The Office of the New York State Attorney General (OAG) released a report on Jan. 28, entitled, “Nursing Home Response to COVID-19 Pandemic.” On its release, Richard Mollot, executive director of the Long Term Care Community Coalition (LTCCC) said, “This shocking yet unsurprising report must serve as a wake-up call that vulnerable residents and their families deserve better.” He added that many of the failures documented in this report had been going on for years and had only been exacerbated by the COVID-19 pandemic.

 

The report included the following preliminary findings.

 

A larger number of nursing home residents died from COVID-19 than New York State Department of Health (DOH) data reflected. There was a lack of compliance with infection control protocols that put residents at increased risk of harm during the COVID-19 pandemic in some facilities. Nursing homes that entered the pandemic with low staffing ratings, according to the U.S. Centers for Medicaid and Medicare Services (CMS), had higher COVID-19 fatality rates than those facilities with higher recorded CMS staffing ratings.

 

Insufficient personal protective equipment (PPE) for nursing home staff put residents at increased risk of harm during the COVID-19 pandemic in some facilities. Insufficient COVID-19 testing for residents and staff in the early stages of the pandemic put residents at increased risk of harm in some facilities.

 

The report found that the current state reimbursement model for nursing homes gives a financial incentive to the owners of for-profit nursing homes to transfer funds to related parties (ultimately increasing the nursing homes’ own profits) instead of investing those funds in higher levels of staffing and PPE.

 

Lack of nursing home compliance with the executive order requiring communication by nursing homes with residents’ family members caused avoidable pain and distress. Government guidance requiring the admission of COVID-19 patients into nursing homes may have put residents at increased risk of harm, in some facilities, and may have obscured the data available to assess that risk. Below is a summary of the recommendations included in the report.

 

• Ensure public, accurate reporting by each nursing home of the COVID-19 residents’ deaths, and those that occur during or after hospitalization, avoiding any double-counting of residents’ deaths at hospitals.
• Ensure nursing homes provide adequate care and treatment of nursing home residents during times of emergency.
• Nursing homes must comply with labor practices that prevent them from pressuring employees to work while they have COVID-19 infection or symptoms, while ensuring the homes are adequately staffed.
• Ensure direct care and supervision staffing levels are in a ratio of residents to Registered Nurses, Licensed Practical Nurses, and Certified Nursing Assistants, require that ratio to be adjusted based on average residents care needs, ensure the ratio is above the current level reflected at nursing homes with low CMS staffing ratings and ensure sufficient care for residents’ needs is reflected in their care plans.
• Enforce more transparency in for-profit nursing homes, including on financial transactions and financial relationships between nursing home operators and related parties, and on relatives of all individual owners and officers of such entities who have contractual or investor relationships with the nursing home.
• Ensure nursing homes invest sufficiently in effective training so staff can fully comply with infection control protocols and hold operators accountable for failure to have clinically appropriate policies in place and failure to effectively train staff to comply with them.
• Manufacture PPE to ensure sufficient supply for purchase by nursing homes. require nursing homes to keep a sufficient inventory of PPE for all staff to be able to follow infection control protocols.
• Ensure adequate COVID-19 testing is available to nursing home residents and employees and enforce the testing in accordance with DOH and the Centers for Disease Control and Prevention (CDC) evidence-based guidelines.
• Eliminate recently enacted immunity provisions that can provide financial incentives to for profit nursing homes that put residents at risk of harm. Examples include not using public funds to obtain sufficient staffing to meet residents’ care needs when it was needed, not purchasing sufficient PPE for staff, and not providing effective training to staff to comply with infection control protocols during pandemics and other public health emergencies.
• Ensure nursing homes communicate with family members of residents promptly, but not later than 24 hours of any confirmed or suspected COVID-19 infection and of any confirmed or suspected COVID-19 death.
• Increase staffing at DOH to ensure sufficient skilled resources for oversight, complaint assessment, surveys, inspections, and immediate responses to information requests from state agencies in support of health care and law enforcement efforts.
• Ensure nursing homes engage in thoughtful planning regarding post-mortem care needs and implement and train staff on policies for dignified care of the remains of deceased residents.
• Urge families to consult the CMS Care Compare online database (medicare.gov/care-compare), ask questions of nursing homes relating to staffing, policies, procedures, and recent and current COVID-19 infections of staff and residents, and obtain information relevant to their current or future long-term care decisions for their loved ones.
• Where possible, visit family member residents in person and through “window” visits and videocalls even if residents are unable to communicate, to provide emotional support and to enable observation of the residents’ physical appearance and condition.
• Ensure family members know to report suspected neglect or abuse to DOH and OAG.