By Robert Mauterstock
The Kirkland Life Care Center is a nursing home northeast of Seattle, Washington. On February 10, 2020, the staff noticed that a respiratory illness was breaking out among residents. Within two weeks, two residents were sent to the hospital. By the end of the month Kirkland confirmed that they had their first coronavirus case. By mid-March, 81 of the 120 residents tested positive for the virus and 34 of them had died.
Kirkland can be characterized as the canary in the coal mine. According to the Wall Street Journal a survey of nursing homes, released June 1 by the Centers for Medicare and Medicaid Services (CMS), showed 25,923 resident deaths caused by COVID-19 and 449 deaths among facilities’ staff. The survey also found about 95,000 infection cases at nursing homes across 49 states, about a third of them among staff members.
What have we learned from Kirkland and nursing homes around the country?
- Nursing homes are very vulnerable to people bringing in the virus from the outside
- Nursing home residents are the most vulnerable population for COVID-19
- Nursing home residents are easy targets for the fast spread of the virus
- The death rate is very high among the elderly population. (According to the CDC, 8 out of 10 deaths reported in the U.S. are people over age 65)
Responding to what they learned from the experience at Kirkland, CMS on March 13 issued Guidance for Infection Control and Prevention of Coronavirus in Nursing Homes (Q50-20-14-NH) to quell the spread. Facilities were directed to restrict visitation of all visitors and all non-essential health care personnel except for compassionate care and end-of-life situations. These end-of-life visitors were restricted to a specific room and were required to disinfect their hands, wear PPE (personal protective equipment), and screened for a respiratory infection before entry.
As a result of this directive the only people allowed in nursing homes were health care workers and CMS regulators. There was no exception for residents seeking legal representation. Communal dining was eliminated. Alternative forms of communication were encouraged through specific staff identified by the facility.
Residents no longer had the ability to get wills, trusts, powers of attorney, and health care proxies signed and activated. There was no longer any oversight of elderly conditions by family members. Patients became extremely isolated, which often resulted in depression and other mental problems.
These changes did not affect people who employed home health care aides. There are over 800,000 people employed in the U.S. as health care aides serving over 1 million people. Monitoring of this interaction is left entirely up to the family and any guidelines established by agencies providing this service.
Legal Developments for Nursing Homes
Substantial legal developments have occurred that affect the nursing home industry. On March 6 the Federal Government enacted the Coronavirus Preparedness and Response Supplemental Appropriations Act of 2020. This act provided additional funding for the Centers for Disease Control and Prevention, the National Institute of Health, and the Public Health and Social Services Emergency Fund. It also expanded the use of virtual meetings (telehealth) with medical providers and waived the Medicare restrictions on virtual services.
On March 13, 2020 the president issued a Declaration of National Emergency, giving the Secretary of Health and Human Services the authority under section 1135 of the Social Security Act to temporarily waive or modify certain requirements of the Medicare, Medicaid, and State Children’s Health Insurance Programs. Florida was the first state, on March 17, to have an 1135 waiver granted. They were given more flexibility in the screening of healthcare workers and pre-admission screening for nursing home placement of patients. It also allowed facilities to be evacuated if necessary, with the ability to provide care in alternate locations. After Florida, over 40 states have also received 1135 waivers.
Normally, to qualify for skilled nursing facility (SNF) extended care services coverage, Medicare beneficiaries must meet the “3-day rule” before SNF admission. The 1135 waivers eliminated this requirement in crisis areas. It also states that the 100-day coverage period for rehabilitation under Medicare can be extended an additional 100 days without requiring a new benefit period.
On May 1 the CMS released new nursing home requirements for reporting COVID-19 data. Requirements include reporting information to the Centers for Disease Control & Prevention (CDC), and notification to residents, resident representatives, and families of either a single confirmed infection or a cluster of three or more residents or staff with a new onset of respiratory symptoms of the virus. Additionally, nursing homes must provide cumulative updates on a weekly basis indicating preventive measures the nursing home is providing to prevent or control the spread of COVID-19.
