Letter to the Editor, The Journal of Post-Acute and Long-Term Care Medicine
To the Editor:
In the tenth month of a pandemic that has dealt a lethal blow to residents of long-term care across the country, some nursing home industry advocates and even state public health authorities are urging that we retool oversight of these facilities to deemphasize strong enforcement of safety rules in favor of a cozier and more cooperative relationship between state agency surveyors or inspectors and the industries they regulate.
Such proposals are not only deeply dangerous to residents of long term care, they are profoundly ahistorical. For decades, many nursing home owners have adopted safety measures only under compulsion by regulators. Although automatic sprinklers are the only way to ensure against multiple fire deaths in institutions like nursing homes, many owners resisted installing them. They reversed course only when, after more than 30 residents and staff died in highly publicized fires in 2 states in 2003, the federal government finally imposed regulations requiring automatic sprinkler systems in all nursing homes.
Consumer safety measures, whether seat belts, sprinkler systems, or adequate staffing in nursing homes, require an upfront investment and we cannot rely on an honor system to make sure that lucrative businesses like nursing home chains make that investment to comply with safety rules, even when they save lives.
When violations of rules regarding good infection control are not accompanied by financial penalties, we teach the nursing home industry that such misconduct is not to be taken seriously, even in a pandemic. 1 Significant financial penalties on providers take away an incentive to treat fines for noncompliance as the cost of doing business.
Indeed, as the World Health Organization has pointed out, accountability is foundational to building strong and effective health systems, and “[l]egal and regulatory sanctions are at the core of enforcing accountability.” 2
It is precisely this crucial enforcement mechanism that finds itself under attack during the height of a public health crisis killing tens of thousands in long-term care. In a recent JAMDA editorial, the authors argue that the inspection process for identifying nursing homes that fail to comply with safety regulations is too “adversarial” and “punitive.” 3 Public health authorities in California have similarly proposed that surveyors “partner” with and “mentor” the same nursing facilities they are charged with citing for violations of health and safety rules, creating unresolvable conflicts of interest. 4
These misguided suggestions are not new. They have been considered and rejected for decades as undermining the core mission of good health care regulation.
Before 1987, federal policies permitted states to consult and collaborate with individual nursing homes on improving quality. Congress explicitly rejected this model in 1987 after the acclaimed 1986 study by the Institute of Medicine, Improving the Quality of Care in Nursing Homes, found that the inherent conflicts of interest caused by directing inspectors to be both partners with nursing homes and their regulators had seriously compromised enforcement of care standards and contributed to the scandalously poor care in nursing homes throughout the nation during the 1970s and 1980s.
As part of a massive 2003 congressional inquiry into nursing home failures, Dr. William Scanlon, then Director of Health Financing and Public Health Issues at the Government Accountability Office, offered the following scathing rebuke of the concept that surveyors should play a more “consultative” and less regulatory role in their oversight of facilities.
“The nursing home industry is a $100 billion a year industry, employing tens of thousands of health professionals. It is incongruous to me to think that it needs the consultative assistance of a government surveyor to correct problems that every non-health professional in this room would instantly agree involved care that was woefully lacking.” 5
Structural changes in the nursing home industry since 2003 have made care worse for residents in too many facilities. Real estate investment trusts, private equity firms, and rapacious private owners, with little knowledge of and interest in, providing high quality care to residents, are increasingly dominant as owners and managers of facilities across the country. States exercise minimal oversight of changes in ownership and management and the federal government exercises no independent oversight.
The pandemic has left residents even more vulnerable. Visitors who provided valuable oversight and care have been strictly limited, waivers of minimum staffing requirements are freely dispensed, and regulators have suspended annual inspections intended to ensure facilities are complying with rules protecting the people most vulnerable to COVID-19.
Now is not the time to hamstring surveyors in their enforcement role, but to empower them to cite bad actors and impose stiff financial penalties to deter dangerous conduct. Without strong systems for accountability, the darkness that already looms over long-term care residents in the next few months of the pandemic will grow much worse.
Mike Dark, JD
California Advocates for Nursing Home Reform
San Francisco, CA
Toby S. Edelman, JD
Center for Medicare Advocacy
Richard J. Mollot, JD
The Long-Term Care Community Coalition
New York, NY
Charlene Harrington, PhD, RN
Department of Social and Behavioral Sciences
University of California, San Francisco