Attorneys Margaret E. Daum, Kristina Arianina and Callan Smith

While COVID-19 infections are widespread, the virus disproportionately affects the nation’s most vulnerable populations, including seniors. According to an updated estimate from two healthcare experts, 45% of U.S. COVID-19 deaths have occurred in nursing homes and assisted living facilities. 

Congress and the Trump administration have already provided funding and resources to nursing homes and long-term care facilities throughout the crisis, notably through the Coronavirus Aid, Relief, and Economic Security (CARES) Act [P.L. 116-136]. Given the disproportionate impact of the virus on the residents and staff of nursing homes and assisted living facilities, nursing homes and assisted living facilities should expect federal legislative and oversight activity to continue to be a priority throughout the remainder of this year and the next.

Ongoing federal legislative activity

Members on both sides of the aisle and in both chambers of Congress have introduced legislation focused on COVID-19 testing, transparency requirements, and reporting related to nursing homes and assisted living facilities.

For example, H.R. 6800, the Health and Economic Recovery Omnibus Emergency Solutions (HEROES) Act — that passed the House of Representatives on May 15, 2020 — would provide $150 million for CMS to establish and implement Nursing Strike Teams. The funding would be allocated to states, and Nursing Strike Teams would deploy to SNFs and nursing facilities (NFs) within 72 hours of three residents or employees being diagnosed with or suspected of having COVID-19. 

S. 3758, the Nursing Home COVID-19 Protection and Prevention Act of 2020, introduced by Sen. Robert Casey (D-PA), has received bipartisan support. The bill would provide funds for states to support grouping individuals based on COVID-19 status. The bill would also require CMS to issue related guidance to outline which facilities would be permitted to group individuals and strategies for effective implementation, and provide detailed information regarding cases to residents, families, and specified government agencies. The House companion, H.R. 6972, was introduced by House Committee on Energy and Commerce Subcommittee on Health Chair Anna Eshoo (D-CA). 

H.R. 6998, Quality Care for Nursing Home Residents and Workers During COVID-19 Act of 2020, introduced by Janice Schakowsky (D-IL), has also received strong support. The bill would modify several requirements related to quality of care, worker safety, and transparency for SNFs and NFs during the public health emergency. The bill would also require CMS to distribute funds to allow states to establish strike teams that may be deployed to SNFs and NFs within 72 hours of three or more COVID-19 diagnoses. The Senate companion, S. 3644, was introduced by Sen. Cory Booker (D-NJ). 

Senate Finance Committee Chairman Charles Grassley (R-IA) also introduced a bill to support nursing homes during the public health emergency titled S. 4182, the Emergency Support for Nursing Homes and Elder Justice Reform Act of 2020. The bill would provide nursing homes with resources to respond to the COVID-19 emergency to protect the health and safety of residents and workers, and it would reauthorize funding for programs under the Elder Justice Act of 2009. 

Ongoing oversight and investigations

In addition to funding and legislation, members of Congress are conducting oversight of nursing homes and assisted living facilities. These activities are joined by new reviews initiated by the Department of Justice (DOJ) and the Department of Health & Human Services (HHS) Office of Inspector General (OIG).  These efforts include:

  • The House Committee on Ways and Means, House Committee on Energy and Commerce, Senate Committee on Finance, and Senate Special Committee on Aging have questioned how actions taken by the Administration and the facilities themselves have caused the deaths of nursing home residents and staff.   
  • Senate Committee on Finance Chairman Chuck Grassley (R-IA) and House Committee on Energy and Commerce Ranking Member Greg Walden (R-OR) sent a letter in June to the HHS OIG requesting an investigation into whether five states—California, Michigan, New Jersey, New York and Pennsylvania—violated federal guidance and pressured nursing homes to accept patients who tested positive for COVID-19. 
  • Senators Chuck Grassley (R-IA) and Ron Wyden (D-OR) wrote to the HHS OIG in June requesting that the OIG look into reports that nursing home residents across the country were instructed to hand over their Economic Impact Payments (EIPs) to the nursing home or assisted living facility in which they reside. House Committee on Energy and Commerce Chairman Frank Pallone (D-NJ) and House Committee on Ways and Means Chairman Richard Neal have also raised concerns in June about nursing homes seizing residents’ EIPs. 
  • In June, the Select Subcommittee on the Coronavirus Crisis sent letters to CMS and to the nation’s five largest for-profit nursing home companies, asking for detailed information regarding expenditures of coronavirus relief funds. After learning that one recipient, Ensign Group, had not spent the more than $100 million they received, Subcommittee Chairman Clyburn urged Ensign Group to spend the money for lawful purposes or return it. On August 5, Ensign Group reported that it had returned the funds.
  • In July, Senator Elizabeth Warren (D-MA) and three other senators wrote a letter to CDC Director Redfield and CMS Administrator Verma, urging them to begin collecting and releasing demographic data on residents and workers of nursing homes who are diagnosed with COVID-19.

Democrats in Congress have also used the nursing home crisis to highlight the perceived mistakes of the Trump Administration. Sens. Bob Casey (D-PA), Gary Peters (D-MI), and Ron Wyden (D-OR) released a report detailing how the Trump Administration’s response to the COVID-19 pandemic contributed to the spread of the virus in nursing homes. Additionally, Sens. Elizabeth Warren (D-MA), Ed Markey (D-MA), and House Committee on Oversight and Reform Chairwoman Carolyn Maloney (D-NY) released a report on COVID-19 in Assisted Living Facilities, which found that assisted living facilities have many of the same problems as nursing homes in regards to COVID-19, but are receiving no help from the federal government. 

Additionally, in March, DOJ launched a National Nursing Home Initiative to pursue civil and criminal actions against nursing homes that provide grossly substandard care to their residents. By March, DOJ had initiated investigations into approximately 30 nursing facilities as part of this effort. In August, DOJ requested COVID-19 data from the governors of New York, New Jersey, Pennsylvania, and Michigan, citing orders that required nursing homes to admit COVID-19 patients. 

The HHS OIG has announced multiple oversight activities related to nursing homes, including: (1) an audit of selected nursing homes to determine whether they have sufficient programs for infection prevention and control and emergency preparedness; (2) an audit of nursing homes’ reporting of information related to COVID-19; (3) a nation-wide, two part study to examine how nursing homes have met the challenges of COVID-19; and (4) a review of oversight by State Survey Agencies and the federal government during the pandemic.

Looking ahead

With the election nearly two months away and a potential second wave of the virus coming soon, it is likely the spotlight will remain on nursing homes and how they are faring during the pandemic. Both parties will continue to advocate for increased nursing home oversight, transparency, testing, and reporting, and oversight activities and legislation focused on these issues will likely continue to be a priority in the 117th Congress. 

Margaret E. Daum is a partner at Squire Patton Boggs. Kristina Arianina is a senior associate at Squire Patton Boggs. Callan Smith is an associate at Squire Patton Boggs.