National Guard Assistance
In April, nursing homes across the country were overwhelmed by the number of residents who contracted COVID-19. States reached out to the National Guard to provide assistance. Nursing homes and providers were identified by the Department of Public Health and Human Services (DPH) for testing each morning and given to the medical teams. Each team typically visits three to four locations a day, resulting in more than 300 total tests administered on average per day.
With the help of the Guard, nursing homes have begun to be able to deal with the crisis. As of June 1, nursing homes and assisted living facilities in some states are now permitting in-person visits to residents with some restrictions. The visits must be pre-scheduled and held outside. Only two visitors are allowed at a time. All visitors must be checked for fever and respiratory symptoms and they must remain six feet from the resident and wear face masks at all times.
Impact of the COVID-19 Virus on the Future of Nursing Homes
More than two-thirds (68 percent) of Americans believe that they will be able to rely on their loved ones to meet their long-term care needs when they require help, but this belief may collide with the reality of dramatically shrinking availability of family caregivers.
According to an AARP study, in 2010 the caregiver support ratio was more than 7 to 1 for potential caregivers of supplying care to those in the high-risk years of 80-plus. By 2030, the ratio is projected to decline sharply to 4 to 1; and it is expected to fall to less than 3 to 1 in 2050, when boomers will be in the high-risk years of life.
If fewer family members are available to provide everyday assistance to the growing numbers of frail older people, more people are likely to need nursing home care. According to the U.S. Census Bureau, Current Population Survey, Annual Social and Economic Supplement, 1.3 million people now live in nursing homes in the U.S. With 60 percent of nursing home residents funded through Medicaid, the current cost to the U.S. is $41 billion per year.
In most states Medicaid support is only available to those residents in nursing homes. Families must place their elder in a nursing home before Medicaid will approve them and pick up the costs of their care.
The COVID-19 pandemic has made it clear that the current model for nursing homes is not working. Nancy LeaMond, AARP's chief advocacy and engagement officer states that “While the past decade has seen great health care advances, care for “the really sick and the really old” has been neglected. That has to change. Medicaid should be more focused on home- and community-based care. And Medicare has to cover home health care to a greater degree."
In Massachusetts where I live, the Medicaid program provides an option identified as the “Frail Elder Waiver” which provides the same support as the nursing home program but the elderly can remain at home.
PACE is another optional benefit under both Medicare and Medicaid for those who meet the requirements for nursing home care and many patients can continue home care while receiving services. PACE requires a fixed monthly payment from Medicare and Medicaid. Participants may have to pay a monthly premium, depending on their eligibility.
COVID-19 has also made it evident that Congress needs to develop new laws to increase infection control in nursing homes. “There needs to be a new level of accountability in how nursing homes put in place and monitor infection-control measures,” says Lori Smetanka, of the National Consumer Voice for Quality Long-Term Care.
The pay scale for healthcare workers in nursing homes has to improve. Many workers need to keep two jobs to meet their expenses. The average pay for caregivers is $13 an hour. And in many cases the homes are understaffed, requiring workers to cut corners to take care of all their patients.
New options need to be examined to provide care for patients needing nursing home care. The entirety of late life housing options, including assisted living care, home care, and nursing home care, needs to be reviewed. COVID-19 has made us painfully aware that we can’t ignore our elders. We must respond to this crisis with new bold ideas.
About the author
Bob Mauterstock is recognized as an expert in the areas of legacy planning, intergenerational communication and eldercare. He was a financial adviser to families in Connecticut for over 32 years. He is a Certified Financial Planner® and has written four books including Passing the Torch, Critical Conversations With Your Adult Children. With his partners, Annalee Kruger and Robert Powell, CFP®, he has created an eight-week Elder Planning Specialist training program which will be offered as an online course in September. Covering 12 critical topics it will include interactive case studies and guest lecturers. Learn more at www.plan4lifenow.com. You can reach Bob directly at firstname.lastname@example.org.