When the COVID history is written, future generations will wonder why the elderly in nursing homes were allowed to die by the tens of thousands. It will be argued that they were unlucky to be elderly and living in close quarters when such factors made them ripe targets for COVID-19, but that is not the full story. When we look back at the many mistakes that were made, we should never forget that our government reduced penalties on nursing home violations just prior to the pandemic. This act of malicious deregulation by the Trump Administration on behalf of the nursing home lobby was certain to encourage sloppy infection control practices from nursing homes, and it happened at the worst possible time.
The Centers for Medicare and Medicaid Services (CMS) is in charge of regulating and overseeing the nursing home industry. The CMS’s primary method of enforcing standards and quality control at nursing homes is through unannounced inspections and the financial penalties they charge to nursing homes for violations. These two essential regulatory tools of the CMS would be the targets of an intense lobbying effort by the nursing home lobby.
“When the Trump administration took over, the nursing home industry lobby had two items on their wish list: reduced fines and fewer inspections. They got both from the Trump Administration,” said Brian Brown, a founding partner at Brown & Barron, a Baltimore law firm that specializes in nursing home law.
Step 1: Reduce the Fines
The changes sought by the nursing home lobby had a combination the Trump Administration could not resist: It was sleazy influence peddling to corporate interests that could be dressed up as being pro-business deregulation, plus it would further Trump’s petty crusade to undo any Obama-era legislation. In 2017, the Trump administration had the CMS change its rules regarding fines, ending the Obama-era regulation that would fine the nursing home for each day it was out of compliance. The result, as analyzed by Jordan Rau of Kaiser Health News., meant that the average fine fell from $41,260 to $28,405, a whopping 31% drop.
Step 2: Get Rid of Surprise Inspections
In 2017, the nursing home trade association also tried to get Trump and the CMS to dismantle the practice of surprise inspections, claiming that it would reduce costs, but they were unsuccessful. In 2020, the nursing home lobby repeated its attack on surprise inspections, this time using the COVID pandemic as a cover story. The CMS did the lobby’s bidding, claiming that surveyors would temporarily switch from surprise inspections to focus on troubled or infected nursing homes. This of course was an empty promise. As of early June, only about 54% of those infection surveys had been completed nationwide.
Step 3: Provide Immunity from Lawsuits
Now the nursing home lobby is hoping that Trump and the GOP-controlled Senate can do them one more favor: shielding them from COVID-related lawsuits. Mitch McConnell, the Senate Majority leader, is insisting that any relief package for Americans devastated by the economic damage of the pandemic include the Safe to Work Act, a barely disguised gift of blanket immunity from any COVID-related lawsuits by employees or customers, regardless of negligence. The Safe to Work Act would complete the legislative trifecta of enabling deadly nursing homes before, during, and after the COVID pandemic.
“We’re staring down the barrel of another wave of nursing home deaths, and the Safe to Work Act would remove the nursing home industry’s only incentive to invest in infection control practices to protect its residents and staff,” said Leah Barron, a founding partner at Brown & Barron.
Well before the pandemic, it was common knowledge that nursing homes needed higher standards for infection controls to protect residents from routine viral outbreaks and that a pandemic-level virus was only a matter of time. Infection-control related violations are by far the most common infractions at nursing homes. In May of 2020, the Government Accounting Office reported that 82% of nursing homes had an infection-control-related infraction in one or more years. The changes made to the regulation of nursing homes by the CMS under Trump had the desired effect: to make it easier to violate the already low standards of safety at nursing homes.
Only time will tell the extent of the damage caused by the Trump Administration when it reversed years of stricter Obama-era regulations for nursing homes just in time for the biggest pandemic since 1918. The reduction of penalties at the behest of the nursing home lobby is emblematic of the entire Trump Administration and its two-pronged approach to the pandemic and governance in general: corrupt pandering to corporate interests and undermining any government instruments for public safety that get in the way.
Our attorneys at Brown & Barron, LLC focus on representing nursing home residents who have been neglected or abused. We know first-hand how these facilities function, and just how vulnerable residents are to injuries. If you believe you or a family member has suffered as a result of nursing home negligence, we invite you to contact our team as soon as possible to learn more about your rights and options.