By Debbie Cenziper, Joel Jacobs and Shawn Mulcahy, The Washington Post, October 29 2020
At the outset of a looming pandemic, just weeks after the first known coronavirus outbreak on U.S. soil, the woman responsible for helping to protect 1.3 million residents in America’s nursing homes laid out an urgent strategy to slow the spread of infection.
In the suburbs of Seattle, federal inspectors had found the Life Care Center of Kirkland failed to properly care for ailing patients or alert authorities to a growing number of respiratory infections. At least 146 other nursing homes across the country had confirmed coronavirus cases in late March when Seema Verma, the administrator of the Centers for Medicare and Medicaid Services, vowed to help “keep what happened in Kirkland from happening again.”
The federal agency and its state partners, Verma said, would conduct a series of newly strengthened inspections to ensure 15,400 Medicare-certified nursing homes were heeding long-standing regulations meant to prevent the spread of communicable diseases. It was another key component of a national effort, launched in early March, to shore up safety protocols for the country’s most fragile residents during an unprecedented health emergency.
But the government inspectors deployed by CMS during the first six months of the crisis cleared nearly 8 in 10 nursing homes of any infection-control violations even as the deadliest pandemic to strike the United States in a century sickened and killed thousands, a Washington Post investigation found.
Those cleared included homes with mounting coronavirus outbreaks before or during the inspections, as well as those that saw cases and deaths spiral upward after inspectors reported no violations had been found, in some cases multiple times. All told, homes that received a clean bill of health earlier this year had about 290,000 coronavirus cases and 43,000 deaths among residents and staff, state and federal data shows.
That death toll constitutes roughly two-thirds of all covid-19 fatalities linked to nursing homes from March through August.
Patient watchdog groups acknowledge that not every outbreak could have been prevented, even with adequate infection-control practices in place. But as the pandemic raged, the number of homes flagged for infection-control violations remained about the same as last year.
The facilities that were cited for breakdowns often escaped significant penalties, The Post also found.
Inspectors reported violations at about 3,500 homes, ranging from dirty medical equipment to a lack of social distancing. Though federal law allows CMS to levy fines of roughly $22,000 for each day a serious violation lingers, most providers were fined little or nothing at all.
For failing to ensure staff members wore masks, Sterling Place in Baton Rouge, with more than 80 coronavirus cases and 15 deaths, was fined $3,250.
For failing to separate residents in a common area, Heritage Hall in Leesburg, Va., with more than 100 cases and about 18 deaths, was fined $5,000.
For failing to use protective gear, the Broomall Rehabilitation and Nursing Center in Pennsylvania, with more than 200 cases and about 50 deaths — among the highest nursing home death counts in the country — was fined $9,750.
Broomall spokesperson Annaliese Impink attributed the lapses to “covid fatigue” and said staff members are corrected when concerns crop up. Officials with Sterling Place and Heritage Hall did not return calls seeking comment. In its written response to the inspection, Heritage Hall said tables had been rearranged and a nursing supervisor would monitor for compliance. Heritage Hall went on to suffer a second deadly outbreak last month, state records show.
The inspections follow a three-year push at CMS to ease rules long considered burdensome to the nursing home industry, whose lobbyists and leaders include former politicians and government insiders. Even before the coronavirus crisis, the agency took steps to limit the use of some fines and strike an Obama-era mandate requiring nursing homes to bring on at least part-time infection preventionists.
Many states launched their own oversight efforts in recent months, conducting infection-control reviews, moving to close homes and in a handful of cases opening criminal investigations. States have also imposed other penalties on behalf of CMS, such as requiring staff training and in some cases denying Medicare payments for new admissions.
But patient watchdog groups say the lack of inspection findings and significant fines undercut the agency’s ability to force change at troubled homes during the crisis.
“I can’t think of one decision that CMS made properly,” said Charlene Harrington, a sociology and nursing professor at the University of California at San Francisco who has studied the industry for more than 30 years. “They just rolled over, whatever the nursing homes wanted. CMS made it so much worse than it could have been if they had just kept their oversight in place.”
Verma, nominated by President Trump in 2016, defended the agency, saying plans to ramp up the quality of care in nursing homes began before the pandemic and continued at an “unprecedented” clip as the crisis played out. In February, she said, the agency alerted nursing homes and states about the need to focus on infection prevention.
She said thousands of inspections were conducted in a matter of months.
“I don’t think there’s any intent on our end to not hold nursing homes responsible for their actions,” she said. “From the very beginning, CMS fought to go into these nursing homes. I was very alarmed about what I was seeing on the news reports.”
