Loyola University Chicago School of Law, JD 2020
According to the Centers for Disease Control (“CDC”), older adults and people with severe underlying medical conditions are at higher risk for developing more serious complications from the COVID-19 illness. For this reason, among others, long-term care facilities have been hit particularly hard by the virus. Although it was difficult to be prepared for this pandemic, there are concerns that many long-term care facilities did not have proper preventative measures in place in even before COVID-19 became an issue. Because of this, long-term care facilities have become hot spots for the viruses spread. As states and the federal government continue to monitor long-term care facilities’ compliance with local and federal laws, regulatory agencies are now also faced with added pressure to not only slow the spread of COVID-19 within the facilities, but also to control the legal environment in the anticipated aftermath of the outbreak.
The Regulation of Long-Term Care Facilities
Nursing homes are regulated by both the federal government and their respective state health departments. The state, working alongside the federal government to regulate long-term care facilities, is permitted to issue citations to facilities for their violations of state and even federal laws. Now that many nursing facilities have essentially become a breeding ground for COVID-19, nursing homes have come under increased scrutiny from their respective state governments in their handling of the virus. In California, recent data collected shows that 95% of nursing homes with confirmed COVID cases were previously cited by regulators at least once from 2016 through January 2020 for failures related to controlling the spread of infections. In New York City nursing homes, similar violations have resurfaced in light of the pandemic. New York Health Department data collected similarly revealed thirteen (13) nursing homes with at least ten (10) COVID-19 deaths,
A New Regulatory Environment
As previously mentioned, no one could be prepared for a pandemic of this magnitude. However, the nursing homes that were previously cited for infection-control failures, which could include healthcare worker’s failing to wash their hands, were already a step behind when this pandemic began. In response to the widespread virus, the federal government and various state health departments have released new guidelines and requirements to control and treat COVID-19 in nursing homes. In March 2020, the CDC released an “Infection Prevention and Control Assessment Tool” for nursing homes preparing for COVID-19. The Assessment Tool provides, in part, guidelines and strategies to contain the virus. In Illinois, the state health department has similarly released guidelines for the long-term care facilities in which they operate. The Illinois Department of Public Health recently released COVID-19 control measures, which include, among other things, guidelines for how to react when a resident is displaying symptoms, and guidance for communal dining within the facility.
CMS Takes a Step Back
Besides implementing guidelines like those discussed above, federal and state regulators face their own challenges in an attempt to control the spread of COVID-19 in these facilities. The Centers for Medicare and Medicaid Services (“CMS”) is the federal agency that works alongside state health departments to regulate long-term healthcare facilities like nursing homes. Although CMS is a robust system which protects our most vulnerable population, CMS has been forced to cutback certain long-standing regulatory and enforcement efforts in an effort to focus more time and resources on the COVID-19 outbreak. Earlier this year, CMS announced its plan to suspend non-emergency survey inspections across the country. Although the cutback will certainly bolster CMS’ ability to monitor and regulate facilities facing the virus, the cutback also signals CMS’ inability to regulate other “normal” nursing home operations.
Liability Protection Related to COVID-19
During this unprecedented time, regulatory agencies are doing what they can to continue to monitor long-term care facilities’ compliance with state and federal regulations. However, it is unrealistic to overlook the lawsuits that will likely stem from some nursing home’s failures to protect residents from death or sickness caused by COVID-19. This is an issue that has already emerged in the healthcare, insurance, and political sectors in recent months. Some states, like New York, have already implemented measures which will make it difficult, if not impossible, for families to sue nursing homes in the aftermath of the virus. Because most states have not yet taken similar action, the federal government has come under pressure from health provider organizations to shield health care workers, facilities, and businesses from litigation in the months and years to come.
Immunity Could Have Negative Impact
Congress is now faced with the difficult task of weighing the costs and benefits of immunizing certain health care facilities, including nursing homes. Long-term care workers are included with those serving on the front lines, treating some of our most vulnerable citizens. As such, some believe it to be critical that states and the federal government provide liability protection. Although, opponents of liability protection, especially in long-term care facilities, have voiced concerns. Mairead Painter, the director of Connecticut’s State Long Term Care Ombudsman Program worries that Both sides of the debate have viable concerns and credible arguments regarding health care immunity during these difficult times. Although CMS and other state health departments have taken a step back in certain long-term care facility regulatory efforts, the states and federal government remain involved in new, emergent areas.
When the COVID-19 pandemic was declared a national emergency, no one was prepared. And, although there are multiple regulatory agencies who were already working tirelessly to certify compliance with the applicable laws, these very agencies are now being pulled in several directions. They are tasked with maintaining normalcy, controlling the spread, and now with the resulting impact of the virus. These unprecedented times will likely lead to unprecedented governmental action of healthcare regulation in the months and years to come. Every facet of our society has been impacted by this pandemic, and long-term care facilities are not certainly no exception.
Command and control regulatory compliance schemes can be cost effective for industries with primarily large organizations, particularly those that are publicly traded, which are influenced by potential reputation damage. Where, as here, a large number of smaller entities dominate the sector, the control (enforcement) can be cost prohibitive, and liability risk may be the better tool for compliance. However, even liability can be an inadequate remedy where access to information, investigation, and the civil tort system necessary for compensation becomes a hurdle too high for too many legitimate victims. Granting immunity to the slipshod operators only aggravates the shortcomings by encouraging better operators to slash quality to remain competitive. The model that has been most effective in this type situation, albeit still viewed as unsatisfactory by both sides, is that of Workers Compensation. The defendants are granted immunity from civil tort suit and the potential of catastrophic awards, but still have the incentive to reduce risks and enhance performance through insurance premiums that fluctuate with risk and performance. In exchange, victims get relatively easy access to compensation, which can honestly be described as a windfall from time to time, but not winning the lottery. The system is subject to fraud and abuse on both sides, but overall has stood the test of time, successfully adapting to changing employment over generations. It may be a good model to explore for the regulation of long-term care facilities, and maybe other health care facilities in the long run.
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