Elder Law Prof Blog

SNF Staffing Standards-New Report

Yesterday I blogged about California's consideration of tying Medicaid funding for SNFs to certain quality of care benchmarks. Today I wanted to let you know about a new report released by the National Consumer Voice for Quality Long-Term Care. State Nursing Home Staffing Standards SUMMARY REPORT opens noting that

"Chronic understaffing has been a serious problem in nursing homes for decades and has been exacerbated by the COVID-19 pandemic. While there are numerous factors contributing to this problem, one major cause is the lack of adequate minimum staffing standards at both the state and federal levels. Minimum standards ensure that staffing will not fall to a level that would be harmful to residents. Local, state, and national advocates have pushed for minimum staffing standards for years. Knowledge of the range of state staffing requirements can be very useful in these efforts. To that end, the focus of this summary report is to present staffing requirements from each state and analyze how they compare to each other and to levels recommended by research conducted for the federal government. This information can also be helpful to policymakers, researchers, and the media.

The report discusses the connection between staffing and quality care, the research on minimum staffing standards, laws and regs at both state and federal levels, an analysis of state staffing standards, recent developments, and concludes with this

Twenty years after the CMS study found that at least 4.1 hprd of direct care nursing staff time are needed just to prevent poor outcomes, state staffing requirements, with a few exceptions, are nowhere near that recommended level. Only the District of Columbia requires this overall level of staffing, and only six states mandate the presence of a registered nurse 24 hours a day regardless of facility size. Despite what is known about the relationship between staffing levels and quality care, staffing standards in almost every state remain severely low. Residents have waited decades for adequate staffing around the clock. Every day that passes without sufficient staffing jeopardizes their health, safety and welfare. Ongoing and robust advocacy is needed at both the federal and state levels to provide residents with the care to which they are entitled and that they deserve.

The full report is available here, a summary here, Appendix A (guide to state staffing standards) here, and Appendix B (state staffing standards comparison) here.

California Reconsidering Criteria for SNF Medicaid Funding

Well, as I write this, it looks at though the world is heading for another COVID surge.  Thus, this recent article from Kaiser Health News is particularly timely. After ‘Truly Appalling’ Death Toll in Nursing Homes, California Rethinks Their Funding opens with this sobering statistic: about 1 of every 8 of those California residents who died due to COVID resided in SNFs which translates to roughly 9,400, with an added  56,275 SNF residents with confirmed COVID who survived it.  As a response, the article notes, that the Governor's office is looking into a proposal that ties SNF funding to performance, with "those that meet new quality standards would get a larger share of state funding than those that don’t."

There will be several hurdles, and the industry is gearing up to oppose it while families of those who died are prepared to support it.  For example, the CEO of  California Association of Health Facilities, doesn't think the facilities should bear the blame, since "residents naturally at higher risk than the rest of the public, [and] facilities were forced to accept hospital transfer patients who had not been tested for the virus, they couldn’t get adequate supplies of personal protective equipment, and they suffered as staff members got covid in the community and then brought it into work."  The counter-point from various studies notes that SNFs "with fewer nursing staff members experienced significantly higher covid infection and death rates. That devastating outcome is bolstering a two-decades-long argument by patient advocates that nursing homes must hire more workers."

Staffing is not the only issue, and the article explores others, including the profits made by the various chains.  California is not alone in considering actions to improve quality of care.  I'm sure there will future blogs on this topic.

NY Times Investigation Into CMS Appeals Process for SNFs

The New York Times published the results of an investigation into SNF deficiencies in How Nursing Homes’ Worst Offenses Are Hidden From the Public opens with 3 examples of errors and notes "[s]tate inspectors determined that all three homes had endangered residents and violated federal regulations. Yet the federal government didn’t report the incidents to the public or factor them into its influential ratings system. The homes kept their glowing grades."

Describing the results of the investigation, the article notes

that at least 2,700 similarly dangerous incidents were also not factored into the rating system run by the federal Centers for Medicare and Medicaid Services, or C.M.S., which is designed to give people reliable information to evaluate the safety and quality of thousands of nursing homes.

Many of the incidents were uncovered by state inspectors and verified by their supervisors, but quashed during a secretive appeals process, according to a review of thousands of pages of inspection reports and nursing home appeals, which The Times obtained via public-records requests. Others were omitted from the C.M.S. ratings website because of what regulators describe as a technical glitch.

Knowing the importance of the results of the inspections, the article offers that "[o]n-the-ground inspections are the most important factor in determining how many stars homes receive in Medicare’s rating system. The reports that inspectors produce give the public an unvarnished view inside facilities that house many of the country’s most vulnerable citizens."  

