The industry was one of his first targets for deregulation, and he’s been on quite a tear…
Residents and workers at nursing homes or similar long-term care facilities currently make up almost 1/3 of all Coronavirus deaths in the U.S., according to the Kaiser Family Foundation. More than 28,000 people. And the New York Times suggests that’s probably low, since reporting of that data in many cases is still incomplete or not publicly available. We all know by now COVID-19 poses the greatest danger to older people. Still, those numbers are staggering.
At the same time, the White House has only just suggested—not yet mandated—that all nursing home residents in the U.S. get tested within the next two weeks. Although in a lesser heeded (and heated) moment during the President’s instantly infamous Rose Garden news conference this week, Trump told an Associated Press reporter who asked him about nursing home testing that he’d mandate it “if you’d like”, but then almost instantly shifted gears to place all responsibility and blame on governors, saying:
“I think, frankly, some of the governors were very lax with respect to nursing homes. It was obvious right from the beginning. The State of Washington, where 26 or 28 people died very early on. And I would have said, ‘nursing homes.’ And I did say ‘nursing homes.’”
No, he didn’t.
Trump’s Centers for Medicare and Medicaid Services Administrator, Seema Verma, who is in charge of regulating nursing homes, only recently got around to requiring nursing homes to report all their COVID-19 cases, to the CDC, which she tried to spin as a “crackdown”. After that, the Trump Administration agreed to send those facilities protective supplies from the government stockpile.
None of that has come easy in the Trump Administration. Quite possibly because had they made those recommendations earlier, they wouldn’t have had the tests and equipment to back them up. Nor is it certain they will now. Because it’s also become a pattern for the administration to say they “will” have a certain amount of testing or equipment by a certain date, and then when they don’t, change it to “well, we still have a lot, and are doing great compared to other countries”, and then reset expectations with a new certain amount at a new certain date. Rinse and repeat.
Nursing homes were one of the first industries to get Trump’s “all regulation is over-regulation” treatment, when Trump took office, despite already having a spotty record at best. And that’s left some of the most vulnerable members of our society exposed.
Nursing homes have always been breeding grounds for infection. That’s part of why Congress passed the Nursing Home Reform Act as part of a 1987 budget bill, which was signed by President Reagan. That’s part of why President Obama moved to significantly strengthen regulations.
And then it became one of the first things Trump took to undo when he took office in 2017. And then took another big run at it just last year. An ecstatic industry booster gushed to Politico back in 2017:
“We have been shooting for the moon, just bringing up every possible issue we think they have the ability to change….This is the first time that any administration has seemed to be so focused on regulatory relief.”
And they got it.
While Trump’s efforts certainly weakened oversight of the industry, or at least left more of it up to the industry itself, which is never a great standard for ensuring stringency, it’s hard to draw a direct connection between that and the mounting and lopsided number of cases of COVID-19. And this isn’t only a problem in the U.S.: Sweden, which made few efforts at mitigation among the general population, is now finding cases skyrocketing in managed care facilities.
Trump’s deregulation of the nursing home industry has been very broad. One of the most common words we found when we went through his many deregulation orders and proposals is “burdensome”. Which seems to be a slightly less whiny version of his preferred gripe: “unfair”. That word pops up again and again. So let’s take a look at a few of the many areas where he’s alleviated those “burdens” on the nursing home industry:
- He made it much more difficult for residents to sue nursing home companies if they are injured or mistreated, by allowing those companies to force residents to sign an arbitration agreement as a condition to being admitted, which the previous administration did not allow. Private arbitration is usually seen as being more favorable to corporations, and less favorable to people bringing complaints. And even if corporations are found liable, cash awards tend to be much smaller than in court. And now, nursing homes are seeking further protection. They want Trump to make them immune to any legal action that may come as a result of COVID-19 deaths. Although the American Bar Association no doubt had a vested interest, it was also prescient when it warned shortly after Trump took office: “This is a very dangerous time for residents.”
- He changed the way nursing homes are fined for many violations. One of the biggest changes President Obama made was to fine nursing homes for violations every single day until those violations were fixed. Trump changed it to one-time fines for many violations. Meaning for nursing homes, it became more of a simple cost of doing business, and less of something they were compelled to do something about or else face never-ending consequences.
- He made it much easier for doctors to prescribe antipsychotic medications to nursing home patients for far longer periods of time, without checking on them as much.
- And more recently, he proposed changes to infection prevention. What happened here is that nursing homes–under the old rules–are required to have an “Infection Preventionist” with specialized training on site at least part time. So no consultants popping in and out every once in a while. Instead, Trump proposed, well, nothing. His administration is trying to change the requirement to the very vague “sufficient time to…achieve the objectives set forth”. And it’s asked the nursing home industry to define that: “we are soliciting comments on how should it be determined that the IP [Infection Preventionist] has sufficient time.” Now, these proposed changes are so new, nothing’s gone into effect yet, and the old rules are still supposed to apply. At the same time, the Trump Administration is even now continuing to push ahead with this change. So we can’t imagine the President’s people would be very focused on enforcing a rule they expressly don’t like and are actively planning to neuter.
The biggest irony in all this may be that while you’d think the widespread nursing home outbreaks would lead to the federal government tightening up on them, and more strict enforcement of rules, it’s much more likely to lead to even more deregulation of the industry, not less. That’s because Trump’s cutting all kinds of big businesses all kinds of slack because of all the new “burdensome” pressures COVID-19 is putting on their ability to comply with government regulations. Which, by and large, he wants to get rid of anyway. This just speeds things up.