CMS regulations called for nursing homes to plan and train for viral outbreaks
It is well known nursing home residents and staff have suffered the greatest number of casualties in America’s continuing failure to respond to the COVID-19 pandemic. What is less well known is that both the nursing home industry and the government knew that it was essential to prepare for a viral pandemic before COVID-19. When the pandemic struck in early 2020, almost none of them were prepared, leading to an estimated 68,000 deaths in nursing homes. In what has become a sadly familiar story, the reason for their failure is a combination of nursing home industry greed and lax enforcement by the government agencies tasked with regulating them.
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“The nursing home industry was well aware that a pandemic-level virus presented a major threat to their residents, and it was really just a question of when,” said Leah Barron, a founding partner at Brown & Barron, a Baltimore law firm, specializing in nursing home rights. “After Ebola and H1N1, it was pretty clear that the government would need to force nursing homes to prepare for the inevitable, or lives would be lost.”
On September 16, 2016, the Centers for Medicare and Medicaid Services (CMS) set requirements for all of the nursing homes it oversees, requiring emergency preparedness for natural and manmade disasters. It stated:
The Emergency Preparedness Final Rule sets out requirements for all providers and suppliers in regards to planning, preparing and training for emergency situations. The rule includes requirements for emergency plans, policies and procedures, communications and staff training.
The requirement calls for nursing homes to have a formal plan, including training, for a variety of emergency situations, especially those that require coordination with local and federal agencies, such as hurricanes. On February of 2019, a full year before the COVID-19 outbreak hit the U.S. (at a nursing home in Washington state), the CMS clarified that infectious diseases were included in its Emergency Preparedness:
CMS is adding “emerging infectious diseases” to the current definition of all-hazards approach. After review, CMS determined it was critical for facilities to include planning for infectious diseases within their emergency preparedness program. In light of events such as the Ebola Virus and Zika, we believe that facilities should consider preparedness and infection prevention within their all-hazards approach, which covers both natural and man-made disasters.
Toothless policy is bemoaned & ignored
When the CMS mandated emergency preparedness plans, the nursing home industry’s first response was to lobby the Trump administration to reconsider the new regulations. The American Health Care Association and National Center for Assisted Living (AHCA/NCAL), a trade association representing 13,000 skilled nursing facilities and assisted living communities, sent a letter to the Trump administration complaining that the new regulations would cause damage to nursing home profits and that Americans wanted the nursing homes left to regulate themselves. The letter said, “The American public has spoken and we look forward to working with you. Part of the public’s message was asking for less Washington influence, less regulation, and more empowerment to the free market that has made our country the greatest in the world.”
In November of 2017, the regulations took effect, and by March of 2020, inspectors had found more than 24,000 violations with regard to their emergency plans. According to research of public data conducted by Propublica, “the violations occurred in 6,599 facilities, equal to about 43% of the country’s nursing homes.” The inspectors were simply checking to ensure that a plan existed for the potential hazards, that an authority had been designated, and that staff were trained to execute the plan.
It is unclear whether inspectors interviewed staff members to ensure whether they reported participating in actual training. In ProPublica’s interviews of nursing home employees in New Mexico, the only training they received were fire drills.
It is reckless to assume that COVID-19 is a once-in-a-lifetime event. Epidemiologists predict that new and more virulent contagions will follow. We cannot expect the nursing home industry to invest in infection control preparedness unless they have a financial penalty for failing to comply. Relatively minor outbreaks like swine flu (H1N1) and major disasters like COVID have taught us that the most dangerous virus is the one that hits when we have failed to prepare.
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.