Despite the importance of such info, the system isn't transparent.  "On the rare occasions when inspectors issue severe citations, nursing homes can fight them through an appeals process that operates almost entirely in secret. If nursing homes don’t get the desired outcome via the informal review, they can appeal to a special federal court inside the executive branch. That process, too, is hidden from the public." Even though CMS may prevail, the results don't always end up on the compare website.  Why not?  "Jonathan Blum, the chief operating officer for C.M.S., said that citations are omitted during state-level appeals to be fair to nursing homes that are disputing inspectors’ findings. He acknowledged that even after appeals are exhausted, some citations still don’t appear on Care Compare. He said C.M.S. is 'working to correct this issue.'"

The article offers an excellent overview of the inspection requirements and process, as well as pointing out some of the limitations of the process.

This is a really important report and I plan to make it required reading for my students. You need to read it also!

Thanks to my friend and colleague, Professor Bauer, for sending me the link to the article.

Massachusetts Supreme Court Holds Conservator Entitled to Absolute Immunity for Conduct "Authorized or Approved" by Probate Court

In a case of first impression for the high court in Massachusetts and decided in August 2021, the Supreme Court concluded that where a conservator acts on behalf of an elderly woman "pursuant to judicial approval as a quasi-judicial officer," the conservator is entitled to "absolute immunity for conduct that is authorized or approved by the probate court."  

In Hornibrook v. Richard,  the plaintiff is one of two sons of a woman in her "mid-eighties and suffering from progressive dementia due to Alzheimer's Disease." He was appointed by a Massachusetts probate court to serve as guardian for his mother, but when his allegedly neglectful brother objected to his appointment as a permanent guardian for their mother, the probate court appointed a Massachusetts licensed attorney, selected from a list of qualified attorneys, to serve separately as the conservator.  The dual appointments occurred in the context of a serious, ongoing dispute between the woman's two sons.  It seems clear the court appointed the nonfamily-member conservator in an effort to diffuse the family dynamics.

Instead, attempts by the conservator to evict or negotiate with the resident-son from the mother's home appear to have dragged on for months, and the mother was never able to return to home.  The guardian-son eventually sued the conservator, alleging (1) breach of fiduciary duty, (2) malpractice, (3) conversion, and (4) fraud.   

The Supreme Court used Massachusetts' "functional analysis" for determining whether an individual performs a quasi-judicial function that entitles the officer to "absolute immunity."  The court compared the case to prior Massachusetts immunity decisions involving a court-appointed psychiatrist, court clerks, guardian ad litem in family court, and a personal representative in an estate, concluding that where individuals are appointed to perform "essential judicial functions" they are entitled to absolute immunity. 

Facts that appeared to be key to this ruling included the conservator's formal request for court authority to take specific, disputed actions, such as renovating the house and placing it on the market for sale. 

The court issued a de-facto caution, however, that immunity may not be granted for all actions taken by a conservator:

"Because the plaintiff here does not allege that the defendant was acting outside the express authorization of the probate court, we do not address the extent to which the conservator may be liable personally when acting within his or her statutory authority but without express authorization or approval of the probate court."

One can anticipate more motions and probate hearings being sought by guardians -- at least the cautious guardians -- as a result of this ruling.  But one can also expect that family members resentful of slow-moving protective-probate proceedings will not be reassured by this ruling.  

Hidden Costs of Caregiving

Vox recently published The staggering, exhausting, invisible costs of caring for America’s elderly. "As someone ages, their health appears to gradually deteriorate in a way that doesn’t seem alarming. Most of the time, though, they’re inching toward a cliff — and when they fall off, they find themselves on another health cliff, and another, and another. With each cliff, it gets more difficult for a family member to catch them."  Lack of long term care insurance and a lack of understanding of what Medicare covers leaves many unprepared when the need for caregiving arises.  Nursing homes remain expensive and concerns arising as a result of COVID remain relevant today, the article notes. The impact on caregivers is highlighted in the article. Here are some excerpts:

[M]ost of this care work — both paid and unpaid — remains invisible. According to the most recent data from the AARP, an estimated 41.8 million people, or 16.8 percent of the population, currently provides care for an adult over 50. That’s up from 34.2 million (14.3 percent) in 2015.

Of those caregivers, 28 percent have stopped saving, 23 percent have taken on more debt, 22 percent have used up their personal short-term savings, and 11 percent reported being unable to cover basic needs, including food. The average age of someone providing care for an adult is 49, but 23 percent are millennials and 6 percent are Gen Z. Sixty-one percent are women, and 40 percent provide that care within their own homes, up from 34 percent in 2015.

A lot of these caregivers are really, really struggling. What’s required of them is more complex and time-consuming than just 10 years ago, as caregivers deal with overlapping diagnoses related to physical health, mental health, and memory loss as the elderly live longer. The work is much more than just clearing out the guest room or setting another place at the dinner table.

I find the article thoughtful and thought-provoking. It's worth reading and I'll use it in my class.  Consider this excerpt:

t’s only recently that we’ve settled on the understanding that care for elders is natural, moral, and ideal, even when the people providing this care are suffering or lacking the skills to provide the quality of care the recipient requires, or both. Crucially, by locating responsibility for care squarely on the family unit, it also continues to limit or excuse greater society — which is to say, the government — from the responsibility of providing care to the most vulnerable members of society. Our belief that the family is always the best and preferred care provider makes it much harder to advocate for the sort of larger, taxpayer-funded systems that would make all care, regardless of whether it’s provided by a family member, far easier.

