Yesterday, Senate Democrats released a report disclosing how Republican Majority Leader Mitch McConnell (R-KY) have packed the federal courts designed to rewrite federal law “to favor the rich and powerful.” Funded by millions of dollars of “dark money” contributions, they are “rolling back the clock on civil rights, consumer protections, and the rights of ordinary Americans, reliably putting a thumb on the scale in favor of corporate and Republican political interests.”

The report explains that the House has passed more than 350 bills this session, nearly 90% of which are bi-partisan and popular, but that McConnell has refused to take them up and allow a vote, focusing only on judicial confirmations.

Senate Judiciary Committee Chair Lindsey Graham (R-SC) even told judges over 65 that they should retire to make sure Trump could fill their seats. “This is an historic opportunity. We’ve put over 200 federal judges on the bench. I think 1 in 5 federal judges are Trump appointees. … So if you’re a circuit judge in your mid-60s, late 60s, you can take senior status; now would be a good time to do that if you want to make sure the judiciary is right of center. This is a good time to do it,” Graham added.

Of course, judges are not political and should not be appointed based on any ideology.  A point that a lawyer (Lindsey Graham) should know and embrace.

 

As deaths continue in sub-standard nursing home facilities, the owners and operators are more concerned with protecting their profits then protecting their residents.  The industry is seeking bailouts and blanket immunity for acts of gross negligence and willful behavior that harmed tens of thousands of innocent residents.

The stuff that we’re seeing, it’s pretty awful,” said Brian Lee, a former ombudsman and executive director of Families for Better Care, an advocacy group focusing on long-term care. “The ask from the industry is sweeping. This is about the owners protecting their business and their profits. They’re supposed to have emergency plans in place,” he said. “It’s supposed to include how to work through a pandemic. They were supposed to be ready for this, they’re not.”

But the nursing home industry has consistently received criticism for failing to meet federal standards for measures like proper handwashing and isolating sick residents. The vast majority of nursing homes were cited for deficiencies in infection prevention and control between 2013 and 2017, according to a new federal watchdog report, which noted “many of these practices can be critical to preventing the spread of infectious diseases, including Covid-19.”

Elder abuse experts and victims’ advocates point to reports of horrifying neglect and egregious misjudgments by nursing homes across the country that they allege contributed to the deaths of residents, and said that, in many states with weak regulations, the threat of a lawsuit represents a crucial protection for the most vulnerable people.  More than 48,000 people have died of Covid-19 in care facilities but the nursing home industry is responding by using its multi-million dollar lobbying machine to secure protections from liability in lawsuits.

Indemnifying nursing homes is “incredibly unfair, incredibly unjust and leaves an already vulnerable population exposed,” said Justin Varughese, a New York trial attorney. “We really need [lawmakers] to amend the breadth of the law to protect the vulnerable here.”

At least 20 states have limited the accountability of the profitable and politically powerful nursing home industry. The nursing home industry is one of the lobbying world’s quiet powerhouses. Now, the industry is turning its energies to obtaining nationwide protections from Congress in the upcoming coronavirus relief bill.  The state actions to protect the industry came after it spent tens of millions of dollars in lobbying and other advocacy per year, according to a POLITICO review of state and federal records. At the federal level, the industry has spent more than $4 million on lobbying over the past year, employing more than a dozen full-time lobbyists and drawing on an army of contractors including Brian Ballard, former lobbyist for President Donald Trump, and ex-Mississippi Gov. Haley Barbour, a former Republican National Committee chairman. In early April, nursing home giant Life Care Centers of America hired a team of four former aides to ex-Sen. Bob Corker (R-Tenn.) to lobby on immunity for all Covid-19 issues.

Advocates for the elderly note that nursing homes have significant legal protections under law – which were further strengthened when the Trump administration watered down Obama-era policies that had blocked homes from forcing residents to forego their right to sue in favor of arbitrationThe many homes with documented poor safety records shouldn’t be protected if they, say, fail to send symptomatic residents to the hospital or neglect to set up proper hygiene protocols, advocates claim.

