Can We Place the Blame for COVID-19 on Regulators?

In her essay in the Georgetown Law Journal Online this past spring, Nina A Kohn argued that we should have been able to predict that nursing homes would be the epicenter of the COVID-19 pandemic, not only because of the nature of close contact with chronically ill, debilitated, and immunocompromised individuals, but because of the inadequate government support for long-term care. At the same time, Kohn refers to the “nursing-home-as-victim” narrative, which supports what she believes are poor choices made throughout the industry which inevitably harm residents.

Regarding government failures, Nina Kohn argues that governments provided inadequate guidance and regulatory oversight to skilled nursing facilities, which she believes increased the number of resident deaths from the virus. These failures include the lack of adequate testing and personal protective equipment.

Additionally, Kohn identified that some Canadian provinces had precluded nursing home staff from working at more than one facility, while the United States made no such prohibitions despite the recognition that employees were likely spreading COVID-19 from one facility to another. Although it certainly is true that the virus was spread by some employees who worked in multiple facilities, staff returned home to the community after work, often residing in multi-generational households where the likelihood of infection was greater. Skilled nursing facilities would have had little authority to limit where their staff worked and lived when not on duty. It is unlikely that the federal or state governments would have been successful in enforcing such restrictions.

In her essay, Kohn argues a point that we all know is true—sufficient numbers of staff are key to attaining quality. What she fails to include, however, is that long-term care staffing was in jeopardy before COVID-19, and it has become an even more critical issue today.

It is a problem requiring complex solutions, including how to motivate Americans to work as caregivers in long-term care after the Great Resignation; fixing immigration laws to allow more frontline workers into the country; and the most difficult issue: how the community can see nursing home staff as heroes without us having to place signs on the lawn of the facility to identify how difficult it is for people to work in this setting.

Kohn’s solution to the crisis in long-term care is to address the under-enforcement of existing regulations. Kohn states, “Nearly 95% of nursing homes have documented deficiencies each year and the majority of nursing homes have recently documented infection control deficiencies.” It is not surprising that a skilled nursing home would have at least one citation during the year, nor would it be unexpected that infection control tags would be cited as the country recovers from COVID-19.

Although there is great variability in what constitutes a regulatory violation from region to region, state to state, and within states, the type of regulatory infraction and the pattern of that infraction matters more than simply the number of violations or the enforcement of regulations that have little impact on the health, welfare, and quality of life of the nursing home resident. Having surveys that are more focused on objective criteria can only enhance the care provided in skilled nursing facilities.

Finally, Kohn suggests that the federal government apply a medical loss ratio formula to nursing homes. This mechanism was part of the Affordable Care Act, which required insurers to spend a minimum of 80% or 85% of premium dollars on patient care. In this scenario, Kohn advocates for the federal government to require nursing homes to spend a predetermined amount on direct care of residents rather than using it for administrative means or as profit. Perhaps such an approach would be a disincentive for less reputable owners and operators.

Reference:
Kohn, NA. Nursing homes, COVID-19, and the consequences of regulatory failure. Georgetown Law Journal Online. 2021. https://www.law.georgetown.edu/georgetown-law-journal/glj-online/glj-online-vol-110/nursing-homes-covid-19-and-the-consequences-of-regulatory-failure/