There are other consequences to this naturalization of family responsibility. When labor is continually framed as something done out of love or instinct, it loses its connotation as labor and, by extension, its value. When women (and white middle-class women in particular) began moving into the workforce en masse in the second half of the 20th century, they didn’t quit their domestic work. They just did two jobs, one layered on top of the other; they would put in a full day in a traditional workplace for pay, then went home and kept working, unpaid.

Many women could only juggle these two separate jobs with the help of other women, both paid and unpaid. Poor working women had been doing this for some time, relying on “kith and kin” for child care in particular. Some middle-class women increasingly began to do the same, relying on friends but mostly family, while some began paying other women to do the work. This domestic labor, whether in the form of child-rearing, laundering, cleaning, or cooking, was essential, but because it had been so thoroughly normalized as unpaid work, it was also easy to normalize incredibly low wages for those who do it, even if that person had no relation to the family.

The article discusses the stresses of, and costs from caregiving and concludes with a sense of urgency regarding a looming crisis, if action isn't taken

Right now, several experts told me, the public alarm around the state of elder care is about where it was with child care 10, 15 years ago. We didn’t act on the alarm bells when it came to child care, and now the system is in a pandemic-accelerated crisis, with rippling effects across the economy. The question, then, is whether we want to wait the 10, 15 years for that implosion, right as even more Gen X-ers, millennials, and older Gen Z-ers age into caregiving roles and, shortly thereafter, need their own care. Or do we want to address the problem now, before it risks collapsing us, and our families, entirely.

Thanks to Morris Klein for sending me the link to this article.

Paying for Old Age

The New York Times recently published an opinion piece, Getting Old Is a Crisis More and More Americans Can’t Afford.  The article has some good statistics in it. Focusing on long-term care needs, the article compares demand and supply and costs. "[M]ost seniors will require long-term care. Almost 70 percent of Americans turning 65 today are expected to need extended services and supports at some point. About 20 percent will need care for more than five years. Despite this, the majority of those age 40 and over have done no planning for their long-term care, according to a 2021 survey by the AP-NORC Center for Public Affairs Research."  The article notes the scope and limitations of Medicare, Medicaid and long-term care insurance and examines the work of  "a broad cross-section of policy experts, consumer advocates and industry representatives [who] formed the Long-Term Care Financing Collaborative to explore more sustainable funding models. The central recommendation of the group’s final report, issued in 2016, was the creation of a universal public insurance program." Noting challenges of making this a reality, the author  suggests that "[t]he outlook may be more promising at the state level. In 2019, Washington State passed the nation’s first state-run long-term-care insurance program. The WA Cares Fund is to be funded by a 0.58 percent payroll tax on employees. Starting in 2025, eligible residents can receive benefits of $100 per day, with a lifetime cap of $36,500."

More News on the SNF Front

Two recent developments worth mentioning.  First, at the ABA annual meeting, the ABA passed resolution #800 from the Commission on Law & Aging, the Section on Civil Rights and Social Justice, and the Senior Lawyers Division, concerning density and size for nursing homes.  The report, proposed resolution and final resolution are available here.  The direct link to the final resolution can be found here.  Here are the 3 resolutions:

RESOLVED, That the American Bar Association urges the U.S. Congress and the Department of Health and Human Services to institute a review of the advisability and feasibility of phasing in size and design standards for nursing homes that would require small, household model facilities with single rooms and private baths, given their safety and infection control advantages in public health emergencies such as the Covid-19 pandemic;

FURTHER RESOLVED, That the American Bar Association urges Congress and the executive branch to provide financial incentives for the development and operation of nursing homes meeting  size and design standards developed pursuant to this review through means such as, but not limited to, restructuring the Section 202 Supportive Housing for the Elderly Program of the Department of Housing and Urban Development (HUD), tax incentives under the Internal Revenue Service, or actions by other executive branch agencies to provide or encourage low cost financing for the redesign, remodeling, building and rebuilding of nursing homes meeting these standards; and

FURTHER RESOLVED, That the American Bar Association urges the Centers for Medicare and Medicaid Services to change Medicare and Medicaid regulations and payment policies to pay for single private rooms and bathrooms for all residents, with reasonable reimbursement rates for such rooms.

Second, Sens. Ron Wyden of Oregon and Bob Casey of Pennsylvania and others introduced a Senate bill, the Nursing Home Improvement and Accountability Act of 2021.  The bill has 3 parts,  (1) transparency and accountability, (2) staffing improvements, and (3) "building modification and staff investment demonstration program." The full bill is available here. A summary is available here. And a section analysis is available here.  Here are some key points of the bill, from the AP story about it:

— Raise salaries and benefits for nursing home staff by giving states the option of an increase in federal Medicaid matching funds, available over six years. Low wages in the nursing home industry make for constant turnover, a critical problem even before the pandemic. The bill also starts a process for setting minimum staffing thresholds.

