Neville M. Bilimoria

Finally, some good news about nursing homes and COVID-19! That was my first thought when I read that nursing homes were to be receiving $333 million for improved outcomes due to successful COVID-19 practices in the month of September. 

This real improvement is great news, but it is hardly surprising.

Almost 77% of nursing homes received a portion of those improved outcome payments. Does that mean that nursing homes decided to wake up in September and provide better care for COVID-19? Clearly not. Rather, this means that nursing homes finally had been given more of a fighting chance with proper personal protective equipment and proper guidance. There was also better scientific understanding of COVID-19 with better education on how to control the pandemic within their four walls.  

Oh, the irony

I can’t help but focus on the irony here. Remember back in March (it seems like years ago) when nursing homes were considered the worst place to send residents, given the COVID-19 mortality rate, COVID-19 horror stories, and risks of spreading? Now, it seems that with the proper equipment, and proper science and messaging from scientists, that nursing homes finally are getting some means and wherewithal to actually fight the disease, when they didn’t have in preceding months.

At least for a while, nursing homes may have gone from being the “worst” places to send patients (initially, at the start of the pandemic), to one of the best and safest. Why? Nursing homes already know how to deal with the flu since they’ve managed its seasons for several decades now. Plus, they also now have proper testing kits, PPE, and policies and procedures to avoid flu and COVID-19 in their facilities. 

It could be that nursing homes are in some ways safer than your average outdoor surging public space because they are long experienced and better able to control both the flu and the pandemic. 

 Oh, the media!

The irony is especially interesting given the media coverage of nursing home COVID-19 stories.  In fact, remember Life Care Center of Kirkland, the nursing facility where the first U.S. coronavirus outbreak was?  Remember the headlines surrounding the dozens of deaths in that nursing home in March, before anyone knew what COVID-19 was? And remember the media coverage claiming that this facility was somehow negligent in causing the deaths, and how the Centers for Medicare & Medicaid Services came in and hit them with a $611,325 fine? 

CMS alleged that this 5-star Washington state nursing home had failed to follow basic protocols required to prevent infection, according to CMS surveyors, and instead created conditions that could have allowed it to spread from room to room.  Well, that was then . . .

Now, the more recent better news is that on Nov. 1, 2020, CBS’ “60 Minutes” aired a wonderful piece in support of that Washington state nursing home, and highlighted the fact that the government did not give Life Care Centers the support it needed from the government, and that the government was looking for a “scapegoat” for the tragic events caused by the pandemic in that nursing home.  

The “60 Minutes” piece was one of the few positive nursing home stories, on a national scale, telling the nursing homes’ side of the story, albeit eight months later. That story pointed to how this unsuspecting nursing home did not have the necessary PPE or even the scientific knowledge of what it was dealing with, and that government fines were simply not appropriate, only exacerbating the problem. 

In the end, a Washington state Department of Health administrative law judge cleared the nursing home on state violations from the same survey, finding that Life Care of Kirkland was not negligent in the handling of this new pandemic outbreak.  

 In that State case, an ALJ, after a full hearing, decided that “The Department has not shown that [the nursing home’s] response in terms of their management of the crisis was inadequate.”  This was a clear victory for this five-star facility that had garnered national attention. Yet the media (this publication aside) mainly focused on the deaths and the fines, not really focusing on this significant vindication for nursing homes like Life Care of Kirkland.  

The ALJ bravely spoke the truth about Kirkland and what providers on the front line have been saying all along: Don’t use nursing homes as scapegoats. The ALJ, in a strongly worded decision, ruled in favor of the nursing home with these poignant words:

[T]he Department provided relatively little evidence that the facility actually failed to meet any expected standard of care or failed to follow public health guidelines. In a general sense, the Department seems to have reasoned that, because the outcome was tragic, LCCK must have failed to adequately care for their patients; this idea is based on hindsight.

The CMS case was still pending as of this writing. In all, the lower infection rate news in September and the ALJ decision are great news for nursing homes, showing the public that we should be supporting the heroic frontline efforts of our U.S. nursing homes, not criticizing them.    

Neville M. Bilimoria is a partner in the Chicago office of the Health Law Practice Group and member of the Post-Acute Care And Senior Services Subgroup at Duane Morris LLP; [email protected]