WILL GOVERNORS ESCAPE BLAME FOR NURSING HOME DISASTER? 

By Jefferey Jaxen

After months of public outcry from angry Americans over the catastrophic mismanagement of nursing homes during the Covid-19 crisis, the government has decided to take action. 

It was first announced in mid-June that the U.S. House of Representatives Select Subcommittee on the Coronavirus Crisis sent letters to five of the country’s largest for-profit nursing home companies, as well as the Centers for Medicare and Medicaid Services (CMS). Concerned about “lax oversight,” the committee demanded detailed data and reports on their handling of the Covid crisis. 

We write today to seek documents and information regarding CMS’s actions to protect vulnerable Americans in nursing homes.” wrote Chairman James E. Clyburn. 

The letter went on to state how CMS imposed only limited reporting requirements on nursing homes. On May 1, 2020, CMS implemented an interim rule requiring nursing homes to begin reporting weekly data on coronavirus infections and deaths, tests, and equipment. Inexplicably, CMS did not require comprehensive data prior to May 8, 2020—even though the first nursing home outbreak began in February. Some facilities failed to report any data in their initial submission.

Despite CMS’s broad legal authority, the agency largely deferred to states, local governments, and for-profit nursing homes to respond to the coronavirus crisis. This was where things went from bad to worse. 

On March 13, CMS issued ‘Covid’ guidance. It was intended to be a blueprint for individual states to follow while determining how to best ‘cocoon’ the most vulnerable to the virus amongst our population, and control any outbreaks. This guidance did not direct any nursing home to accept a COVID-19-positive patient, if they were unable to do so safely.

You probably already know how that worked out. Directly flying in the face of science and common sense, several governors issued orders to force patients into nursing homes. New York Governor Andrew Cuomo was chief among them. His now-notorious March 25 directive essentially forbade nursing homes to require incoming patients be tested for the virus or to inquire what their status was. The directive has since been scrubbed from the state’s health department site.  

In mid-June, Republican Whip Steve Scalise, the Ranking Member of the Select Subcommittee on the Coronavirus Crisis, announced on Twitter that he had sent letters to five governors (MI, NY, PA, NJ and CA) demanding they explain why they ignored protocols and forced COVID-19 patients into nursing homes. “While nursing home residents make up 0.6% of the U.S. population, they account for 42% of nationwide COVID-19 deaths” Scalise wrote. 

Select Subcommittee member Jackie Walorski (R-Ind.) said, These misguided policies deserve close scrutiny, and the leaders who put them in place have a lot of tough questions to answer.

Subcommittee member Mark Green (R-Tenn.) added, “The governors of these states must provide details about their decisions to send contagious COVID19 patients into nursing homes. The American people, and their loved ones, deserve answers.

After being briefed with the data Scalise had discovered, Congressman Mike Garcia published a press release blasting California governor Gavin Newsom and others.  

Rather than doing everything within our power to flatten the curve and protect our seniors, Governor Newsom instead ordered that nursing homes ‘shall not refuse’ a patient with a positive COVID-19 test.”

Garcia went on to say, 

Despite the guidance from CMS, Governor Newsom even offered a cash incentive of $1,000 per day per patient to house COVID-19 positive patients in nursing homes and long-term care facilities.

Even standard oversight broke down during the crisis. Nearly half of the nation’s nursing homes were not checked to see if staff were following proper procedures to prevent coronavirus transmission. State inspectors failed to enter half the country’s homes, leaving everyone from decision makers to families in the dark. 

The findings prompted a fresh mandate from Medicare and Medicaid chief Seema Verma, which required states to complete the checks by July 31 or risk losing federal recovery funds. 

But is it too little to late at this point? 

According to the most recent data reported by nursing homes to the CDC, there were a total of 30,794 deaths as of June 14. However, those numbers may be undercounted. According to an analysis conducted by the New York Times more than a month ago, at least 28,000 residents and workers in long-term care facilities had already died from the ­virus. Their updated count released yesterday increased the number to 54,000. Of the seven states with the top mortality rates due to COVID-19, five of them are the ones being spotlighted by Scalise and other members of Select Subcommittee. 

A potential issue with Scalise’s investigation is the precedent it may set legally, or at least socially in the minds of officials and the public. We all want justice if—and it appears there was—wrongdoing that occurred at the behest of governors. 

Consider a separate possible scenario. Scalise is attempting to hold governors responsible for not following Centers for Disease Control (CDC) quarantining guidance. The CDC policy calls for people in quarantine to “stay home, separate themselves from others, monitor their health, and follow directions from their state or local health department.” 

Additionally, the agency’s ‘isolation’ policy says to “separate people infected with the virus (those who are sick with COVID-19 and those with no symptoms) from people who are not infected.

If governors began taking the fall for nursing home deaths, as they should if the evidence deems it, will citizens be held liable for violating the CDC’s standards? 

In a May 15 opinion piece by New York Post writer Michael Goodwin, Blame governors for the coronavirus deaths in nursing homes, he writes: 

“If they are honest, historians judging the American experience during the coronavirus pandemic will excoriate our barbaric failure to protect the elderly. We think of ourselves as civilized, but mindless policies and bureaucratic indifference turned many nursing homes and rehabilitation centers into killing fields.”

Will Washington and its Select Subcommittee go far enough in demanding justice and transparency? Do they have the power to? Goodwin suggests a designated US attorney use a grand jury to demand answers. Perhaps that is a stronger way to move forward.  

We are now several months into this unfolding disaster and, with all due respect, our government is only now beginning to start the search for answers.  

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