“Knowing the public regulatory system is pretty weak, they want to stop any other place where they would be held accountable — and that would be litigation,” said Toby Edelman, an attorney with the Center for Medicare Advocacy.

Edelman noted that residents of nursing homes are especially vulnerable to fraud and abuse during times like these when relatives are barred from making visits, where they might witness and report any neglectful practices.

“To me, that’s a frightening combination,” said Edelman, referring to the protection against lawsuits and the lack of a real-time checks on standards of care.

Varughese pointed to cases in which, for example, a nursing home left a dozen or more residents in a room with no personal protective equipment and no consideration for social distancing — situations that he said encouraged the spread of Covid-19, and should be grounds for legal responsibility.

As Americans delay elective surgeries and avoid doctors and hospitals during the coronavirus pandemic, healthcare spending declines have more than offset the added costs of COVID-19 care, insurance executives and experts say, boosting U.S. health insurer profits.

While extended hospital stays, particularly in intensive care units, can rack up massive bills for individuals, that pales compared to the savings from millions of Americans delaying care. Those savings also outpace the costs to insurers of waiving COVID-19 related co-pays, deductibles, tests and other care, which most insurers have agreed to waive.

UnitedHealth Group Inc, the largest U.S. health insurer, last week posted first-quarter earnings above Wall Street expectations and kept its profit forecast in place for 2020, despite an economy battered by massive layoffs and business shutdowns to slow the spread of the virus. Anthem Inc, Humana Inc and Cigna Corp expect a similar trend.

Executives at Cigna, the health insurance giant, have signaled to investors that the coronavirus pandemic isn’t hurting the company’s business and has been a profitable boon. In a meeting with analysts, Cigna’s CEO explained that although they were seeing higher medical claims for treating coronavirus, those costs were being offset by hospitals’ canceling elective surgeries and other procedures.

Cigna is not the only insurer poised to gain. A model developed by UBS analysts shows insurance companies will benefit if up to 14% of the U.S. population is infected with COVID-19, according to a March 30 report. That would be about 45 million people, compared with just over 1 million confirmed infections so far.

But that hasn’t stopped these companies and their well-paid lobbyists from asking for bailouts and legal immunity. America’s Health Insurance Plans, the powerful health insurance lobby, has proposed that the federal government provide subsidies to employers and individuals to keep their insurance coverage, as well as funding for a program to help commercial insurance plans that incur “extraordinary, unplanned costs” from COVID-19.

“I have never seen a drop in utilization the way we are seeing it happen right now, so in some ways it’s a little bit surprising to me that the industry is looking for support on risk corridors and things like that,” Fischbeck said. “A lot of investors at least are thinking this could actually be a positive for managed care.”

Nursing-home residents’ lawyers, families, and advocacy groups are warning that moves by several states to shield the facilities from Covid-19-related litigation could cover up abuse or negligence in the crisis-hit sector.

Two residents of the Citadel Salisbury in Salisbury, N.C., filed suit against the nursing home and its corporate owners in late April, alleging the facility was understaffed, asked employees with Covid symptoms to come to work, and allowed Covid-positive and Covid-negative residents to share restrooms.

Reporter Jan Ransom’s father was the fourth resident of his nursing home to get COVID-19. Nobody told her about the first, so she couldn’t move him before he got sick. “I think that’s very unfair,” her father told her a week before he died.  Ransom wrote an article for ProPublica explaining her story.

Her father and some of the other residents were still being allowed to move around the nursing home without masks and were never warned that the virus had entered the 159-bed facility. And while my father had symptoms of the disease — a persistent dry cough, diarrhea, fever, headaches and body aches — no one at the home, including the doctor who called to follow up with me about his persistent cough, told him or me that they suspected he might have the virus.

Shortly after being admitted to the hospital, her father tested positive for COVID-19. Hours later, she called the nursing home to alert the staff. A nursing home staffer told her that her father was not the first resident to test positive. He was the fourth. She was stunned.

