Elder Law Prof Blog

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."

Why Doesn't Medicare Cover More?

Kaiser Health News published a story,  Why Doesn’t Medicare Cover Services So Many Seniors Need?  Noting that eye glasses, dentures, and hearing aids aren't covered under original Medicare, the story reports that "On Monday, Senate Majority Leader Chuck Schumer released an outline of a coming budget bill that includes a directive to the Senate Finance Committee to expand Medicare “to include dental, vision, hearing benefits.” The catch — all the Democrats in the Senate and almost all in the House will have to agree on the entire budget bill for it to become law."  But why haven't those been added to Medicare before now? "[I]n the 56 years since Medicare became law, only a few benefits have been added to the package, which was created to emulate a 1965 Blue Cross/Blue Shield plan. During the 1980s and ’90s some preventive care was added, like pneumonia vaccines and mammograms. Republicans spearheaded the addition of prescription drug coverage in 2003, when they controlled both Congress and the White House. But they decided to make that coverage separate from the program’s traditional benefit package."  The article details the hurdles in expanding coverage and asks, why now and why these items are proposed to be added.  The article suggests a couple of reasons, both of which involve politics to some degree. Hopefully the winner here will be the Medicare beneficiaries.

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.

 

Penalties for SNF Deficiencies Reinstated After Roll Back

I'm closing out the week with another post regarding SNFs.  This one came from a recent article from The National Consumer Voice on Quality Long Term Care,  which reported on the actions of CMS to roll back the prior administration's loosening of penalties for SNF deficiencies. CMS Reinstitutes Tougher Penalties for Past Nursing Home Deficiencies explains that subsequent to a lawsuit filed by them and others, CMS changed positions on penalties for deficiencies. The article notes that about 15 days ago, CMS rescinded the change in policy, "reinstituting stronger penalties for nursing home violations."  The notice of rescission is available here. The notice to State Survey Directors about the change is available here,  which notes CMS is returning to the position of having discretion to enter per-day penalties.

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.

Caregivers & Home Care Funding

You may recall that the President proposed an increase in home care funding. But, Biden's pledge to boost home caregiver funding excluded from infrastructure deal.

Because the federal government does not require states to provide these benefits for all those who qualify, nearly 820,000 older or disabled Americans were on state waitlists for Medicaid’s home- and community-based services in 2018, according to a Kaiser Family Foundation study published last year. Many rely on family members for their most basic needs, including bathing, getting dressed and taking medication. Without outside help, their family members often struggle to balance caregiving with work and face the enormous challenge of keeping their loved ones safe.

Amid the growing need, President Joe Biden vowed to eliminate these waiting lists during his campaign and originally proposed to inject $400 billion into these programs through the massive infrastructure bill currently under debate in Congress. Republicans, however, have blasted the effort to include “human infrastructure” in the bill, and Democratic leaders excluded the funding from the deal that the White House struck on Thursday with a bipartisan group of senators. Biden has pledged to pursue money for caregiving in a separate, far larger bill that could potentially pass with Democratic votes alone, but that is far from guaranteed.

The need is great and the wait is long, according to the article.

Without greater support, the number of vulnerable Americans who can’t access paid care at home will continue to rise, experts and advocates say, given the aging population, pandemic-fueled fears of nursing homes, and a growing shortage of workers, deterred by Medicaid’s low pay rates and tough working conditions. That means more families could be left scrambling to patch together care for their loved ones at home, not knowing if their number on the waiting list will come up or if they will be able to receive care when it does.

Add into the mix worker shortages and we are facing a critical situation.  Although not included in the infrastructure bill,   Democrats on Thursday introduced a bill "to expand eligibility and access to Medicaid home- and community-based services, helping states reduce waitlists and increasing pay and benefits for home health workers. Democrats can pass certain spending bills without Republican votes, but would need support from every member of their razor-thin Senate majority, and 10 Democratic senators have yet to sign on to the new home care bill."

Stay tuned.

HHS Inspector General Report on Medicare Beneficiaries' Deaths in SNFs

We all have heard the stories about the number of SNF residents dying during the pandemic. The Inspector General for HHS recently issued a report looking at the number of Medicare beneficiaries who died in SNFs during the pandemic, COVID-19 Had a Devastating Impact on Medicare Beneficiaries in Nursing Homes During 2020.

The executive summary explains:

Nursing home residents have been particularly affected by COVID-19, as they are predominately elderly, tend to have underlying conditions, and live in close quarters. However, data on the number of nursing home residents who were diagnosed with COVID-19 or likely COVID-19 have not been readily available, particularly for early in the pandemic. Nursing homes are not required to report cases and deaths that occurred before May 8, 2020.

This data snapshot provides objective, standardized data based on Medicare claims for all Medicare beneficiaries in nursing homes throughout the country. This data snapshot is the first in a three-part series. Subsequent work will address the characteristics of the hardest hit nursing homes and strategies used by nursing homes to confront the challenges of the COVID-19 pandemic.

