Several months into the COVID-19 pandemic that has gripped the United States, it is well established that hotbeds for spread of the disease are nursing homes and other assisted living facilities. Tight quarters holding vulnerable populations is precisely the kind of environment in which the novel coronavirus thrives. That fact is made all the worse when good hygiene and sanitation standards are not met.
Indeed, the importance of nursing homes meeting high sanitation standards was recognized by the federal government even before the current pandemic took hold of such facilities. On March 3, 2020, the Department of Justice (DOJ) and the Department of Health and Human Services announced the creation of the National Nursing Home Initiative (NNHI) [link to blog post: https://www.doescrimepay.com/2020/06/criminal-enforcement-risks-for-nursing-homes-during-the-covid-19-pandemic/]. The purpose of the NNHI was to pursue criminal and civil enforcement actions against nursing homes that provide “grossly substandard care.”
Eight months later, however, those promises to hold nursing homes accountable have proven hollow, according to new reporting from The Washington Post [link to article: https://www.washingtonpost.com/business/2020/10/29/nursing-home-deaths-fines/]. As part of the overarching initiative to improve the quality of nursing homes throughout the country, the Centers for Medicare and Medicaid Services (CMS) was to conduct a series of newly strengthened inspections to ensure 15,400 Medicare-certified nursing homes were abiding regulations meant to prevent the spread of communicable diseases. If a home failed its inspection, CMS could levy penalties, including fines up to $22,000 per day that a violation persisted.
The Washington Post found, though, that government inspectors deployed by CMS during the first six months of the pandemic cleared nearly 8 in 10 nursing homes of any violations of standards meant to contain the spread of disease. All told, nursing homes that passed inspection earlier this year had about 290,000 coronavirus cases and 43,000 deaths among residents and staff, The Washington Post found. And as for penalties imposed on those homes that were found to have violated safety standards, from January through August of this year, CMS imposed about $46 million in total fines, roughly half of what was imposed during the same time period last year.
Enforcement under the NNHI does not seem to have much more traction. What are believed to be the first criminal charges brought against nursing home management associated with the COVID-19 pandemic only came in late September and came from a state Attorney General’s office—not the Department of Justice—at that. Massachusetts AG Maura Healy announced [link to article: https://www.mcknights.com/news/nations-first-covid-19-criminal-charges-against-nursing-home-operators-filed-in-massachusetts/] that two leaders of a veterans’ home had been indicted on charges of causing or permitting serious bodily injury or neglect of an elder connected to the merging of two dementia care units that resulted in combining COVID-19-positive residents with asymptomatic ones. Seventy-six patients ultimately died from the disease.
Of course, the end of the pandemic is nowhere in sight and the likelihood that COVID-19 infections and deaths will continue to plague nursing homes is high. Despite little indication thus far that enforcement is sure to come, nursing homes would do well to heed the warnings of CMS and the DOJ that they are taking safety and sanitation standards seriously. Abiding such standards would be not only in the best interests of the nursing homes, but is vitally important in combatting the COVID-19 pandemic and saving American lives.