— Require nursing homes to have an infection prevention and control specialist.

— Require nursing homes to have a registered nurse available 24 hours a day, instead of the current eight hours.

— Bolster state inspections of nursing homes, and add more low-performing facilities to a “special focus” program that helps them improve quality.

— Forbid nursing homes from requiring residents and families to agree in advance to arbitration, thereby waiving their rights to go to court over disputes involving care.

 

Filial Friday? Court Holds Son Liable for Attorneys Fees Incurred While Securing Medicaid Coverage for Father's NH Care

Pennsylvania courts use "filial" responsibility laws in, shall we say, creative ways, especially when they catch any whiff that children helped themselves to their parent's money rather than using that money to pay for their parents' nursing home care.  One of the key modern-era cases for filial support law in Pennsylvania is Presbyterian Med. Ctr. v. Budd, 832 A.2d 1066 (Pa. Superior Ct, 2003), where the court remanded a case for decision on filial support law grounds, in the absence of other viable theories, in order  to hold a daughter liable for her mother's costs of nursing home care. The court was clearly annoyed by the evidence the daughter had transferred some $100k of her mother's funds to herself using a "valid" power of attorney, instead of paying the nursing home.

It probably doesn't make the court any happier if the defendant/child is also a lawyer.  

In the latest Pennsylvania decision decided by the Court of Common Pleas in Montgomery County,  Coates v. Salmon, No. 2018-16878, both the plaintiffs and the defendant are lawyers.  The trial court was asked to determine whether a son was personally liable for attorneys fees incurred when the son "engaged" another attorney, one experienced in Medicaid issues, regarding a penalty period assessed against his father.  The penalty made his father ineligible for 296 days in Medicaid funding for his nursing home care.  The lawyer was able to negotiate a reduced penalty period, with a successful argument that certain pre-admission transfers were not made in anticipation of applying for Medicaid.  The settlement reduced the dollar effect of the penalty by more than $68,000. 

Nonetheless, the son declined to pay the attorney his requested fee of $7,606, arguing there was no contract as the attorney had failed to comply with Pennsylvania Rule of Professional Responsibility 1.5(b) that requires "the basis or rate of the fee" to be "communicated to the client in writing, before or within a reasonable time after commencing the representation."  The lawyer-son seemed to be arguing, at least indirectly, that the only fee he'd "agreed" to pay was a $500 up-front "consultation" fee.  

The court agreed with the defendant-son on the contract issue, but granted the full sum of the requested fees as "reasonable" under a theory of quantum meruit.  And that's where Pennsylvania's filial support law came into play to support the court's decision on the son's liability:

Mr. Salmon [the defendant/son] contended, however, that any claim in quantum meruit could be asserted only against his Father, and not against Mr. Salmon personally. The argument was that Father was liable to the Nursing Home for any services not reimbursed by Medicaid and Father was therefore the sole beneficiary of the substantial reduction in the penalty.  It is true that to establish a claim in quantum meruit against Mr. Salmon, Plaintiffs [the Elder Law attorney and his firm] were required to show that he benefited from Mr. Coates's services. . . . Plaintiffs clearly met that requirement, however, because Mr. Salmon himself would have been liable to the Nursing Home for the $86,786 penalty if it had not been successfully diminished by Mr. Coates.  

 

The doctrine of filial responsibility is codified in Section 4603(a)(1)(ii) of the Domestic Relations Code, 23 Pa. C.A. Section 4603(a)(1)(ii). . . .

 

This provision and its predecessor statute have been repeatedly cited as authorizing a suit by a nursing home or other medical provider to recover fees for the care of an indigent patient from the patient's adult child with the means to make payment. . . . It is thus clear that without the reduction of the penalty to a relatively trivial sum, Mr. Salmon would have been liable for -- or, at the least, substantially at risk of liability for -- the amount of Nursing Home fees denied by Medicaid.  

 

Further, the imposition of liability on Mr. Salmon in quantum meruit is fully consistent with principles of equity. The evidence clearly showed that Mr. Salmon, in engaging Plaintiffs' services, understood his obligation to pay for those services. . . . And, most significantly, in Mr. Salmon's letter of May 6, 2016, responding to Plaintiffs' bill, he disputed the reasonableness of Mr. Coates's fees and the quality of his services, but he never suggested that Plaintiffs were billing the wrong person. . . . [I]t was compelling evidence that Mr. Salmon understood his responsibility to pay Plaintiffs' legal fees and that his later contention that only his Father was responsible was a post hoc excuse for his unwillingness to pay.