Through a spokesperson, CMS added that the inspection process was not meant to be punitive and that nursing homes were given instructions on how to be compliant in advance of the inspections. The explanation appears to counter some of the agency’s public comments, which described “aggressive enforcement” against homes that failed to practice proper infection-control protocols.
Focused on containing the virus, CMS did issue high-level infection-control citations, which trigger the heftiest fines, far more frequently than last year, agency data shows. And in June, Verma announced that more lower-level infection-control violations would result in fines to “help prevent backsliding, improve accountability, and ensure prompt compliance.” CMS has long considered most of the lapses minor, without the need for penalties.
The number of fines increased, with the agency imposing penalties for infection control of roughly $26 million from March through August, according to The Post analysis, which used federal data from mid-October. But even as inspectors chronicled deficiencies and the virus continued to spread, the vast majority of fines were still relatively small — in scores of cases — $5,000 or less. And many homes were not fined at all.
“Unless the fines and penalties have teeth and significance, [nursing homes] just as soon pay them and move on,” said Dean Lerner, a former assistant attorney general in Iowa who spent nearly a decade as the state’s chief health inspector and later became an enforcement consultant to CMS.
Nursing homes and their trade groups say even the most stringent infection-control measures would not have stopped the coronavirus from infiltrating homes and that other factors, including the prevalence of the virus in the community and a facility’s proximity to an urban center, played a far more critical role in outbreaks. Industry representatives also say the fines long imposed by CMS would have done little to protect residents during the pandemic.
Since March, more than 70,000 nursing home residents have died, along with hundreds of staff members, making up about 30 percent of all coronavirus deaths in the United States, The Post found.
“Prioritizing longterm care facilities in emergency situations is key, and we need to focus on a collaborative, not punitive, approach in helping nursing homes respond to this once-in-a-century pandemic,” the American Health Care Association and National Center for Assisted Living said in a statement. “Citations and fines without assistance will not help us keep residents and staff safe from this virus.”
Patient watchdog groups, health experts and CMS counter that many homes with robust infection-control standards, along with adequate staffing levels and protective gear, were able to keep outbreaks at bay.
“This pandemic’s death toll at nursing homes was not an inevitability,” Lerner said. “That’s false information spread by the industry.”
For homes without strong protocols, the threat of significant federal enforcement would have prompted early, swift and sustained reform, Lerner and others said. Besides the lack of inspection findings and fines, CMS in March temporarily suspended the collection of all penalties.
Though the agency drew headlines early on for imposing a $610,000 fine at the Life Care Center of Kirkland, CMS told The Post in August that it had not yet sent Life Care the bill, citing the decision to postpone payments. The home’s coronavirus outbreak was linked to more than 45 deaths.
Davis Lundy, a Life Care spokesperson, said CMS sent the bill last month and the company put the money into an escrow account at the agency. Life Care is appealing the federal findings as well as similar findings by the state of Washington. A state administrative law judge recently found Life Care violated some regulations but dismissed most of the state’s findings, citing a lack of evidence.
The state is challenging the ruling. A hearing on the federal inspection is scheduled for next year; Verma said she stands by the findings.
As the coronavirus continues to spread, with about 7,000 deaths at nursing homes since early September, watchdog groups say CMS needs to do far more to ramp up oversight of the industry.
“CMS approach to enforcement during the pandemic has been terribly wrongheaded,” said Mike Dark, an attorney at the California Advocates for Nursing Home Reform. “It signals to facilities that there will be no business cost and no consequences if you get it wrong.”
Cleared of violations
The renewed focus on infection control was a notable turn of events at CMS, which in the summer of 2019 proposed changing the Obama-era mandate that required nursing homes to bring on infection-control preventionists at least part time. The trained nurses would watch for signs of an outbreak and teach caregivers about protective gear, hand-washing techniques and isolation procedures.
The Trump administration proposal, which drew heavy criticism from patient watchdog groups, called for removing the part-time requirement, instead allowing nursing homes to decide how much time to allocate to infection control.
“You cannot just say to the nursing homes, ‘Oh you guys decide,’ ” said Alice Bonner, director of the CMS division of nursing homes from 2011 to 2013. “What covid is teaching us is that there are certain fundamental, standardized approaches that really need to be enforced.”
No final decision was made, and the Obama-era rule went into effect in November 2019. As the threat of the virus emerged, some facilities opted to pay particular attention to infection control.
