LVW Lawyers Featured in Report on Ongoing Nursing Home Failure to Follow COVID Protocols
Inspectors find some nursing homes still failing to follow basic COVID-19 protocols in 2021
Nagging problems fuel infections; legal changes are designed to close gaps
ALBANY — In early December 2020, every resident of a 120-bed nursing home in Delmar had been potentially exposed to COVID-19.
Two staff members who worked with over a dozen residents at the Delmar Center for Rehabilitation and Nursing were infected with the virus, and one resident had subsequently tested positive. Test results for the rest of the residents were pending.
Yet, when a government inspector visited the facility in Delmar at the time — some nine months into a pandemic that had already claimed 290,000 lives nationwide, including nearly 110,000 nursing home residents — the inspector found some nursing aides were not washing their hands or wearing protective equipment, including gowns and gloves, while interacting with residents. Two months later, the facility was again cited for additional violations.
The Delmar center is far from unique, according to a Times Union review of federal data. Across the country, many nursing homes have continued to violate infection-control procedures, including basic measures intended to stop the spread of COVID-19. Even as the pandemic has waned in the first half of 2021, facilities have continued to be cited for flouting routine protocols, such as failure to wash hands, conduct testing and wear masks.
The violations accelerated during the pandemic despite the fact that the federal government invested over $2.75 billion to help nursing homes with infection control.
Nursing homes struggled to follow infection control rules for years prior to the arrival of the novel coronavirus. But for the first time during the pandemic, every nursing home in the country received an infection control inspection and some were visited multiple times. The more inspections they conducted, the more violations they found.
Some experts say they are alarmed at the rate nursing homes continue to be cited for violations deep into a global health crisis. As the Delta variant of COVID-19 gains traction in the U.S., vulnerable nursing home residents and staff — particularly those who are unvaccinated — are at risk.
“It’s critical, extremely critical, to have robust infection prevention and control principles and practices in any health care setting,” said Lona Mody, professor of internal medicine at the University of Michigan School of Public Health. “It’s a concerning thing for not only nursing homes, but all health care centers.”
She said some research has found other health care settings like hospitals have had some issues with measures like proper hand washing during the pandemic. But infection control is “even more important” in nursing homes where staff must have frequent close contact with residents to help them with daily activities, she said.
Improving infection control practices are now getting “unprecedented” attention from policymakers, Mody said. A new law in New York will require annual infection control audits in nursing homes starting in October.
Federal regulations have required nursing homes to have an infection control and prevention program and a written emergency preparedness plan since 2016. Nursing homes received fines and citations if they lacked such a program or failed to follow it.
The U.S. Government Accountability Office found in May 2020 that infection control deficiencies were “widespread” and “persistent” in nursing homes prior to the pandemic, leaving their residents vulnerable.
From January 2015 through February 2020, nursing homes nationwide were cited by the Centers for Medicaid and Medicare Services (CMS) 17,049 times — about 275 times per month — for various infection control violations, a Times Union analysis of CMS data found.
Roughly two out of every three nursing homes had a violation in that five-year period, according to data from CMS and the U.S. Centers for Disease Control and Prevention.
Nursing homes must submit a "plan of correction" following a citation, demonstrating that they have addressed the issue, according to the American Health Care Association (AHCA), a national nursing home industry group.
During the pandemic, CMS and state health officials issued detailed guidance to nursing homes on proper infection control and safety measures for COVID-19, and added new protocols to their infection control checklists.
Officials also conducted about 30,000 more infection control inspections in 2020 than they did in 2019, CMS data shows. Inspectors performed twice the number of inspections in late 2020 than they did in the early part of the year.
With more scrutiny, they found more than triple the previous rate of violations.
Almost half of all nursing homes were cited at least once during the pandemic for an infection control violation, CMS data shows.
This year, CMS has already imposed approximately $35 million in fines associated with infection control deficiencies, an agency spokesman said.
The AHCA said the violations showed public officials were focused on fining nursing homes instead of helping them during the pandemic.
“CMS issued approximately three times more enforcement actions in 2020 than in the prior two years,” an AHCA spokesperson said. “Meanwhile, nursing homes were left begging for personal protective equipment, testing, and staffing support while grappling with an enormous amount of new and conflicting government guidance on how to respond to the crisis from various levels of government.”
Like other health care facilities, nursing homes faced shortages of personal protective equipment at the beginning of the pandemic. According to numerous experts, they’ve struggled to adequately staff their facilities due to workers falling sick with COVID-19, job stress, low wages and other factors.