Other journalists at the Times and elsewhere have been writing about the toll the virus was taking on nursing homes, killing hundreds of residents and infecting thousands more. As she read those harrowing stories, her dad was never far from my thoughts.

After realizing the nursing home had failed to disclose, she wanted to contact her father’s roommate and the families of other residents at the facility who were unaware of the storm brewing inside. When I called the state Department of Health to complain on her family’s behalf, she was informed that nursing homes were not obligated to tell families when the virus is detected in other residents.

“Guidelines require nursing home operators to notify a resident’s family of illness, they do not require notification to relatives of other residents,” a Department of Health spokesman later said in a statement.

A day later the policy had changed. The Department of Health is now directing nursing home officials to tell residents and families within 24 hours of learning of a suspected COVID-19 case. The Centers for Disease Control and Prevention then announced that nursing home providers will be required to report potential infectious disease outbreaks not only to state health departments but directly to federal health officials to accelerate efforts to contain outbreaks.

The lack of notification deprived us of the chance to move my father out of the nursing home before he got sick. “I think that’s very unfair,” my father said more than a week before he died. “They have no consideration — in other words you’re just cattle. It goes to show a great indifference.”

The Ensign Group (Nasdaq: ENSG) has been on a roll for countless quarters, and not even the effects of a historic global pandemic were enough to prevent the skilled nursing chain from deriving substantial profits to start 2020.

The San Juan Capistrano, Calif.-based operator saw a 28.3% increase in its per-share earnings over the fourth quarter of 2019 — which itself represented another record — and announced its intention to maintain its 2020 guidance despite continued COVID-19 uncertainty in the industry and the markets at large.

That earnings figure was also a 92.5% increase over the same time last year.

Occupancy at Ensign actually hit a record high in February, right before COVID-19 swept across the country, giving Ensign a cushion when occupancy and skilled mix slid 5.2% and 11.8%, respectively, from mid-March to mid-April.

 

The federal government announced the distribution of almost $5 billion in COVID-19 relief funds directly to skilled nursing facilities.  Most facilities and chains already took advantage of the billions available under the CARES Act. Now, each skilled nursing facility in the country will receive a baseline payment of $50,000, plus an additional $2,500 per bed, the Department of Health and Human Services (HHS) announced. HHS and the Centers for Medicare & Medicaid Services (CMS) had previously released $50 billion in aid to all Medicare providers.

 

Sherri Stoltzfus is administrator of The Citadel Salisbury 160-bed facility in North Carolina that had more than 145 cases of coronavirus. More than 100 of the elderly residents have been sickened, and 20 have died. In sworn statements, six current and former nurses of the facility describe an operation enveloped by panic, chaos and disease.

The Citadel’s managers, according to the nurses’ affidavits, failed for weeks to respond effectively to signs of the emerging pandemic. As the virus spread, managers ordered nurses not to wear masks while failing to provide protective clothing or test the workers on site. When nurses and other employees got sick, they were pressured to come to work anyway, the affidavits say. The nurses say they also witnessed nursing home managers lying to residents and their families about the results of tests.

Those who could work frequently found themselves placed in impossible positions of being forced to treat dozens of elderly and sometimes dangerously ill patients by themselves. As more staff got sick or stayed home last month, one nurse left to handle an entire residence hall by herself threatened to call 911 if her bosses didn’t get her help, her affidavit says.

One of the biggest remaining questions is why The Citadel Salisbury, one of 37 N.C. nursing homes owned by Accordius Health, did not test for COVID-19 earlier to identify how widely the disease had spread. The nurses’ affidavits say symptoms of the disease had become obvious in March. By the time testing did occur, on April 10, sickened residents of the home had already begun turning up and dying at the emergency room.

