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Slashed Nursing Home Inspections Draw Ire of Congress, Attorneys

May 8, 2020, 9:45 AM

A federal directive to suspend most nursing home inspections during the Covid-19 pandemic is drawing scrutiny from lawmakers, attorneys, and patient advocates who say it’s fueling poor resident care and an explosion of infections and deaths.

The Centers for Medicare & Medicaid Services has halted most on-site, non-emergency inspections so nursing homes and inspectors can devote more time and resources to infection control and other patient safety issues. The agency is urging facilities that aren’t being inspected to use a self-assessment survey to measure their compliance with state and federal guidelines.

The surveys have led states to schedule more than 7,000 nursing home investigations since March, the agency said. But some attorneys say this type of self-reporting allows struggling nursing homes—including those with past infection control problems—to operate with limited oversight during a deadly health threat that’s ravaging their facilities.

“There’s literally no set of eyes on the ground in most of these places,” said Michael Dark, staff attorney with California Advocates for Nursing Home Reform. “And until they actually start suiting up and sending inspectors into these facilities, to check on things like understaffing and infection control, what’s already a horrible situation is going to get much worse.”

More than 10,000 nursing home residents and staff members have died from Covid-19, the illness caused by the coronavirus, and nearly 51,000 have been infected with the virus at more than 4,000 facilities in 36 states, according to an analysis of state data by the Kaiser Family Foundation.

Self-Regulating

With a shortage of protective gear and concerns about inspectors transferring the virus among facilities, many of the nation’s roughly 8,200 state inspectors are conducting business by phone, reserving in-person facility visits for the most serious situations.

It’s good policy during the pandemic, said Morgan Katz, an assistant professor at the Johns Hopkins University School of Medicine who specializes in infectious diseases. Bringing more inspectors into facilities during the crisis “would just add so much undo stress that really wouldn’t be helpful,” she said.

But some attorneys say that without the possibility of in-person visits, facilities are likely to cut corners. In late March, the CMS reported that 36% of nursing home failed to meet proper hand-washing standards for staff while 25% didn’t meet requirements for personal protective equipment.

“When nursing homes, or any other profit-driven entity, is free from the fear of regulators coming in to make sure they’re doing what they’re supposed to be doing, they’ll get lax,” said Brian Brown, a founding partner at Brown & Barron LLC in Baltimore whose practice focuses on nursing home abuse.

Reps. Conor Lamb and Mike Doyle, both Pennsylvania Democrats, on May 5 urged the CMS to increase nursing home inspections. Their request comes amid concerns over the practices of the Brighton Rehabilitation and Wellness Center in Beaver, Pa., where more than 60 residents died from Covid-19 and more than 300 tested positive for the illness.

That facility is facing a lawsuit for allegedly conducting unauthorized medical experiments on its residents.

“The current CMS inspection cycle of 9-15 months is inadequate to meet the challenges presented by COVID-19,” Doyle said in a statement. “We need to ensure that we are doing everything we can to protect our seniors, including increasing the frequency and intensity of inspections.”

But virus outbreaks aren’t the “result of shortcomings or failings” of nursing home workers, said Beth Martino, spokeswoman at the American Health Care Association, the leading nursing home industry trade association. Rather, they reflect the prevalence of the virus in the wider community, she said in an emailed statement.

“Instead of assigning blanket, unfounded criticism combined with calls for a punitive approach with inspections and fines, we need help getting testing, supplies and staffing resources,” she said.

The CMS said its policy of suspending non-emergency inspections is based in part on recommendations from the Centers for Disease Control and Prevention and real-time data from areas with high rates of Covid-19 infections.

“CMS is monitoring the COVID-19 situation closely, and will communicate any changes to our guidance as soon as possible. Until then, the survey prioritization focusing on cases of immediate jeopardy and infection control will remain in effect,” the agency said in a statement.

Brighton Lawsuit

The Brighton facility is facing claims that the state health department’s failure to inspect nursing homes allowed the facility to conduct unauthorized drug research on residents.

The complaint, filed April 28 in the U.S. District Court for the Eastern District of Pennsylvania, alleges the facility didn’t get proper consent before giving some residents a five-day trial of hydroxychloroquine, the malaria drug that President Donald Trump has touted as a promising Covid-19 treatment.

The named plaintiff, a daughter of one of the residents, claims the study wasn’t approved by a data safety monitoring board, which analyzes patient safety and a treatment’s effectiveness during clinical trials.

“It is unlikely that such egregious conduct could have occurred had inspections not been halted,” according to the complaint.

“If the Department of Health was doing its job and conducting the inspections it was supposed to be doing, then the chance for this type of thing to occur would be much, much less,” said Theresa M. Blanco, counsel for the plaintiffs and an associate attorney with Shrager & Sachs in Philadelphia.

The Pennsylvania Department of Health declined to comment about the lawsuit. The nursing home didn’t respond to requests for comment.

In a May 4 statement, Pennsylvania state Rep. Robert Matzie (D) said he plans to introduce legislation that would force the state to immediately resume inspections of all state nursing homes. Matzie said he has also asked state attorney general Josh Shapiro to investigate whether Brighton “performed drug experiments on patients under the guise of clinical trials.”

Meanwhile, Rep. Jan Schakowksy (D-Ill.), introduced legislation (H.R. 6698) on May 5 that would require states to increase inspections, testing, and other infection control measures. It would also require a “surprise inspection” within three days of a serious patient safety complaint arising at a nursing home.

Sens. Cory Booker (D-N.J.), and Richard Blumenthal, D-Conn.), are expected to introduce companion legislation in the Senate.

To contact the reporter on this story: Tony Pugh in Washington at tpugh@bloomberglaw.com

To contact the editors responsible for this story: Fawn Johnson at fjohnson@bloomberglaw.com; Alexis Kramer at akramer@bloomberglaw.com

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