But the federal government has also provided billions of dollars in grants to nursing homes during the pandemic, including more than $2 billion earmarked for infection control. Nursing homes are largely taxpayer-funded through Medicare and Medicaid, and they’ve argued for years their reimbursement for services is insufficient.
A CMS spokesman said their fines for violations is an important part of their oversight responsibilities and they’ve increased the penalties for facilities that don’t meet the basic requirements. But the spokesman added the agency previously equipped nursing homes with the tools to ensure compliance — such as guidance documents, technical assistance webinars, weekly calls with nursing homes and other outreach efforts.
29 percent of New York facilities cited
In New York, the state health department has conducted 3,840 unannounced onsite Focused Infection Control Surveys with at least one visit to every nursing home and adult care facility since the beginning of the pandemic, said Jeffrey Hammond, spokesman for the agency.
New York nursing homes were cited for infection control violations about 17 times per month on average during the pandemic, up from 6 times per month in the five years prior to the pandemic, CMS data shows. During the pandemic, 29 percent of New York nursing homes were cited for at least one infection control violation.
Their violations included failing to perform proper COVID-19 testing on residents and staff, failing to report information about COVID-19 cases at the facility to residents and their families, and failing to have an infection prevention and control program.
Milly Silva, executive vice president of 1199SEIU United Health Care Workers East, a union that represents thousands of nursing home workers in New York, said that before the pandemic her members regularly experienced a lack of transparency about viruses present in their facilities, were not educated on infection control, and sometimes didn’t have access to basic supplies like soap.
“They were often being asked to go from room to room, for example, wearing the same PPE, which is not appropriate,” Silva said. Staff in some cases saw improvement after conversations with management, she said, while at other homes workers and their union made reports to the state about ongoing infection control problems.
Correlation with COVID-19
Several studies have found that past infection control deficiencies were not highly correlated to the number of COVID-19 cases or deaths in a nursing home.
“The primary determinant of COVID outbreaks is community prevalence,” said Vince Mor, a professor at the Brown University School of Public Health. “Just like people in crowds transmitting it, the intimate work done by staff living in communities where COVID is prevalent and predominantly asymptomatic staff made it easy to transmit.”
Tamara Konetzka, professor of public health sciences at the University of Chicago, testified before Congress in March that these results do not mean that nursing homes and policymakers should ignore the importance of infection control measures, however.
“Rather, they suggest that high quality and good infection control are not enough,” she said. Addressing infection control was one of Konetza’s five recommendations for improving nursing home care during the pandemic.
Mody said infection prevention is usually overseen by a part-time nurse, and nursing homes are not typically incentivized to spend more money to maintain excellent infection control practices. Staff turnover in nursing homes is high, and employees often do not get in-depth training in the protocols.
“We should expect health care workers to follow all guidelines. It’s part of their job,” Mody said. “But at the same time, health care providers have to get more encouragement rather than always being dinged for it.”
‘We lost lives’
The Grand Rehabilitation and Nursing at Barnwell, a 236-bed nursing home in Valatie, had the most infection control violations during the pandemic of any nursing home in New York with five violations found, according to CMS data.
Inspectors found in May 2020 that staff entered the rooms of multiple residents, some of whom were infected with COVID-19, wearing the same personal protective equipment, CMS records show. When inspectors returned to the Grand Rehabilitation and Nursing at Barnwell eight days later, the nursing home had residents residing in the same room even if one was positive for the disease.
In January, inspectors found a nurse did not don a surgical gown or protective eyewear to interact with a patient suspected of having COVID-19. They observed a staff member who reported having a cough entering the building.
Two months later, staff working with COVID-19 residents were still not wearing N-95 masks as required, inspectors found. And two months ago, amid what was likely one of the worst nursing home COVID-19 outbreaks in the nation at the time, inspectors found multiple people working at the Grand did not properly wash their hands or wear gloves when working with patients, including some with possible COVID-19 exposure.
In nearby Kinderhook, town Supervisor Patsy Leader said “a couple dozen” people called her during the pandemic to complain about the conditions at the Grand Rehabilitation at Barnwell.
“It’s a business for them,” she said. “They cut corners on the quality of care. … Unfortunately we lost lives.”
A total of 26 residents from the Grand Rehabilitation and Nursing at Barnwell — a facility also known as Barnwell — have died due to COVID-19 related causes as of July 13, the state reported.
CMS has fined Barnwell $650 during the pandemic, and the state health department fined the operator $28,000.
