By Professor Nina A. Kohn
Professor Nina Kohn has become a leading voice for reforming long-term care in the wake of the coronavirus pandemic. Her recent articles on regulating nursing homes and other forms of long-term care have been published in The Washington Post, The Hill, Georgetown Law Journal Online, and elsewhere. She has been quoted in more than 600 news stories in the past year, and has testified on long-term care issues before the New York legislature.
Also the Solomon Center Distinguished Scholar in Elder Law at Yale Law, Kohn is the author of Elder Law: Practice, Policy, and Problems (Wolters Kluwer, 2d ed. 2020). At Syracuse Law, she teaches torts, elder law, and trust and estates. This short article was originally published in Spring 2021 in Bill of Health, the blog of Petrie-Flom Center at Harvard Law School.
Between May 2020 and January 2021, 94% of US nursing homes experienced at least one COVID-19 outbreak.1 And nursing home residents—isolated from family and friends,2 dependent on staff often tasked with providing care to far more residents than feasible, and sometimes crowded into rooms with three or more people3—succumbed to the virus at record rates. By March 2021, nursing home residents accounted for a quarter of all US COVID-19-related deaths.
The poor conditions in nursing homes that have been exposed by the pandemic are symptomatic of long-standing problems in the industry.
Fortunately, as I discuss in the Georgetown Law Journal Online,4 there are a series of practical reforms that could readily improve the quality of nursing home care, in large part by changing the incentives for nursing home providers.
The Danger of Chronic Understaffing
A key problem exposed by the COVID-19 pandemic is the danger of chronic under staffing in nursing homes. Low staffing levels—and especially low levels of nursing staff 5—predict facilities’ inability to control COVID-19 outbreaks and avoid fatalities.6
The dangers of understaffing were an open secret long before the pandemic. Even before the pandemic, researchers had shown that most facilities lacked the staff necessary to avoid systemic neglect.7 Likewise, pre-pandemic nursing homes’ inspection reports provided ample evidence of facilities lacking the staff needed to care for residents, such as those needed to help residents eat without choking, maintain mobility, or simply stay clean. ProPublica’s database of nursing home inspection reports, for example, turns up scores of cases of residents with maggot-infested wounds and skin in the two years preceding the pandemic.8
Chronic understaffing doesn’t just result in bad care: it can be lethal.
For example, when staff members are not available to assist residents who need help to stand or walk, residents may fatally injure themselves attempting to get about on their own. Understaffing is also associated with abusive practices.
A 2018 Human Rights Watch report found that US nursing homes routinely over medicate residents with dementia to make them docile and easier to control.9 This practice can increase the risk of death and strip residents of their personalities—as one daughter put it, her mother became a “zombie.” Nevertheless, as a 2017 review found, understaffed facilities appear to use psychotropic medication as a “cost-saving alternative to hiring additional RNs.”10
Understaffing is commonplace because while federal regulations set expected outcomes for facilities, regulators do not hold nursing homes accountable for those outcomes. Instead, when nursing homes are found to have violated federal regulations designed to protect residents, they typically face no fine or other penalty; they are simply directed to correct the deficiency.
Therefore, unscrupulous providers can increase profits by short-staffing facilities. Indeed, private equity firms continue to buy low-quality nursing homes11 because of the profit such facilities can generate—especially when owners are willing to sacrifice resident safety to maximize profit.12
The Power of the Federal Wallet
To address this issue, federal regulators could change the way nursing home penalties are assessed and enforced, imposing more significant fines and using the full range of penalties that federal statutes already authorize. This includes not only monetary fines but also holds on new admissions and suspensions of payment.
Regulators also could require facilities to have minimum direct care staffing levels that accord with what researchers have found necessary to provide humane care (slightly over four hours per resident, per day).13
In addition, regulators could require facilities to use a substantial portion of their revenue to care for residents. For example, New Jersey has adopted legislation requiring nursing homes to spend 90% of annual aggregate revenue on direct resident care. This approach could prevent unscrupulous providers from pocketing funds needed for resident care.
The key will be to require financial transparency so that facilities cannot hide profit as expenses and to set spending minimums high (such as New Jersey’s 90% requirement and unlike the 70% threshold New York adopted as part of its 2021 Budget Bill).14
The federal government—the primary payer for long-term care services in the US—could use the power of its wallet to incentivize better care. It could pay nursing homes that provide high-quality care more than those that provide substandard care. Elsewhere in the US healthcare system, pay-for-performance is the norm. But nursing homes that provide excellent care are generally still paid the same as those that provide shoddy care.
“The good news is that, by exposing the dangers of the current system, the
pandemic could create an opening for these types of meaningful law reform.”
The federal government also could improve long-term care by fixing a fundamental market failure that it has created. The federal statute governing Medicaid requires states to cover long-term care services provided in nursing homes to Medicaid beneficiaries, but it allows states to choose whether to cover those services in more integrated settings.
States that wish to provide home and community-based services (HCBS) to Medicaid beneficiaries needing long-term care typically apply for a “Section 1915(c)” waiver from the federal government. Under this waiver program, states are not required to provide HCBS on equal terms with institutional long-term care services, but rather they may cap the number of beneficiaries served under the waiver and the cost of services provided.
