Policies and "Regulatory Failure" Caused COVID-19 Deaths in Nursing Facilities

Professor Challenges the Nursing Home Industry’s "Nursing-Home-As-Victim" Narrative

In an article published in the Georgetown Law Journal, Law Professor Nina A. Kohn challenges the nursing home industry’s narrative that nursing facilities are victims of COVID-19.  The industry successfully used this false narrative during the coronavirus pandemic to lobby for billions of dollars in additional federal funding as well as protections from legal liability.  In addition to the inadequate public health response to the pandemic, Kohn describes, “deliberate policy choices and regulatory failures that have shaped long-term care in the U.S. and enabled nursing homes to make choices that have long endangered the health and welfare of their residents.”  [Nina A. Kohn, “Nursing Homes, COVID-19, and the Consequences of Regulatory Failure,” Georgetown Law Journal, Vol. 110, p. 3 (Spring 2021).]

Professor Kohn describes four key factors:

1. Historical regulatory gaps (most significantly, the rules’ failure to require “sufficient nursing staff and an adequate ratio of staff providing resident care to residents receiving care”);
2. Under-enforcement of existing regulations (caused by state inspectors’ failure to identify quality of care problems or identifying them “as less severe than they actually are”);
3. States’ failure “to penalize violations and to ensure correction” (Most violations do not lead to any monetary fines; the Trump Administration intensified the problem of under-enforcement by shifting to per instance civil money penalties, among other changes); and
4. “Medicaid’s preferential treatment of institutional care relative to community-based care.” 

Kohn offers several regulatory reform options “that would better align nursing homes’ incentives with quality care:”

1. Strengthening enforcement of existing requirements by “improving the quality of the survey process to ensure that deficiencies are accurately identified and categorized,” “imposing monetary fines for a broader range of violations,” and applying enforcement to owners and operators, not individual facilities.
2. Linking payment to outcomes, such as enactment of “a robust pay-for-performance system.”  Kohn notes that the windfall payments to facilities during the pandemic have been “almost entirely devoid of conditions” for payment and “much of it may not have been spent on patient care.” 
3. Requiring facilities to provide at least 4.1 hours of direct care staff per resident per day or to adopt minimum staffing ratios or enacting a federal law to require facilities receiving Medicare or Medicaid reimbursement, or both, “to spend a threshold percentage of those funds – or a percentage of their aggregate revenue – on direct resident care (as opposed to spending it on administrative costs or simply pocketing it).” 
4. Eliminating Medicaid’s preference for institutional care. 

The full article is available at https://www.law.georgetown.edu/georgetown-law-journal/wp-content/uploads/sites/26/2021/04/Kohn_Nursing-Homes-COVID-19-and-the-Consequences-of-Regulatory-Failure.pdf.