Nursing homes have been devastatingly impacted by the COVID-19 pandemic. As of February 26, 2021, as many as 34% (172,000+) of all COVID-19 deaths in the United States have been nursing home residents and employees. While COVID-19’s lethality in older adults and likelihood of transmission in congregate facilities are to blame, plaintiffs’ attorneys specifically question sweeping legislation among various states regarding nursing home restrictions on refusing COVID-19 positive residents and immunity protections. A look at the Public Readiness and Emergency Preparedness (“PREP”) Act and recent federal cases sheds light on the future of plaintiff suits related to COVID-19 deaths in nursing homes.
The COVID-19 pandemic has impacted residents and staff of nursing homes and long-term care facilities more than any other demographic, accounting for nearly 40 percent of the total mortality rate from the virus in the United States. According to Centers for Medicare & Medicaid Services (“CMS”), at least 132,000 residents and employees have died from complications of the COVID-19 across 31,000 facilities, although some estimates place the death count closer to 200,000. One factor aggravating the number of deaths in nursing homes is the extraordinarily high rate of staff turnover each year.
On March 3, 2020, the Department of Justice (“DOJ”) launched a National Nursing Home Initiative to “coordinate and enhance civil and criminal efforts to pursue nursing homes and long-term care facilities that provide grossly substandard care to their residents.” The DOJ’s new initiative adds to its extensive efforts to combat elder abuse and financial fraud targeted at American seniors. The initiative will start with a focus on some of the worst nursing homes and enhance all civil and criminal efforts to pursue the nursing homes that provide grossly substandard care to their residents.
The Centers for Medicare and Medicaid Services (CMS) efforts to strengthen the nation’s health care through its oversight of health care programs, including Medicare, has continuously made strides to ensure its beneficiaries receive the quality and affordable health care needed. The U.S. has struggled with the quality of care provided in nursing homes to the most vulnerable citizens for years. Nursing homes have continued to remain highly regulated, but the U.S. government has failed to hold the nursing homes industry accountable for the poor quality of care provided. America’s shortage of nurses has contributed to the poor quality of care that leads to life threatening problems of Medicare beneficiaries living in nursing homes. Furthermore, despite the nursing home industry’s large profitability, and the level of hands on care that the nurses provide, the pay for staff nurses in nursing homes is less than other major employers. Thus, CMS has implemented regulations to guarantee nursing homes are properly staffed in order to improve resident care and safety by monitoring payroll-based data and holding nursing homes accountable for poor care by minimizing reimbursement for conditions that could be averted with better oversight.
In August, the U.S. Department of Health and Human Services (“HHS”) Office of Inspector General (“OIG”) made an additional focus in its Work Plan for the oversight of nursing facility staffing levels. These changes were made in the light of backlash from a July 2018 news article which reported that nearly 1,400 nursing homes had fewer qualified staff on duty than they were required or failed altogether to provide reliable staffing information to the Centers for Medicare and Medicaid Services (“CMS”).