In February, the California Department of Veterans Affairs created a 37-step risk reduction plan that addressed staff training and the prevention of communicable diseases. The department cares for 2,100 residents across eight homes, including 800 in skilled nursing. Since March, two residents and one employee have died of covid-19, the department said.
“The evidence that these protocols have made all the difference is that positive cases have remained low even while rates in the surrounding community have increased,” CalVet Secretary Vito Imbasciani said in a statement.
Nursing home inspectors say other facilities, aware of the CMS proposal to relax the infection preventionist requirement, were unprepared to mitigate the spread of the virus. Some homes had simply assigned infection-control duties to nurses already juggling other responsibilities.
“They were doing two roles, three roles,” said one inspector in California who spoke on the condition of anonymity because she was not authorized to speak publicly. “They are cutting corners.”
Still, CMS went on to make infection control an essential part of the agency’s defense during the pandemic. In early March, the agency said it would prioritize infection-control inspections, deploying surveyors, most at state health agencies, on unannounced visits to homes across the country.
“We’re going to put all inspection resources, at the state level, focused on infectious disease, looking at nursing homes being a focal point of vulnerability,” Vice President Pence said at a March 3 press briefing with the White House coronavirus task force.
Three weeks later, Verma announced the findings of the inspection at the Life Care Center in Kirkland. CMS, she said, had enhanced the infection-control inspections, adding in guidance from the Centers for Disease Control and Prevention and targeting homes in hard-hit regions. She also said CMS was calling off all routine inspections to “focus solely on infection control” and encouraging nursing homes to conduct voluntary self-assessments to ensure compliance.
Providers, industry representatives and others say coronavirus outbreaks in many cases were more a matter of bad luck than breached standards: Asymptomatic staff carried the virus into buildings before anyone knew it was there. Patient advocates counter that too much went wrong once the virus was inside, lethal containment lapses that should have been cited by inspectors.
“If they weren’t finding infection-control citations during this infection period, shame on them,” said Lerner, the longtime regulator in Iowa.
Among the homes cleared of violations: the Gallatin Center for Rehabilitation and Healing northeast of Nashville, which in early April was reeling from an outbreak that had infected dozens of people. Four residents had died, the county mayor called the home’s response inadequate, families complained about a lack of information, and the state and county stepped in, helping to coordinate the evacuation of patients to the hospital.
Amid the devastation, inspectors visited twice during the first week of April to look for lapses that allowed the virus to spread. The center, which had been cited before the pandemic for failing to enforce hand-washing protocols or to properly handle soiled linens, passed both inspections.
By mid-April, another 15 people were dead. By early May, the home’s death toll had risen to a total of 23.
The facility’s administrator, Dawn Cochran, said the home adopted testing procedures, created isolation zones, restricted visitors and discontinued communal dining and group activities. “Since the onset of the pandemic, we’ve worked diligently to go above and beyond what is recommended by regulatory bodies to ensure the health and safety of our residents,” she said in a statement.
Deneen Barr, whose 80-year-old father was among the first to die at Gallatin, said regulators should have done far more to hold the facility accountable.
“It’s hurtful, and I’m sure everybody else is hurting, too,” said Barr, whose father, Homer, was a retired fire captain. “I just wish [the home] had done better.”
CMS could not say why so many homes passed inspections. Verma said that nursing home workers often perform at their best when surveyors are on site. “We go in, we think everything is okay, and then the next day they’re not washing their hands after they’re interacting with patients,” she said.
Bonner, the former CMS official, said some inspectors probably did not have enough time to conduct thorough investigations. The Post found that inspections during the early months of the pandemic were done by phone in some states.
Bonner also said inspectors don’t always have extensive expertise in infection prevention. “Some of them are nurses and they’re great and they know the information really well,” she said. “Others don’t have that much training. People just weren’t necessarily comfortable making citations.”
In Tennessee, several former employees at the Gallatin Center have alleged the state alerted the home in advance of the inspections, said medical malpractice attorney Clint Kelly, who is representing five former staff members in potential workers’ compensation claims. Kelly is also representing about 20 families with pending lawsuits against the home.
“The state comes in and they give you lots of notice and you know exactly what they’re going to look for and how they’re going to do it,” Kelly said. “All you have to do is clean up the place, fix the records … walk them through and very nicely say, ‘Thank you.’ It becomes a whitewash.”
Shelley Walker, a spokesperson for the Tennessee Department of Health, said inspections are unannounced and not all turn up violations.