Asked about the violations, Bruce Gendron, vice president for the Grand Healthcare System, said it is “disappointing” when staff make mistakes, but management retrains them to improve care.
“All the time, we have turnover of staff,” Gendron said. “Some human beings, they may make mistakes when they are doing their protocols. We do education and we retrain them any time a problem is identified. Sometimes problems are identified by the Department of Health; sometimes they are identified internally.”
Prior to the pandemic, Barnwell was cited during infection control inspections three times since 2015.
Cindy Bevins is a nurse who worked for years at the home when it was under prior management two decades ago. Her mother lived in Barnwell for several months in 2019. Bevins said the facility was short-staffed and dirty, and she’d often arrive in the morning to find her mother in night clothes in a soiled bed.
“I have very fond memories of Barnwell back in my day,” she said. “Nowadays, I wouldn’t recommend anybody going in there.”
Centers Healthcare, one of the largest for-profit nursing home chains in New York, had seven nursing homes cited for multiple infection control violations during the pandemic, including the Delmar Center for Rehabilitation and Nursing, and the Schenectady Center for Rehabilitation and Nursing in Schenectady.
The Schenectady Center was cited three times for failing to follow infection control protocols during the pandemic. When inspectors last visited in February, they found staff were not properly washing their hands or wearing personal protective equipment. Not all staff were being tested for COVID-19 weekly, inspectors found, according to CMS reports.
Nearby, the Delmar Center has been cited four times since the pandemic began in March 2020 for failing to meet basic infection control standards and COVID-19 guidelines. The facility passed some inspections with no health deficiencies, while on other visits inspectors identified multiple violations. In February, inspectors cited the nursing home for failing to properly segregate COVID-19-positive patients.
“As with many nursing homes and rehabilitation facilities throughout the country, there was some instances during state survey periods at some of the heavy stressful times of COVID-19 inspection that a particular infection control instance happened and was observed,” said Jeffrey Jacomowitz, spokesman for Centers Health Care. “After receiving the report of what was observed, those facilities were visited by Centers Health Care’s re-education personnel to give them a brush-up on infection control, as well as learning new tools of infection control. The incredibly hard work that Centers’ (certified nursing assistants, licensed practical nurses) and nurse practitioners have done over the past 15 to 16 months should not be ignored and ... these ifnstances were far and few between.”
Jacomowitz noted that nursing homes were subject to changing regulations and expectations from the CDC, CMS and state health officials during the pandemic.
“It wasn’t until the fall where things really slowed down and we were able to master our processes,” he said.
New laws for nursing homes
New York passed several laws this year aimed at improving conditions in nursing homes.
In October, they'll undergo new annual state health department audits for infection control proficiency. Facilities that fail to meet at least 85 percent of the criteria will face biannual or monthly follow-up inspections. (Massachusetts and New Jersey approved similar legislation.)
DOH declined to provide details on how it will implement the audits, including whether they plan to hire additional staff. 1199SEIU's Silva said state health departments in New York and other states have previously lacked enough inspectors to provide rigorous and regular oversight of facilities.
Silva said the union — which advocated for the changes — is hopeful that regular monitoring of infection control measures, examination of the training given to staff and rewarding good institutions with more funding could improve the system.
AHCA said similarly that it advocated for a system where nursing homes are incentivized to provide quality care. It said the current survey approach is too punitive and should be replaced.
New York also established a minimum staffing standard for nursing homes, requiring that next year a daily average of 3.5 hours of care per resident per day by a certified nurse aide, licensed nurse or nurse aide.
In addition, New York mandated that nursing homes will have to put at least 70 percent of their revenue toward direct care and 40 percent of revenue toward paying nurses.
Nursing home industry trade groups contend the legislation will limit their budgets and make it difficult to find enough staff to comply with the new requirements.
Nursing homes have also received protection from a state law during the pandemic that shielded them from legal liability from medical malpractice and negligence claims from the spring of 2020 until April, when it was repealed by the state Legislature. Supporters argued that the law allowed nursing homes to provide care during an unprecedented global health emergency without fear of liability.
That temporary immunity is being challenged in federal court by Vivian Zayas, a woman whose mother died in a West Islip nursing home during the pandemic.
“All they want is for a jury to be able to decide whether or not the care that was given to their loved ones was reasonable care,” said Nicholas Warywoda, one of the lawyers helping to represent Zayas in the case. “A jury can take into account what was going on at the time, and whether or not that was reasonable.”