The detailed, well-written opinion dated June 23, 2021 is available at the link above, and the case is on appeal to Pennsylvania's intermediate court of appeals, the Superior Court.  In Pennsylvania, trial judges have the opportunity to write their full opinion, rather than just their final decision, after a party has appealed the ruling and after that party has identified all claims of errors.  In my experience, a detailed, well-written Pennsylvania trial court opinion has a good chance of being affirmed on appeal. For an additional perspective on this case, see the Elder Law Answer summary here.  

New Report on Nursing Home Industry

The Center for Medicare Advocacy   recently released a new report,  Nursing Home Industry is Heavily Taxpayer-Subsidized.

I offer you this opening paragraph as a teaser to the 6 page report:

It is well-known that Government health care programs, Medicare and Medicaid, are the primary payers for nursing home care. The two federal programs paid facilities tens of billions of dollars for providing care to residents and were the primary payer for nearly 80% of residents.  Far less known is that, in addition to receiving these direct payments, the nursing home industry also benefits from the extensive subsidies, through income-related public benefit programs – Medicaid, food assistance, housing assistance, heating assistance, cash payments, tax credits, and more – that help support its underpaid staff. The Government subsidizes the nursing home industry by billions of dollars each year by providing needs-based public benefits and earned income tax credits to its many low-wage nursing home workers. (citations omitted in this quote).

The article discusses the facilities, the employees, salaries and public benefit programs, and issues this call to action: "Change is beginning to happen in wages for low-wage workers, but until all nursing home workers’ wages are raised to (at least) living wages and until all workers receive health benefits and paid time off, the Government will continue to subsidize nursing homes by billions of dollars by providing needs-based public benefits and earned income tax credits to the nursing home industry’s low-paid workers. ..." (citations omitted in this quote).

In the interest of full disclosure, I am on the board for the Center for Medicare Advocacy.

One Family's Caregiving Experience

Richard Kaplan, elite elder law professor and friend, sent me the link to this recent article from the Wall Street Journal, One Family’s Lessons Learned From a Decade of Caregiving.

As do many families, the spouse committed to caring for his spouse with dementia. 

The family learned much along their decade-long caregiving journey, about setting up trusts, getting help in the home and respecting each other’s decisions. They think about a few things they would have done differently. And they found that caregiving, while relentless and heartbreaking at times, can also be rewarding.

Being a family caregiver is one of the most difficult jobs and one that nearly everyone will have at some point. An estimated 42 million people in the U.S. provide unpaid care to those 50 and older, a 14% increase since 2015, according to the Caregiving in the U.S. 2020 report by the National Alliance for Caregiving and AARP.

Each family is different, and what works for one family may not work for another, says  ... [the] chief executive of the National Alliance for Caregiving. Family members don’t always agree about when to call in hospice or sell a house, but it’s important to be supportive, she says. “The hardest thing to say is, ‘It’s not the choice I would make, but I want to honor their choice.’ ”

The story is heartfelt, and compelling.  The caregiver spouse offers this advice as to what changes he would have made.

He would have gone to an elder-law attorney earlier to make sure their assets were in a trust that would better protect them from having to be spent down to qualify, if needed, for Medicaid’s coverage of long-term care costs.

And he would have bought a single-story patio home within walking distance of their church and shopping center when [his spouse] suggested it 20 years ago. “It was what [she] wanted to do, but I wanted the yard. My own little domain. I wish I would have,” he says. “Here I am now with this big house, by myself. I’ll probably reach a point where I can’t take care of it.”

Knowing how hard it is to provide hands-on care, and not wanting to be a burden, he recently told his daughters, “Just put me in a nice place. You don’t have to do what I did for mom. You don’t have to take me into your house. I don’t want that.”

I'm assigning this reading to my students.  Thanks Professor Kaplan!

Roundup on Nursing Home Articles

Starting off the month of June with another roundup of articles about nursing homes.

First, from the New York Times at the end of April, Cuomo Aides Spent Months Hiding Nursing Home Death Toll.

Then, also from late April, this article from Politico, Will the Nursing Home of the Future be an Actual Home?

Then, a recent report from the GAO, COVID-19 in Nursing Homes: Most Homes Had Multiple Outbreaks and Weeks of Sustained Transmission from May 2020 through January 2021 (the link takes you to the page with links for highlights, the full report, fast facts, and a podcast).

On another topic related to SNFs, as we approach hurricane season, this important report about facilities in Florida with emergency power backups.  See, generators by Florida county for ALFs and SNFs.

New Issue Brief on Medicaid Estate Recovery

Medicaid Estate Claims: Perpetuating Poverty & Inequality for a Minimal Return was released last month by the California Advocates for Nursing Home Reform (CANHR), Justice in Aging, National Academy of Elder Law Attorneys (NAELA), National Health Law Program (NHeLP), and Western Center on Law & Poverty.