“All of our health-care facility surveyors are nurses, who record what they observe during any survey visit and remain in the facility as long as needed to complete a thorough assessment,” she said. “Each survey report reflects any findings from that visit.”
In Illinois, the Department of Public Health attributed the lack of inspection findings to CMS itself. The federal agency, according to the health department’s website, directed states “not to issue citations, but rather encourage surveyors to ensure violations are remedied quickly.”
Through a spokesperson, CMS said no such guidance was issued.
In California, several inspectors and their employees union said the state health department early on asked inspectors to counsel nursing homes rather than cite them for infractions.
“We were told to give them a chance to get up to speed on their infection-control policy before we start really enforcing,” said one inspector, who spoke on the condition of anonymity because she was not authorized to speak publicly about the process. “The demands from CMS had really taken a back burner.”
In a statement to The Post, the state health department said inspectors have always been tasked with educating nursing homes and that enforcement efforts continued during the pandemic. A labor union representing 500 California nursing home inspectors, however, has filed an unfair employment practices complaint, challenging the state’s focus.
“We’re in the middle of a pandemic but let’s remove all of the oversight?” said Tony Owens, the union’s vice president for bargaining. “It’s crazy. I have no words. If there were a ranking of where the places are that you don’t want to be right now, I’m going to say that nursing homes are somewhere at the top of that list. At what time would you ever want to have the enforcement piece to be intact?”
Small fines at troubled homes
Overall, inspections during the first six months of the pandemic turned up violations at about 3,500 homes, from a 35-bed facility in Littleton, Colo., to a sprawling center outside of Albany, N.Y. Most faced small fines or none at all, federal data shows.
Under the law, providers can be fined for poor patient care, abuse and neglect, lapses in infection control and a series of other health and safety breakdowns. Deficiencies documented by inspectors are ranked by severity and scope and then sent to CMS regional offices or to the central office, where proposed fines are finalized.
Earlier this year, inspectors twice flagged breakdowns at North Ridge Health and Rehab in the suburbs of Minneapolis, finding that some staff members did not wear masks, change gowns or wash their hands. Before the pandemic, the home had accumulated $105,000 in fines for health and safety breaches and faced the loss of Medicare funding.
Inspectors classified the citations at North Ridge in March and April as low level, and the facility was not fined. Several days after the April inspection, North Ridge, already struggling with coronavirus cases, started taking in dozens of covid-positive patients from area hospitals and community health-care providers.
To date, more than 80 people have died. About half were longer-term residents.
North Ridge administrator Austin Billie defended the home’s response to the virus, saying staff successfully contained the spread of infection after the initial outbreak and corrected the deficiencies cited by inspectors.
“We knew after that round of inspections that we had work to do, and we did it,” Billie, the facility’s vice president of operations, said in a statement. He added that the home has had nine subsequent inspections and passed each time and that the covid-19 patients accepted from the community were housed in a unit isolated from other patients and caregivers.
“I want to be clear that we see no correlation between the infection-control tags we were cited for earlier this year and the tragic deaths related to covid-19 that occurred here,” Billie said. “We have served as a model for bending the curve of infections through rigorous infection-control practices.”
Sandi Lubrant, a board member at the Minnesota Elder Justice Center who lives about three miles from the home, said the violations at a facility with a history of infractions should have triggered a more significant response from regulators.
“To me, when a pandemic was coming, I would think there would have been more oversight,” she said. “A poorly operated nursing home clearly needs some type of deterrent. If that deterrent is not existent, I’m not sure what will cause a nursing home to do better.”
Under the Obama administration, CMS took steps to impose more frequent and larger penalties, telling nursing homes they could no longer avoid paying fines for egregious violations simply by correcting them. Instead, penalties would kick in immediately.
Total fines, adjusted for inflation, rose sharply at the time, from $70 million in 2015 to $124 million in 2016, federal data shows. While the amount grew significantly, the fines represent only a fraction of the billions of dollars paid to nursing homes in Medicare and Medicaid funding each year.
“Enforcement without consequences is not enforcement at all,” said former CMS administrator Don Berwick, who led the agency from July 2010 to December 2011. “Many, many operators want to do the right thing, but the ones who need this kind of enforcement, they need serious attention.”
Just before Trump took office, the American Health Care Association and National Center for Assisted Living penned a letter to the president-elect, urging the fledgling administration to scale back what the industry group called a “punitive approach” to nursing home inspections. The industry group later wrote to then-Health and Human Services Secretary Tom Price, calling the fines imposed by CMS “out of control.”