WHAT WE FOUND

• Two in five Medicare beneficiaries in nursing homes were diagnosed with either COVID-19 or likely COVID-19 in 2020.
• Almost 1,000 more beneficiaries died per day in April 2020 than in April 2019.
• Overall mortality in nursing homes increased to 22 percent in 2020 from 17 percent in 2019.
• About half of Black, Hispanic, and Asian beneficiaries in nursing homes had or likely had COVID-19, and 41 percent of White beneficiaries did.
• Understanding the pandemic's effects on nursing home residents is necessary if tragedies like this are to be averted.

Note that this is the first of 3 reports on the topic.  The full report is available here.

In Search of the Abracadabra for Alzheimer's Medicines

I used to follow (and regularly blog about) new drugs in the pipeline for Alzheimer's treatment.  Then I realized that the drugs weren't making it to the market place.  While attending medical programs about R & D, I learned that it was going to be tough to find any magic treatments, much less "cures."

To it was interesting to read this week that for the first time in some 18 years,  the FDA has approved use of a new drug, with the marketing name  Aduhelm and the generic name Aducanumab  (kind of sounds like abracadabra, doesn't it?), manufactured by Biogen.   

Aduhelm is described by the FDA as an "amyloid beta-directed antibody," which was approved under an "accelerated approval pathway," to give "patients suffering from a serious disease earlier access to drugs when there is an expectation of clinical benefit despite some uncertainty about the clinical benefit of the drug." 

But there is a lot of sobering news accompanying this announcement:

First, the mechanism of delivery:  monthly intravenous infusions, which means a clinical visit lasting at least an hour per infusion.

Second, Biogen's own predictions about cost:  a "list price" predicted to average  $56,000 per year per patient!  Yikes.

Third, the critical response from a range of experts in relevant research, pharmacy and health fields about the approval process to date, indicating a history of interruptions in the clinical trials when preliminary results showed little to no evidence of clinical benefit. 

Fourth:  the need for assessment before the first infusion with an MRI, plus recommended follow up MRIs prior to the 7th and 12th infusions, to assess the potential for ARIA-H, which are amyloid-related abnormalities, also potentially associated with edema in the brain.

Here are some links (and I'll try to keep this list up-to-date as new info comes in):  

Draft Evidence Report dated 5/5/2021 from the Institute for Clinical and Economic Review on "Aducanumab for Alzheimer's Disease: Effectiveness and Value." 

Letter from American Geriatrics Society dated 6/2/2021 to FDA expressing concern about "premature" approval

STAT's commentary, dated June 7, 2021 on FAQs: What You Need to Know about the Alzheimer's Drug Aduhelm

New York Times, dated June 8, 2021:  FDA Approves Alzheimer's Drug Despite Fierce Debate Over Whether it Works

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.

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.

Help for Unpaid Caregivers?

Will the administration provide support for family caregivers?  This was the subject of an opinion published in the New York Times. 50 Million Americans Are Unpaid Caregivers. We Need Help. focuses on the author's personal experiences as a family caregiver. Consider this: "It’s often noted that the United States is alone among rich nations in not providing maternity leave; support for child care is likewise abysmal. Similarly — but often more invisibly — we leave millions of caregivers with little or no support in managing the financial, logistical and emotional difficulties of helping ailing parents, spouses and children."  Referencing the pledge made during the campaign, the author notices the benefits:

The changes would help not just caregivers like me; what’s good for caregivers also benefits those who need assistance. Expanding home care can keep frail elderly people out of nursing homes, the drawbacks of which have been painfully exposed by the pandemic. Easing financial strains and burnout for caregivers can mean better, more compassionate treatment, which in turn can improve quality of life and outcomes for our most vulnerable citizens.

SNFS and Vaccination for COVID

Since it's been a few weeks since the vaccine rollout, and with residents of SNFs in the top priority for vaccination, how successful has it been? I have posted a few articles previously, and I wanted to pass on a few more.

In my geographic area, The Tampa Bay Times reported, Tampa Bay nursing homes have all offered coronavirus vaccines to residents and staff. Note here in the headline "offered."  Some folks may refuse to get the vaccine, whether residents or staff. Which brings me to two more articles.

Inside a Nursing Home as Vaccine Arrives: ‘I Hope Everybody Takes It’ is an interesting look at a day inside a SNF when folks from Walgreens were onsite to vaccinate folks.

The approval of Pfizer’s novel coronavirus vaccine in December brought hope to the residents and staff members at Staten Island’s Clove Lakes Health Care and Rehabilitation Center. The facility was hit hard: It lost more than 40 residents to the virus last year and struggled financially as the number of new residents plummeted, along with their income.

The employees and residents had counted on the vaccine to help them return to some semblance of their old routine — including family visits — and were determined not to waste any time. Weeks before a single person got the vaccine staff had been preparing for the rollout, contacting residents and families by mail, email, robocalls and social service workers to reassure everyone about its safety and effectiveness.