Federal law requires state Medicaid programs to seek repayment of specified Medicaid benefits, even if the state would prefer not to seek such recovery. The Medicaid program’s claim is enforced against the heirs of now deceased persons who relied on Medicaid, forcing the heirs in many cases to sell a family home that otherwise would have been passed down. The burden of estate claims falls disproportionately on economically oppressed families and communities of color, preventing families from building wealth through home ownership, which has been historically denied to communities of color through discriminatory public policy. The burden also falls inequitably on families due to medical unpredictability – for example, because their family member developed Alzheimer’s Disease, needing months or years of nursing home care or equivalent home and community-based services. This unpredictability is exacerbated by inequities in our health care system that particularly harm lower-income and older adults of color. All these factors contribute to estate claim collections being unfair and societally counterproductive. Congress should amend Federal law to eliminate Medicaid estate claims. Alternatively, the law should be amended so that states have the choice of whether to use Medicaid estate claims, as recommended in a recent report to Congress by the Medicaid and CHIP Payment and Access Commission (MACPAC). (Citations omitted)

The full brief is available here.

Round up on SNF Articles

Still emerging is the COVID impact on the SNF model of nursing home care.  Take a look at these recent articles to note the trends.

1. Medicare requiring nursing homes to report weekly vaccination statistics.
2. Nursing Homes Must Educate, Offer Covid-19 Shots, HHS Says (1) and the corresponding interim rule, here.
3. How Vaccine Hesitancy Is Driving Breakthrough Infections in Nursing Homes.
4. Big Investors Push Nursing Homes to Upgrade Care and Working Conditions.
5. Covid Forces Families to Rethink Nursing Home Care.
6. Covid awakened Americans to a nursing home crisis. Now comes the hard part.

These are all worth the time to read. Stay tuned-there's no clear cut path yet.

Proposed Changes to the Provision of Long Term Care

Kaiser Health News recently provided an overview of the changes proposed by the Biden Administration to long term care.  Biden Seeks $400 Billion to Buttress Long-Term Care. A Look at What’s at Stake provides this overview:

The services in question. Home and community-based services help people who need significant assistance live at home as opposed to nursing homes or group homes.

  *  *  *  

The need. At some point, 70% of older adults will require help with dressing, hygiene, moving around, managing finances, taking medications, cooking, housekeeping and other daily needs, usually for two to four years. 

*  *  *

Medicare limitations. Many people assume that Medicare — the nation’s health program for 61 million older adults and people with severe disabilities — will pay for long-term care, including home-based services. But Medicare coverage is extremely limited.

  *  *  *  

Medicaid options. Medicaid — the federal-state health program for 72 million children and adults in low-income households — can be an alternative, but financial eligibility standards are strict and only people with meager incomes and assets qualify.

  *  *  *  

The article additionally reviews the impact on family caregivers and the workforce, questions about the Administration's proposal and some suggestions for reform.  Stay tuned; this isn't going to be a quick or easy journey.

State of SNFs Prior to Pandemic

WGBH, a PBS station, ran this story a bit ago.   New Studies Show Dire State Of Nursing Homes Even Before The Pandemic opens with a focus on staff turnovers and highlights recent studies:

The pandemic has shined a harsh spotlight on nursing homes. Despite less than 1% of the population living in nursing homes and longterm care facilities, they account for about a third of all COVID-19 deaths. Now, two new national studies show that, even before the pandemic, the nursing home industry was in a dire situation. The studies paint a picture of places where it is unappealing to work and risky to stay.

[T]he first national study of staff turnover in nursing homes before the pandemic, published this month in Health Affairs. The study found an extraordinarily high rate of staff turnover, with an average of over 100%.

“That means the average nursing home in the U.S. has their entire nursing home staff change over the course of the calendar year,” [said one study author]. “And we found that some nursing homes had turnover as high as 300%, suggesting the staff is turning over every four months.”

That doesn't necessarily mean that all employees leave during a year. A facility with 10 staff members could have 100% turnover if everyone leaves and is replaced by a new person or if one job is filled 10 different times because the new hires keep leaving.

The article also discusses private equity involvement in the long term care industry.

Will COVID Change the Future of Long Term Care?

The Wall Street Journal published this piece back in December. Covid Spurs Families to Shun Nursing Homes, a Shift That Appears Long Lasting explains the trend

The pandemic is reshaping the way Americans care for their elderly, prompting family decisions to avoid nursing homes and keep loved ones in their own homes for rehabilitation and other care.

. . .

The drop-off has persisted since spring, including at times when the virus’s spread was subdued. In the summer, when many hospitals were performing near-normal levels of the kinds of procedures that often result in nursing-home stays, referrals to nursing homes remained down.

Occupancy in U.S. nursing homes is down by 15%, or more than 195,000 residents, since the end of 2019, driven both by deaths and by the fall in admissions, a Wall Street Journal analysis of federal data shows.

The decline in nursing-home patients covered by Medicare, which provides payments vital to the homes’ business model, is even steeper. That has left the industry in precarious financial shape. The biggest U.S. nursing-home company said in August it might not have enough money to pay its obligations.