The result is that most states have waiting lists for at least one type of Medicaid-funded HCBS care, and approximately three-quarters of states limit how many hours of care they provide to beneficiaries receiving services through an HCBS waiver program. This institutional bias could be eliminated by amending the underlying statute, as draft legislation being circulated by Michigan Congresswoman Debbie Dingell (D-Mich.) and a handful of US senators would do.15
But Is There an Appetite for Reform?
The good news is that, by exposing the dangers of the current system, the pandemic could create an opening for these types of meaningful law reform.
Unfortunately, the political response to COVID-19 provides a reason for skepticism about the extent of reform it will spark. At both the state and federal levels, policymakers’ primary response to concerns about COVID-19 transmission within nursing homes was not to protect nursing home residents, but rather to protect the nursing home industry.
As I outline in The Hill, roughly half the states in the US granted immunity to nursing homes amid the crisis (some even went so far as to grant immunity from criminal liability and from acts that would otherwise be construed as gross negligence).16 Similarly, the US Secretary of Health and Human Services used his authority under the Federal Public Readiness and Emergency Preparedness Act (the “PREP Act”) to bar state and federal claims against nursing homes that unreasonably administer or use infection “countermeasures” such as masks and testing.17
In addition, policymakers responded by waiving—and even eliminating in some cases—existing requirements designed to protect residents. The Centers for Medicare and Medicaid Services initially responded to the COVID-19 pandemic by waiving a series of regulatory requirements for nursing homes and suspending most enforcement actions. Arkansas even rolled back its minimum staffing requirements in response to industry lobbying.
That said, there are some promising measuring under consideration. For example, at the federal level, there is the Dingell proposal, as well as a Senate bill introduced by Pennsylvania’s senators that would expand the number of poorly performing nursing homes subject to additional inspections.18 Moreover, the Biden Administration has proposed an additional $400 billion (over eight years) for HCBS, which would help increase access to alternatives to nursing home care, although it would not eliminate Medicaid’s bias in favor of institutional care.
States also are considering reform. For example, proposed legislation pending in Rhode Island would require nursing homes to provide the 4.11 hours of care per resident, per day19 that research has indicated is necessary to avoid neglect (see footnote 13).
In short, policymakers interested in improving long-term care have a variety of straightforward options available to them. Accordingly—as I suggested in The Washington Post, examining the politics of nursing home reform20—the key question is not what can be done to fix America’s long-term care crisis. The key question is whether there is the political appetite to make the changes that are so clearly needed.
 “COVID-19 in Nursing Homes: Most Homes Had Multiple Outbreaks and Weeks of Sustained Transmission from May 2020 through January 2021,” US Government Accountability Office (May 2021).
 “Is Extended Isolation Killing Older Adults in Long-Term Care?” AARP (Sept. 3, 2020).
 “Black and Latino Nursing Home Deaths in Illinois Linked to Overcrowding,” WMAQ-TV (NBC Chicago) (April 30, 2021).
 “Nursing Homes, COVID-19, and the Consequences of Regulatory Failure,” Georgetown Law Journal Online Vol. 110 (Spring 2021).
 “Nurse Staffing and Coronavirus Infections in California Nursing Homes,” Policy, Politics, & Nursing Practice Vol. 21, No. 3 (August 2020).
 “Staffing Levels and COVID-19 Cases and Outbreaks in US Nursing Homes,” Journal of the American Geriatrics SocietyVol. 68, No. 11 (November 2020).
 “Registered Nurse Staffing Falls Short in Most Nursing Homes,” Skillednursingnews.com (March 15, 2018).
 “Nursing Home Inspect,” Propublica.org (May 2021).
 “’They Want Docile:’ How Nursing Homes in the United States Overmedicate People with Dementia,” Human Rights Watch (February 2018).
 Variation in Use of Antipsychotic Medications in Nursing Homes in the United States: A Systematic Review,” BMC Geriatrics Vol. 17, No. 1 (January 2017).
 “Private Equity Ownership Is Killing People at Nursing Homes,” Vox.com (Feb. 22, 2021).
 “Does Private Equity Investment in Healthcare Benefit Patients? Evidence from Nursing Homes,” NYU Stern School of Business (Nov. 12, 2020).
 “The Need for Higher Minimum Staffing Standards in US Nursing Homes,” Health Services Insights Vol. 9 (April 2016).
 State of New York, Budget Bill S.2507/A.3007 (Jan. 20, 2021).
 “Draft: A Bill to Amend Title XIX of the Social Security Act to Require Coverage of Home and Community-Based Services Under the Medicaid Program” Rep. Debbie Dingell (D-MI) (2021).
 “Nursing Homes Need Increased Staffing, Not Legal Immunity,” The Hill (May 23, 2021).
 “Guidance for PREP Act Coverage for COVID-19 Screening Tests at Nursing Homes, Assisted Living Facilities, Long-Term-Care Facilities, and Other Congregate Facilities,” US Department of Health & Human Services Office of the Assistant Secretary for Health (Aug. 31, 2020).
 US Congress (116th), Nursing Home Reform Modernization Act of 2020 S.4866 (October 2020).
 State of Rhode Island, Nursing Home Staffing and Quality Care Act S.0002 (January 2021).
 “Covid Awakened Americans to a Nursing Home Crisis. Now Comes the Hard Part,” The Washington Post (April 28, 2021).