As the pandemic rages to new heights and we gear up for a new administration, there’s an important step President-Elect Joseph R. Biden could take right away to protect our most vulnerable population: He could restore the ability for nursing home residents to sue their facilities for poor health standards.
Though coronavirus cases for people living in long-term care facilities total just 8% of cases, that demographic accounts for 45% of all COVID-19 deaths in the U.S. through August, according to the Kaiser Family Foundation.
The state-level data is even more grim. Nursing home deaths from COVID-19 in Minnesota and Rhode Island, for example, accounted for 81% of coronavirus deaths in those states as of early June, according to the Kaiser Family Foundation data. Long-term care facilities are a major driver of COVID-19 deaths in the country.
Seniors at long-term care facilities and their families have little legal recourse when it comes to fighting for better conditions.
But seniors at long-term care facilities and their families have little legal recourse when it comes to fighting for better conditions.
Trump stripped seniors of those protections his first year in office. He rescinded a rule President Obama had put in place in 2016 which would have prevented corporate-run facilities from receiving federal funding if residents were forced into arbitration after suffering harm in their care. That rule also would have prevented facilities from making arbitration agreements a condition of admission or continued care.
The Obama administration found significant evidence that pre-dispute arbitration agreements negatively impact the quality of patient care and create negative incentives on staffing and care because there is no threat of a substantial jury verdict for sub-standard care—findings that team Trump did not dispute.
The move to erode protections for seniors prompted a group letter by 17 state attorneys general and the District of Columbia to the HHS in 2018. The letter urged the agency not to “lower the level of regulatory oversight” by “rolling back reforms to improve the safety and wellbeing of nursing home residents.”
The new rule, finalized in mid-2019, has been promoted by the Centers for Medicare and Medicaid Services (CMS), which falls under the U.S. Department of Health and Human Services (HHS).
The Trump administration has taken an extra step to line the coffers of the corporations running these facilities. Since May, HHS has dedicated some $10 billion to facilities as incentive pay for “curbing” COVID-19 deaths and infections, among other things. Long-term care facilities have not blunted the spread of coronavirus, but they are taking the money.