I always ask my students two questions when we cover the topic of nursing homes: 1.  do they believe nursing homes are important to our society for the provision of long term care? (they answer yes). 2.  How many of them want to  reside in a SNF at some point in their lives? (they answer no). 

Surveys have long shown many patients don’t want to go to nursing homes. The pandemic has made them even less popular, according to a September survey of adults 40 and older by AARP. Just 7% said they would prefer a nursing home for family members needing long-term care, and 6% said they would choose one for themselves. Nearly three in 10 respondents said the pandemic had made them less likely to choose institutional care.

The article notes that the SNF industry has already begun to pivot, and home health care agencies are expanding their services.  Medicare's changes to allow for more services in homes also help as some of the Advantage plans have already moved in that direction. The article provides some interesting anecdotes about some of the services available. It's past time for us to rethink how we provide long term care in this country.  Long past time....

A subscription is needed to access the full article.

Thanks to Professor Dick Kaplan for sending me this article.

Starting 2021 with Looking at Operation of SNFs

Happy 2021. Several articles have been published examining the pandemic's longer-term impact on SNFs. I wanted to point out two.  First, consider the Washington Post article about how SNFs are structured, Profit and pain: How California’s largest nursing home chain amassed millions as scrutiny mounted.

Instead of relying upon outside vendors, Brius pursued a business practice long used by a majority of for-profit nursing homes nationwide: paying related companies for goods, services and rent.

More than 70 percent of the country’s nursing home providers use operating funds to pay themselves through so-called related parties — companies they or their family members partially or wholly own. In 2018, Brius nursing homes paid related parties $13 million for supplies, $10 million for administrative services and financial consulting, and $16 million for workers’ compensation insurance, state records show. The homes also sent a total of $64 million in rent to dozens of related land companies.

The practice is legal and widely supported by the industry, which argues that related parties help control costs and limit financial liability. Watchdog groups counter that nursing home owners can reap excessive profits from public funds by overpaying their own companies. Related parties generally do not have to disclose profits, leaving regulators with little way to assess the financial gains of owners.

Covid has changed the "business as usual" model, it would seem, as the article notes that "scrutiny has mounted in recent months as the federal government delivered about $54 million to Brius homes in coronavirus relief aid, meant as a lifeline for providers struggling to protect residents amid an unprecedented health crisis that has killed more than 92,000 nursing home residents nationwide."  The Washington Post did an in-depth look at this SNF chain. The article details what the reporters discovered regarding finances and taxes. There are California groups that have called for the California legislature to revise the oversight of SNFs.  The article indicates that efforts may also be made at a federal level. This detailed article is well worth reading and I plan to assign it to my students, so they can have a better understanding of the structure of SNFs.

Next consider this opinion from the New York Times,, This Is Why Nursing Homes Failed So Badly.

The first coronavirus outbreak in the United States occurred in a nursing home near Seattle, in late February. Since then, the country has endlessly revised its hot spot map. Yet the situation in nursing homes and assisted-living facilities has only gotten worse: More than 120,000 workers and residents have died, and residents are now dying at three times the rate they did in July.

Long-term care continues to be understaffed, poorly regulated and vulnerable to predation by for-profit conglomerates and private-equity firms. The nursing aides who provide the bulk of bedside assistance still earn poverty wages, and lockdown policies have forced patients into dangerous solitude.

Fortunately... and maybe hopefully...., with the COVID vaccine and priority given to those who work and reside in SNFs, this won't be a story that continues in the same vein. But the author of this piece aren't telling us we will return to the prior way of things. "When the pandemic is finally history, we’ll need to deal with all of this: the staffing shortages, low pay and lack of accountability — the many ways we have failed residents, family members and staffers. The awful truth is that long-term care was designed to fail years before Covid-19."  Why is this? Various stressors combined push the need for change in how long term care is provided.  "Over the past few decades, the popularity of “aging in place,” combined with new medical technologies and longer life spans, has changed the nature of care for seniors and people with disabilities. Residents of the nation’s 15,400 C.M.S.-certified nursing homes are much older, sicker and poorer than they used to be."  The article mentions the health of the residents, low pay for employees, employees working jobs at different facilities as contributing to the crisis.

The author makes a number of suggestions for changing long-term care in the U.S.  and concludes with a call for action from the incoming administration

Most important, we must transform the way we think about long-term care — treating it not as human warehousing or the duty of underpaid women, but as an integral part of our medical system.

All of these changes are possible — and modest, really, given the magnitude of the emergency. By 2050, 19 million people will be 85 or older, and many will require help to live with comfort and a modicum of dignity. What we really need, for all Americans, is single-payer health insurance that covers quality long-term care. But short of that, Mr. Biden and Kamala Harris have a chance to make amends for the deadly failures of the current administration.

