Trump Administration Vows to Protect Elders in Nursing Homes from the Coronavirus Despite Pursuing Policies That Put our Elders at Risk

On March 9, 2020, the Trump administration explained how the federal government would be responding to protect airlines, the cruise industry and corporations with potential payroll tax cuts.  They also “raised the standards for every nursing home in America with regard to infectious disease” and are “deploying 8,000 inspectors in every state” to “focus exclusively on infection disease compliance at our nursing homes.”

However, the notion that the administration is going to advance better care in nursing homes flies in the face of their established policies, which have only put our most vulnerable elders at risk.  Consistent with their efforts to deregulate industries, last year the Trump Administration actually rolled back regulations aimed at preventing in infectious diseases in skilled nursing facilities (SNFs).  In other words, the administration had just lowered the standards dealing with infectious diseases control for nursing facilities.

The Trump administration had also promised to be tough on Medicare fraud.  Yet, the Department of Justice voluntarily dismissed one of the largest Medicare fraud cases ever filed against a nursing home chain, Ribik et al v. ManorCare, that implicated over a 500-million dollars in Medicare fraud.  (link: https://www.jeffdowney.com/dojs-dismissal-of-the-hcr-manorcare-fraud-case-demonstrates-an-underlying-policy-shift-in-the-current-administrations-fight-against-medicare-fraud/  ManorCare had been owned by the Carlyle Group, who has close ties to the administration. Interventions against nursing homes for Medicare fraud were common in the Obama administration, but prosecuting Medicare fraud has not been a priority for the Trump DOJ.

Nor has the Trump administration been interested in protecting the rights of our vulnerable elders.  Based on lawsuits alleging widespread neglect, SNFs sought to limit resident’s rights to sue for injury or wrongful death by requiring that patients sign mandatory arbitration agreements in which patients waived their civil rights to sue a nursing home in court of law. (https://www.jeffdowney.com/mandatory-arbitration-forcing-patients-to-waive-their-civil-rights-as-a-condition-of-receiving-medical-treatment).  In September 2016, the Obama administration prohibited this practice.  42 C.F.R. 483.70 (n).  Effective July 2019, this regulation was repealed by the Trump administration, which also decreased regulatory fines against nursing homes.

Given the lax regulatory enforcement in nursing homes and reduced fines, nursing homes are less accountable both civilly and administratively.  The Trump administration also changed the practice of fining facilities for each day they are out of compliance. The fine reductions occurred even as CMS issued financial penalties 28% more than under the Obama administration.

The blood test for the corona virus currently costs about $3,000.  The Trump administration has ignored questions about what will be done to facilitate testing for those without health insurance.  State officials in California, N.Y. and Vermont have ordered insurance companies not to charge residents who get tested and some insurers have said they will waive out-of-pocket costs.  However, that does not solve the problem for the uninsured.

On March 5th, Medicare put out a notice to remind Medicare recipients that Medicare B covers a test to see if you have Coronavirus.  Here’s a link.  https://www.medicare.gov/coverage/coronavirus-test?utm_campaign=20200305_gmd_prv_gal&utm_content=english&utm_medium=email&utm_source=govdelivery

“As an attorney representing elders who have been injured or neglected, I have seen firsthand the impact of Trump’s regulatory changes. Some nursing homes do not even respond to record requests from attorneys.  Rates for facility-acquired pressure wounds (also known as bedsores) and other adverse events, like fracture injuries, have risen under the Trump administration, although obtaining that data through traditional Freedom of Information Act requests is problematic under the Trump administration.  In short, quality of care has fallen victim to a lack of accountability,” explains Downey.

Nursing homes and assisted living facilities have implemented some guidelines encouraging hand washing, limiting large gatherings, discouraging physical contact and in some cases, screening visitors.   But given what is anticipated to be a significant spread of the disease among the elderly and the associated higher death rates within this vulnerable group, nursing homes are going to have to do more than publish guidelines and tell people to wash their hands.  Facilities need to start aggressively testing patients in facilities with symptoms and checking visitors to make sure they do not have symptoms or elevated temperatures. They need develop isolation protocols and plan how they will be caring for that segment of the population that ends up in isolation.   Isolating elderly, demented patients in their room can cause patients anxiety and, in some cases, psychological distress. Before these facilities start locking patients in their rooms, they need to figure out how they are going to meet their medical and psychosocial needs during this crisis.  One thing we can count on: the Trump administration will only make the problem worse.

The CDC published some strategies for reducing the spread of COVID-19 in nursing homes.  https://www.cdc.gov/coronavirus/2019-ncov/healthcare-facilities/prevent-spread-in-long-term-care-facilities.html  But without additional funding and resources, an overburdened long-term care system is not going to be able to address the severe challenges that will be presented by the Corona Virus.

For our region…here are several links that provide up to date information on COVID-19 cases.

Virginiahttp://www.vdh.virginia.gov/surveillance-and-investigation/novel-coronavirus/

Marylandhttps://phpa.health.maryland.gov/Pages/Novel-coronavirus.aspx

DChttps://coronavirus.dc.gov/

If you have questions about the coronavirus or if a loved one has been injured or neglected in a long-term are facility, contact the Law Office of Jeffrey J. Downey, P.C. for a free consultation.  Serving clients in Virginia, Maryland, and the District of Columbia.

The Law Office of Jeffrey J. Downey, P.C. (Tysons Corner)
8270 Greensboro Drive, Suite 810, McLean, VA  22102
Phone: 703-564-7318
Email: jdowney@jeffdowney.com

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