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A Statement from the Center for Medicare Advocacy and the Long Term Care Community Coalition

March 19, 2020—At least twenty-six residents at Life Care Centers at Kirkland have died of the coronavirus and many more residents and staff at the Washington State nursing facility are showing signs of the illness. Why have these medically fragile residents died at a health care facility that is supposed to provide safe and effective care to frail, medically compromised people? One troubling reason: Regulations for infection control are ignored and there is, typically, little enforcement when facilities violate them.

In October 2016, the Centers for Medicare & Medicaid Services (CMS), the federal agency that regulates nursing facilities, updated the regulations that govern nursing homes receiving public reimbursement through the Medicare and Medicaid programs, a category that includes nearly every nursing facility in the country. Citing statistics that residents of nursing facilities and other institutional settings develop millions of infections each year, with hundreds of thousands of them hospitalized and many dying, CMS reiterated long-standing requirements that nursing facilities have infection prevention and control programs. In addition, the Administration created a new staff position – infection preventionist – in order to have a health care professional with the necessary skills and training on-site overseeing each facility’s infection prevention and control program. The rules for the infection prevention and control program went into effect in November 2016. Facilities were given three years – until November 2019 – to prepare for the infection preventionist requirement.

In March 2019, CMS announced that along with the Centers for Disease Control and Prevention (CDC), it had developed a free on-line training program for intervention preventionists. In November 2019, CMS reminded facilities and states of federal infection control resources and sent out a self-assessment tool for facilities to determine how well or how poorly they were doing in meeting infection prevention and control requirements.

So what’s wrong? After all, infection control is the care problem that is most frequently cited by the state survey teams that inspect nursing homes to determine whether they meet federal standards.

The problem is that the federal standards for infection prevention and control are treated as unimportant and, as a result, they are not enforced. Less than 1% of the 13,239 infection control deficiencies cited at nursing facilities since November 2017 have been cited at a level (actual harm or immediate jeopardy) that would typically lead to a meaningful enforcement action. The remaining 99+% of infection control deficiencies (called substantial compliance or no harm) are unlikely to lead to any financial penalty. In other words, nothing happens to most facilities that have an infection control deficiency; the government just says, fix the problem. To make matters worse, CMS recently proposed rolling back the infection preventionist requirements, signaling the Trump Administration’s ongoing commitment to reducing “provider burden.”

From its earliest days, the Trump Administration has listened to the urgings of the nursing home industry to reduce enforcement of federal standards of care – shifting from per day fines to much smaller per instance fines, reducing the number of days a per day fine can be imposed, expanding facilities’ ability to describe fines as unaffordable (and thus evade them), and more. Ultimately, residents, their families, and taxpayers pay the price for poor care that is allowed to persist.

Having meaningful standards of care is essential. But unless there are actual consequences for facilities that fail to meet the standards – and fail to provide high quality of care to residents that federal law promises – we will continue to see the tragedies that fill the newspapers each day.

In 2018, 11 children at a New Jersey nursing facility died of infections; the facility had been cited with a no-harm infection control deficiency at its most recent survey. Now, twenty-six older residents in a Washington State nursing facility have died and more residents and staff are sick. A fully implemented and properly functioning infection prevention and control program does not guarantee that infections will never occur, but it could help minimize the impact of the coronavirus pandemic and save lives.

Health and safety regulations are not burdensome interference with private business.  Health and safety regulations have a purpose; they are critical for protecting us and our communities. 

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