaffing may contribute to other endemic abusive practices. Human Rights Watch, in a 2018 report, found that U.S. nursing homes routinely overmedicate residents who have dementia, to make them easier to manage.
We have a long way to go before robust standards for nursing homes are established and enforced in all states, let alone at the federal level. Therefore, the federal government should be considering other reforms, as well. For example, as the primary payer for long-term-care services in the United States (via Medicaid), the federal government could pay nursing homes that provide high-quality care more than those that provide substandard care; currently, reimbursement rates vary little by quality.
Washington could also use the power of the purse to improve quality by introducing more competition for the nursing home industry. Currently, federal Medicaid law requires states to pay for long-term-care services that are provided in nursing homes but not those covered in non-institutional settings. This forces people who might prefer home-based services into institutional settings and gives nursing homes an unfair competitive advantage.
Requiring state Medicaid programs to cover home and community-based services — an idea being floated by Rep. Debbie Dingell, D-Mich., and a handful of U.S. senators — would enhance consumers' ability to shop for quality care.
Ultimately we know what needs to be done to improve long-term care in the United States. The question is whether politicians care as much about nursing home residents as they do about the nursing home lobby, which remains a potent political force.
Nina A. Kohn is the David M. Levy professor of law at Syracuse University and the Solomon Center distinguished scholar in elder law at Yale Law. This piece was written for The Washington Post.