Moreover, Accordius — which bills itself as a “regional leader in the Southeast for quality, satisfaction and clinical competency in skilled nursing care” — never paid for any of the tests, Stoltzfus confirmed. Instead, the kits were donated by Rowan Novant Hospital and the Rowan County Health Department. As for in-house testing, Stoltzfus said the staff was following an algorithm “put out by the clinical team at corporate” that based testing on a series of symptoms.

Tobias L. Millrood is a lawyer and the president-elect of the American Association for Justice. He wrote a beautiful the below op-ed for The NY Times.  He makes me proud to be a trial lawyer who advocates for nursing home residents.

Just three weeks ago, family and friends did their best to comfort my six siblings and me via videoconference as we mourned my mother, Sylvia. Our grief was compounded by the circumstances of her death: She died at 82 after contracting the coronavirus at her assisted living facility, one of the victims of an outbreak that killed 20 patients and sickened dozens of other residents and staff members.

It has also been compounded by the divisive rhetoric from elected officials seeking to prevent families from seeking redress for their loved ones’ unnecessary suffering.

While thousands of Americans perish daily from Covid-19, the Senate majority leader, Mitch McConnell, has chosen a scapegoat to distract from our government’s failures. Claiming that the disease will become “the biggest trial lawyer bonanza in history,” Mr. McConnell is drafting legislation to protect the nursing home industry from lawsuits — even though home residents and workers represent a third of the country’s coronavirus deaths.

I am president-elect of the association of trial lawyers whose mission is to preserve access to civil justice for all Americans. My group, the American Association for Justice, opposes Senator McConnell’s efforts. Yet that is not the main reason I am against giving blanket immunity to corporations that fail to take reasonable precautions to stop the spread of Covid-19. My mother’s avoidable death has made this fight more personal than ever before.

My mom grew up in a working class part of Philadelphia. She dreamed of going to college, but her parents needed her to earn money to support the family. Ultimately, after meeting my father, a family practice physician, she found her own full-time employment as the mother of seven children.

Beyond her children and grandchildren, my mom was passionate about art and creativity in all its forms. Later in life, she converted this hobby into a profession, becoming a seamstress and dressmaker: “Fashioned for you by Sylvia.” She made bridal and bridesmaid dresses for all the women in the family, prom dresses for teenagers throughout the area and unique paintings and decorations for her 16 grandchildren.

At her assisted living facility in Pennsylvania, she fostered expansion of an art center so she could continue her craft and spread her passion to others. After suffering a fall, she moved into a rehabilitation wing.

My mother became ill with Covid nearly two weeks after a nurse on her floor tested positive. After my video chat with her on the day Mom tested positive, I realized how dire the situation had become. The aide who held the iPad wore only a thin flimsy mask, not the respirator masks we have grown accustomed to seeing on health care workers treating highly contagious patients.
It was clear to me then that the center was not even remotely equipped to handle the outbreak, and my concerns only grew after days of haphazard communication and lack of transparency. But it should have been prepared. While the magnitude of this pandemic is shocking, the fact that there is one should not be. Public health experts have been predicting this for years, and recent swine and bird flus served as test runs for today.

As my family grieves, eventually I will be asked whether the facility should be held accountable. I’m certainly not thinking about that now, and truthfully I do not know where my feelings will land. Evidence continues to mount that many nursing homes put profits for their private equity investors above protecting their patients.

But I also know my mom would feel loyalty to the employees, who had no choice but to work and had no protection of their own.
What is most important is that families deserve the right and opportunity to make this decision for themselves. It is morally reprehensible for lawmakers to say it is more important for corporations to profit than for nurses, caregivers and patients to be protected. Doling out immunity will drive a race to the bottom, with businesses having little incentive to stop the spread of a virus that has devastated so many families.
For example, just one day after Utah legislators passed a bill granting Covid-19 immunity to a host of industries, two businesses were reported to have told staff to ignore quarantine-related guidelines. Other states have similarly passed or are considering immunity legislation to give cover to corporations that engage in misconduct.
Only 10 people could attend Mom’s funeral because of restrictions on gatherings here. My brother brought some yarn that she would use when creating art projects with her granddaughter, and we each held onto the long thread so we could be connected while standing apart.
This is what death and mourning looks like in Covid-19 America. It is a cruel irony that industries that sickened or killed thousands of people because of lack of protection are now demanding it from Congress.

