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The Consequences of Regulatory Failure: 132,000 Dead Nursing Home Residents

A new article in the Georgetown Law Review, “Nursing Homes, COVID-19, and the Consequences of Regulatory Failure,” by Syracuse Professor Nina Kohn attempts to explain why COVID-19 was so devastating to nursing homes in 2020. In the article, Professor Kohn condemns the idea that the enormous number of COVID-19 infections and deaths in nursing homes was “inevitable” or “largely outside of [facilities’] control.” She goes on to summarize:

[T]he nursing-home-as-victim narrative belies the deliberate policy choices and regulatory failures that have shaped long-term care in the U.S. and enabled nursing homes to make choices that have long endangered the health and welfare of their residents. . . . The skyrocketing death rates in nursing homes are not merely the result of glitches in the public health response to COVID-19, but rather a predictable consequence of the failure to enforce federal regulations, gaps in regulatory requirements for facilities, and policies that steered vulnerable, older adults into these institutions in the first place. 

Professor Kohn critiques the nation’s slow rollout to address the massive vulnerability of nursing home residents to COVID-19: routine testing of staff and residents was not required until six months after the pandemic hit, PPE was not provided to nursing homes, and staff were permitted to work in multiple facilities. These failures combined with longstanding nursing home problems like chronic understaffing, entrenched underenforcement of regulatory standards, and disproportional long term care spending on institutional settings over home and community based settings (“perhaps the most fundamental policy failure”), to create a system that was almost totally unequipped to deal with a highly contagious, highly lethal virus.

The policy prescriptions Professor Kohn advises are comprehensive. She observes that facilities providing awful nursing home care are paid just about the same as facilities providing high quality care. Policymakers must do a better job of aligning nursing home reimbursement with higher quality. Higher direct care staffing should either be mandated or financially rewarded. The U.S. and states should consider adopting spending floors on direct care. Finally, more public dollars should be allocated away from institutional settings and directed to home and community based services.

Professor Kohn ends her article with a familiar axiom: creating a more humane long term care system is completely doable – the question is whether society and our policymakers are willing to make the commitment.