The COVID Crisis in One Florida LTC Facility

The Tampa Bay Times ran a profile of  a local long term care facility that experienced a significant COVID outbreak last spring.  Death at Freedom Square  is an in-depth story about the people who live and work at Freedom Square and the spread of COVID within that facility. The article provides detailed reporting (In fact the TBT refers to this story as a "project").  The article is written in a way that tells the story of the people impacted, which makes it a compelling--- and sad---- read.    

Nine months into the pandemic, the virus has killed more than 19,000 Floridians. About 40 percent of the deaths have been among senior care residents. In Pinellas County alone, more than 2 out of 3 coronavirus deaths are connected to nursing homes and assisted living centers.

Freedom Square, a 15-acre retirement complex built around a town square and a gazebo, was the early epicenter in Tampa Bay.

Of course, we all know that this is not the only facility that experienced a COVID outbreak, whether inside Florida or in other states. The human interest angle makes this a compelling read, but it also includes important information about the Florida responses and about the corporate structure for this facility.

The article is as gripping as it is saddening; the reporters use of the human interest angle helps remind us that we aren't talking about numbers---we are talking about people.

Read it!

The Business Side of SNFs

Maryland elder law attorney Morris Klein sent me a link to an article recently published in the Washington Post.  How government incentives shaped the nursing home business — and left it vulnerable to a pandemic explains

Federal money, through the Medicare and Medicaid systems, has long shaped the nursing home business — and in ways that left it completely vulnerable when the viral pandemic arrived in March.

For years, extra money has gone to pay for extra services, encouraging some nursing home owners to game the system and tempting unscrupulous operators to file false claims for reimbursement. In the recent past, the gold standard was physical and occupational therapy; now it’s respiratory care.

But stringent infection control, which might have kept the coronavirus at bay, has never been a revenue producer, even now during the pandemic. Similarly, there is no monetary incentive to hire more registered nurses, although studies suggest they have been crucial in minimizing covid-19 casualties in nursing homes.

According to the article, the fee for service model is centered on additional care that will bring in additional funds to the provider, "and one consequence is that employees who handle general care of residents — nursing assistants, primarily — rather than the specialty services are a low priority for operators. They are underpaid and in chronically short supply at nursing homes across the country."

The article includes specific resident stories during the time of COVID and compares the financials for SNFs from resident stays covered by Medicare and Medicaid.  When COVID rampaged, folks put off surgeries, which affected the bottom line of many SNFs, per the article.

The temptation of the funding system leads some facilities to cross the line. "Working in a system that requires nursing homes to decide what extra services a resident needs, then provide those services, then bill the government, tempts some operators to game the rules and a few to commit outright fraud. Patients can be pushed into higher-paying categories of need. Services can be billed that were never rendered."

The lengthy article gives a really good picture of the funding system, how it works, the oversight and the remedies available to redress wrongdoing. I'm recommending this article to my students.

Health & Income Security Gaps For Older Americans of Color

This is not a happy article for the day after Thanksgiving-but it is a darn important topic.  The Conversation published this article, Nearly two-thirds of older Black Americans can’t afford to live alone without help – and it’s even tougher for Latinos explains that

Older Americans who want to live independently face serious economic challenges. Half who live alone don’t have enough income to afford even a bare-bones budget in their home communities, and nearly 1 in 4 couples face the same problem.

Those numbers add up to at least 11 million older adults who are struggling to make ends meet, a new analysis shows.

The numbers are worse for older people of color. Dramatically higher percentages of Black, Latino and Asian older adults live on incomes that don’t meet their cost of living, even with Social Security. That can mean skipping needed health care, not having enough food, living in unhealthy conditions or having to move in with family.

These disparities often reflect lifelong disadvantages that add up as people of color encounter structural racism and discrimination that shape their ability to buy property and save for the future.

The authors used some data available about elders "to measure the true cost of living for older adults. It tracks expenses for housing, health care, transportation, food and other basics, county by county. We paired the index with state-level income data to determine the percentage of people who don’t have enough income to cover their cost of living." The results show that "disadvantages people of color face can extend through their lifetimes and can pass on to future generations."  Not only is income security an issue, so is health security "[s]ecuring and protecting health into later life is also more challenging for many people of color."

The results also showed state by state variations. The article concludes with various recommendations:

Today’s older adults who are struggling financially can’t go back, but there are several ways to help them now:

• Policies can promote affordable housing and affordable health care, which represent the biggest components of older Americans’ budgets.

• Governments can promote mechanisms that allow people to keep working into later life, which allows people to continue generating income and building wealth, and also delays drawing down other income sources such as pensions or Social Security benefits.

• Social Security and Medicare — the foundations of a secure retirement for millions of Americans — are essential for these groups. Older people of color rely more heavily than their white counterparts on Social Security and are at heightened risk when these programs are threatened.

• Making sure government assistance programs such as SNAP benefits for food and housing subsidies are accessible to the people who need them can also help. Ensuring access includes providing information in multiple languages and hiring outreach workers who understand the population’s needs.

Thanks to Professor Naomi Cahn for sending me the link to the article.