Nurse practitioners will be allowed to conduct certain medical exams for Medicare patients at nursing homes for the first time under a new policy announced by the Centers for Medicare & Medicaid Services.  The greater flexibility is part of a campaign to broaden clinical capacities upstream and downstream during the COVID-19 pandemic. The goal is to free up hospitals’ and physicians’ capacities in particular.

“It’s all hands on deck during this crisis. All frontline medical professionals need to be able to work at the highest level they were trained for,” CMS Administrator Seema Verma said.

The new temporary policy will allow providers to practice at the top of their license across state lines. Nurse practitioners, for example, may be able to test skilled nursing patients for conditions that may or may not be coronavirus-related. And physicians can make treatment decisions at out-of-state rural hospitals.

Changes disclosed are in addition to other waivers announced March 30, including relaxation of nurse aide requirements. They apply immediately and address supervision, licensure and certification, and other limitations in various healthcare settings.

CMS has been throwing money at for-profit nursing homes for months now:

  • CMS has freed providers entirely from having to submit staffing data through the Payroll-Based Journal system for the first quarter of the year (1/1/20 – 3/31/20). There has been no word as to how long the submission waiver will be in effect. Providers should continue to collect their staffing data, however, since that requirement has not been waived.
  • CMS has granted speech-language pathologists, physical therapists and occupational therapists permission to evaluate and treat Medicare Part A patients in skilled nursing facilities using audiovisual devices such as smartphones and tablets. The services would not be considered telemedicine and would be billed the same as in-person services when performed in the same building as the patient.
  • CMS quickly approves $51B in advance payments: CMS announced that it had approved more than 21,000 of 32,000 requests — totaling more than $51 billion — for accelerated or advance Medicare payments. The totals include requests by nursing homes and other frontline Medicare providers over just a one-week period.
  • Lutheran Services in America President and CEO Charlotte Haberaecker told members of Congress in a letter that large nonprofit health and human services organizations need more than $102 billion in relief.

 

For weeks, nursing homes have been the epicenter of coronavirus outbreaks and deaths because of ignoring warning; being unprepared; and failing to provide the staff and PPE to protect residents and caregivers.  But the nursing home industry now demands a sweeping order that would shield nursing homes from lawsuits and criminal prosecutions.

 Consumer advocates, senior-care watchdogs and families who have lost loved ones to neglect and abuse during the coronavirus outbreaks in nursing homes are livid that an industry they see as reckless and profit-driven will be bailed out.  Numerous examples of nursing homes making horrible decisions exist.  Many families and advocates contend that the nursing home’s recklessness effectively threw open doors and allowed the coronavirus to infect and kill vulnerable people.  Across the nation, some states have already issued immunity orders for health care workers for criminal behavior including rape, financial exploitation, and abuse.

“It is shameful,” said John Burris, a civil rights lawyer representing a family who lost a loved one in a California nursing home. “It incentivizes bad conduct.”

Toby Edelman, senior policy attorney for the Center for Medicare Advocacy based in Washington, D.C., said skilled nursing facilities are crucial to the health care system. But Edelman said the industry members seem to be taking advantage of the crisis to protect themselves from a problem of their own making.  Edelman has long tracked nursing homes, which she said tend to have past patterns of poor infection control and other violations. She points out that inspectors regularly cite facilities for a common violation — a failure of staff to wash their hands.

Industry watchdogs and elder law experts assert that litigation is an important tool for holding nursing homes accountable and preventing lapses in the future. They also note that no one is keeping an eye on what goes on inside these places. Visitors have generally been barred, and ombudsmen and regulators are no longer entering because of the contagion, advocates said.