And although the Tampa Bay Times reported the successes of vaccine availability in our area, that is not the case elsewhere.  The New York Times also reported a few days ago, Frustrations Boil at Pace of Vaccinations at Long-Term Care Facilities

CVS and Walgreens, which are largely responsible for vaccinating residents and workers in long-term care facilities, are on track to make at least initial vaccination visits to nearly all nursing homes they are working with by Jan. 25. The two pharmacy chains have already given out more than 1.7 million vaccine doses at long-term care facilities.

But the progress is uneven across the country and not nearly as comprehensive for different types of long-term care. For example, thousands of assisted living facilities — for older people who need less care than those in nursing homes — do not yet even have an appointment for their first visit from the pharmacy teams, in large part because states have given such facilities lower priority in their vaccine-distribution plans.

The length of time it is taking is causing some states to come up with alternate plans. The article stresses the critical nature of the situation. 

[T]he rapidly spreading virus continues to decimate nursing homes and similar facilities. The virus’s surge since November has killed about 30,000 long-term care staff and residents, raising the total of virus-related deaths in these facilities to at least 136,000, according to a New York Times tracker. Since the pandemic began, long-term care facilities have accounted for just 5 percent of coronavirus cases but 36 percent of virus-related deaths.

Also noted in the Times article, there are "other things are slowing the campaign. A significant number of long-term care workers have balked at receiving the vaccine. The virus’s spread is also delaying the process. People should not be vaccinated while they still have Covid-19 symptoms or are isolating, according to the C.D.C."

 

COVID, Vaccination Confusion & More

There are so many stories being published about COVID and the impact on elders, I'm just going to include a few in this post.

I had mentioned a few weeks back that some states were circumventing the CDC recommendation on the second priority tier for vaccination. Florida is among those states, choosing to vaccinate those 65 and older. In case you weren't aware, Florida has a lot of folks 65 and older. And not enough vaccine doses for everyone. When the second batch of vaccines arrived, stories appeared regarding confusion and inefficiencies regarding signing up to receive the vaccine. (I and several of my friends can tell you first-hand accounts of this). As the New York Times described it,  ‘It Became Sort of Lawless’: Florida Vaccine Rollout Turns Into a Free-for-All.  It's not just Florida having this problem, as noted in  Online Sign-Ups Complicate COVID-19 Vaccine Rollout For Older People.

We need to remember that not everyone has access to a computer or reliable internet-so are we leaving out an entire group in that 65 and over category eligible for the vaccine?  With states left to administer the programs,  Vaccination Disarray Leaves Seniors Confused About When They Can Get a Shot.

It seems to me that COVID news has been pushed off the news as the #1 story, replaced by the insurgency (rightfully so) but we shouldn't lose focus on the increasing spread of the pandemic. So we know things are going to get worse, before they get better---we haven't seen the surge from the Christmas holidays, but it's coming and very soon.  Just look at what happened at Thanksgiving:  COVID Kills Over 12,000 Nursing Home Residents in Weeks Surrounding Thanksgiving.

Finally, if you don't read any of these articles, read this one. COVID-19 And Congress Have Left The Senior Citizen Safety Net In Tatters explains the impact the pandemic and the economy is having on senior centers.

Whew.

Medicare Drug Out of Pocket Costs

Kaiser Health News ran an article (before Congress recessed), Seniors Face Crushing Drug Costs as Congress Stalls on Capping Medicare Out-Of-Pockets.

Many Americans with cancer or other serious medical conditions face ...  prescription drug ordeals. It’s often worse, however, for Medicare patients. Unlike private health insurance, Part D drug plans have no cap on patients’ 5% coinsurance costs once they hit $6,550 in drug spending this year (rising from $6,350 in 2020), except for very low-income beneficiaries.

President-elect Joe Biden favors a cap, and Democrats and Republicans in Congress have proposed annual limits ranging from $2,000 to $3,100. But there’s disagreement about how to pay for that cost cap. Drug companies and insurers, which support the concept, want someone else to bear the financial burden.

That forces patients to rely on the financial assistance programs. These arrangements, however, do nothing to reduce prices. In fact, they help drive up America’s uniquely high drug spending by encouraging doctors and patients to use the priciest medications when cheaper alternatives may be available.

The article examines the cost of specialty drugs and reviews the results of a 2019 Kaiser survey on the issue.  The high cost of such drugs may impede a person's ability to retire, the article noted. The article reviews the situation of some folks who have had to make treatment decisions based on costs and some choose to not have a prescription filled due to the costs. 

There is help from some non-profits, but beneficiaries may not know about them. "The high drug prices and coverage gaps have forced many patients to rely on complicated financial assistance programs offered by drug companies and foundations. Under federal rules, the foundations can help Medicare patients as long as they pay for drugs made by all manufacturers, not just by the company funding the foundation."

Stay tuned to see if Congress takes up the issue when it reconvenes. 

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.