In recent years, CMS limited the use of mandatory fines, giving its regional offices discretion over how to address violations, and discouraged the accrual of daily fines for infractions that occurred before inspections. Instead, the agency said it would impose more one-time fines.
Over the past two years, total fines dropped 10 percent from their highs in 2016 and 2017 and are down significantly so far this year, federal data shows. From January through August, CMS imposed about $46 million in total fines, roughly half of what was imposed during the same time period last year.
“A lot of the fines are so low they’re just considered the cost of doing business and companies pay them routinely,” Bonner said.
Kate Goodrich, former chief medical officer and director of clinical standards and quality at CMS, said the changes were made to bring fairness to the enforcement process. Some CMS regional offices, she said, imposed higher fines than others for the same infraction.
“We were not always in a very good position to lay down the hammer as strongly as we wanted to because we couldn’t be consistent about it,” said Goodrich, who left CMS in February after eight years. “To be perfectly honest, it left us kind of hamstrung. There was just this reality that when people could truthfully … say, ‘You know, your house isn’t in order,’ it made it just a little more difficult to be as stringent as we wanted to be.”
Goodrich also said the agency has at times been limited by federal law, which caps daily fines at about $22,000. Goodrich suggested the cap could be as high as $1 million.
“If we don’t end up using [fines] or they’re minimal, what’s the incentive for them not to fall down again?” she said. “There needs to be … a significant amount of incentive to drive behavior change and have that stick.”
Verma said CMS needs to support providers rather than rely solely on a system of regulations and inspections.
“Just handing out a fine doesn’t solve the problem,” she said.
‘There’s been no accounting’
Even when CMS imposed larger fines, the agency in March temporarily postponed collecting them.
Verma said the decision was made because routine inspections and most follow-up visits had been called off, leaving inspectors unable to determine whether earlier infractions were corrected.
“It really wouldn’t have been fair to the nursing homes,” she said.
Patient watchdog groups said the move was yet another sign that CMS was relaxing its enforcement protocols.
CMS imposed a $220,000 fine at the Andover Subacute and Rehabilitation Center II in New Jersey, where inspectors in April found the home failed to isolate sick patients or require that staff wear protective gear. About 30 residents had died at the time; police found some of the bodies in a makeshift morgue.
Since the inspection, another three dozen people have died. CMS said a payment notice for the fine was sent to the home on June 1. As of the end of September, the fine had not been paid.
“There’s been no accounting,” said Chris Petry, whose 86-year-old father, a retired advertising art director, died at the home. “I think any change that happens over there will have to be forced on them, otherwise it would’ve been done already.”
In a statement, the home said staff members did everything they could to keep patients safe.
“Despite all our efforts, the virus made its way into our facility, as it did in the majority of long-term care facilities across New Jersey,” owner Mutty Scheinbaum said. “We took every possible step to handle this crisis internally while simultaneously making dozens of outreaches to local, state, and federal agencies for help.”
Richard Mollot, executive director of the nonprofit Long Term Care Community Coalition, said the payment delays and enforcement decisions at CMS had devastating consequences at a time when regulators were needed most.
“Nursing home residents were never more vulnerable in our lifetime, if ever,” he said. “I don’t like to overuse the expression, but we literally abandoned them when the need for monitoring was the highest, when the need for quality assurance was the highest. They needed that oversight more than ever.”
Peter Whoriskey, Todd C. Frankel and Alice Crites contributed to this report, along with Michael Lee, Daniel Konstantino, Adam Rhodes and Zack Cherkas with Northwestern University’s Medill Investigative Lab.
How we did this story
To report this story, The Post used state and federal data when determining coronavirus case and death counts. About 30 states and the District release cumulative counts by facility. In addition, the Centers for Medicare and Medicaid Services began collecting this information in May.
Because CMS did not require nursing homes to report case and death counts before May, The Post used state data whenever possible. Assisted-living facilities and retirement homes are not regulated by CMS and were not included in The Post’s analysis.
To analyze infection-control citations and fines, The Post used CMS data that updates on a weekly basis the results of inspections and any subsequent penalties. The analysis also incorporated findings from more than 32,000 inspections made public by the agency.
CMS said some imposed fines do not appear in its public data set either because of a data-entry delay or because some fines are still pending. Some fine amounts may also be reduced later based on whether an appeal is filed and a discount is applied.
The Post received a list of citations and fines from CMS for the most serious infection-control infractions, including those that are pending, and counted them in the analysis. To account for potential data-entry delays, The Post drew on data updated in October but limited the analysis to March 1 through Aug. 31.