COVID-19 in America’s Nursing Homes
“COVID-19 in America’s Nursing Homes,” that is the subject of today’s ACTEC’s Trust and Estate Talk.
This is Ed Beckwith, ACTEC Fellow from Washington D.C. The safety of the most vulnerable among us is of key concern to all of us. To tell us more about this important topic, we will be hearing today from ACTEC Fellow Professor David English of Columbia, Missouri. Welcome, David.
Thank you, Ed. I am going to summarize today presentations I gave to the ACTEC Elder Law Committee in June and October of 2020. When we first became aware of the COVID-19 pandemic, toward the beginning of the year, it became apparent quite quickly that residents of nursing homes were being impacted more than others. In fact, as of October 21, 2020, which is two days before my presentation, the New York Times, which keeps track of the data, estimated that 84,000 residents and staff of long-term care facilities had died of COVID-19. And because, in late October, there were a total of 220,000 deaths, close to 40 percent of the deaths from COVID-19 have occurred at long-term care facilities. The number is staggering when you take into account that the number of nursing home residents in the US, as a whole, is around 1.3 million.
So, why have nursing home patients been so vulnerable? Well, of course, many of them are in a fragile physical condition. So, if they contract COVID-19, their risk of death is much higher than in the general population. The real issue is why have so many residents of nursing homes contracted COVID-19? I am going to present five reasons, which is not only me, but comes out of a federal commission report I will talk about in a minute.
Why are Nursing Home and Long-Term Care Facilities Vulnerable to COVID?
One is the lack of infection control. The General Accountability Office, which is an arm of Congress, estimated that prior to the pandemic approximately 388,000 nursing home residents died yearly from infections. And that is not a typo.
During the period of the pandemic, lack of personal protective equipment, the PPE, has been a continuing issue in long-term care facilities, and it still is, even in late October.
The design of nursing homes is not conducive to preventing infection. Many nursing homes are constructed like college dormitories. They have long hallways. They have large common areas where individuals congregate. I will talk in a few minutes about an option or alternative to that.
Fourth issue is staff shortages. This is not a new issue. This goes back decades. It is not only a shortage of human help but also shortage of particular trained staff, particularly trained on issues of infection control.
And the final reason is inadequate testing. The Center for Medicare and Medicaid Services is the regulatory agency for nursing homes; and until relatively recently, their guidance on testing was advisory only to facilities.
2020 Responses to Infection Issues at Nursing Homes and Long-Term Care Facilities
So, what are some of the responses that have been taken that hopefully will provide some help on this issue as we go forward? Number one, the CARES Act, which was enacted by Congress earlier this year in 2020, contains funding to address COVID-19 in nursing homes. The Trump administration on July 22nd announced an initiative of up to 5 billion dollars for training on infection control; hiring of additional staff, particularly staff dealing with infection control; and assistance with technology, so that residents can stay in touch with their family because that’s been another major by-product – is social isolation when nursing homes went into lockdown. Then finally, to receive this federal funding, the nursing homes are required to test their staff at least weekly, if the community positivity rate is more than 5 percent, which at least currently describes most of the United States. Unfortunately, that is still rolling out and testing is not yet being done on a consistent basis across the country, but it is starting.
A second recent development that is quite important is the ability to visit your loved one who is in the facility. In March, many facilities went on lockdown, and so families were no longer allowed to visit, even at the patient’s end-of-life from COVID-19 or some other condition. The guidance from the Center for Medicare and Medicaid Services or CMS deals with outdoor visitation and also visitation indoors, not as a general matter; but it opens the door for visitation for what is called compassionate care, which will be care at the end-of-life. I mentioned several reasons why the COVID-19 pandemic has been so serious in nursing homes, and there is now a federal report that is worth reading if you are interested in this.
Corona Virus Commission on Safety and Quality in Nursing Homes
In April, the Trump administration appointed a commission. It is called the Coronavirus Commission on Safety and Quality in Nursing Homes. If you Google that, you will get their report (Coronavirus Commission on Safety and Quality in Nursing Homes Report), which was published on September 16th. The report recognizes the problems that I discussed, some of the reasons for the seriousness of the pandemic in nursing homes, but it does recommend ways of responding. It is a long report, so I am going to highlight, I’ll call the key four.
One is, we need a national testing strategy for long-term care facilities. Currently, it is being addressed very much on a state-by-state ad-hoc basis. CMS should assume responsibility to ensure supply of PPE for all long-term care facilities. According to the federal commission, should have a three-month supply. More support should be provided for staffing, particularly staffing not by custodial aids, but by RNs. Finally, the nursing homes should employ infection control specialists, who have the ability to educate other staff, and that may be the most effective or important of the recommendations.
Longer term, we need to think about the hallway that nursing homes are constructed with and how we pay for long-term care in this country. So, our current federal funding model is slanted heavily toward providing assistance for Medicaid nursing home reimbursement. At least in some states, funding is starved for community support that can keep people out of nursing homes. To me that is an important long-term objective.
Secondly, the design of nursing homes. An example of a different design is the green house movement, which are facilities that do not have 100 residents or 50 residents. They are basically group homes with 10 to 12 residents. Each resident has a single room and also a private bath; and the private bath — very important to prevent the spread of infection.
Of course, lawyers have clients who have issues now. Some people listening to this podcast may have family members currently in long-term care facilities. So, what sort of practical steps can you take now? Time doesn’t allow me to go through those practical steps, but I am going to quickly mention the name of four organizations who each have websites devoted to the COVID-19 issue. If you simply Google these names, you will have links to the websites with a huge amount of not only legal-type information, but consumer-type recommendations.
David, thank you for alerting us to this truly life and death concern and providing us with such practical and helpful guidance.
This podcast was produced by The American College of Trust and Estate Counsel, ACTEC. Listeners, including professionals, should under no circumstances rely upon this information as a substitute for their own research or for obtaining specific legal or tax advice from their own counsel. The material in this podcast is for information purposes only and is not intended to and should not be treated as legal advice or tax advice. The views expressed are those of speakers as of the date noted and not necessarily those of ACTEC or any speaker’s employer or firm. The information, opinions, and recommendations presented in this Podcast are for general information only and any reliance on the information provided in this Podcast is done at your own risk. The entire contents and design of this Podcast, are the property of ACTEC, or used by ACTEC with permission, and are protected under U.S. and international copyright and trademark laws. Except as otherwise provided herein, users of this Podcast may save and use information contained in the Podcast only for personal or other non-commercial, educational purposes. No other use, including, without limitation, reproduction, retransmission or editing, of this Podcast may be made without the prior written permission of The American College of Trust and Estate Counsel.
If you have ideas for a future ACTEC Trust & Estate Talk topic, please contact us at ACTECpodcast@ACTEC.org.
© 2018 – [wpsos_year] The American College of Trust and Estate Counsel. All rights reserved.
Latest ACTEC Trust and Estate Talk Podcasts
“An Analysis of Wyoming’s Asset Protection Provisions,” that’s the subject of today’s ACTEC Trust and Estate Talk. Transcript/Show Notes I’m Stacy Singer, an ACTEC Fellow from Chicago. Wyoming has had recent changes to its state law primarily related to asset...