Note from staff: This lawsuit, brought by the now director of the U.S. Department of Health and Human Services, not only alleges problems with the discharge process, it alleges that SNFs submitted false data to Five-Star, specifically nurse staffing data.

Attorney General Becerra Sues Nursing Home Chain for Misrepresenting its Quality of Care and Putting Seniors, People with Disabilities at Risk

Today's lawsuit pertains to Brookdale's current and former California skilled nursing facilities located in the cities of Bakersfield, Camarillo, Carlsbad, Northridge, Rancho Mirage, San Diego, San Dimas, San Juan Capistrano, Santa Rosa, and Yorba Linda 

March 15, 2021

SACRAMENTO – California Attorney General Xavier Becerra today joined a coalition of District and City Attorneys, led by Kern County District Attorney Cynthia Zimmer, in filing a lawsuit against Tennessee-based Brookdale Senior Living, Inc. (Brookdale), the nation’s largest senior living operator. Today’s lawsuit, which concerns Brookdale’s ten California skilled nursing facilities, alleges that Brookdale ignored laws that protect patients' safety when they are discharged from a facility. The lawsuit also alleges that Brookdale gave false information to the Centers for Medicare & Medicaid (CMS), information which CMS uses to award “star ratings” to skilled nursing facilities so that consumers can choose a quality facility. By lying to CMS, Brookdale fraudulently increased its star rating in several categories to attract prospective patients and their families.

The lawsuit alleges that Brookdale failed to properly notify its patients and families of transfers and discharges. Skilled nursing facilities are required to give notice of transfer or discharge at least 30 days in advance, or as soon as practicable. Brookdale failed to timely provide this required notice to its patients, with a copy to the local ombudsmen. Brookdale also failed to properly prepare its patients for transfer or discharge. As a result of these actions, Brookdale endangered the health of its patients and also left families scrambling to find other places to care for their loved ones.

The lawsuit also alleges that Brookdale misrepresented the quality of its care to the public by reporting false information to CMS. As a means of helping the public to choose a skilled nursing facility, CMS rates facilities on several quality measures on a scale of one to five stars, which are then posted to the CMS website. The lawsuit alleges that Brookdale over-reported its nursing staffing hours to CMS, and by doing so, Brookdale was awarded undeserved four-and five-star ratings. In the lawsuit, the coalition argues that by engaging in these unfair business practices, Brookdale violated both the Unfair Competition Law and False Advertising Law.

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ASPR TRACIE Emergency Preparedness Report: Identifying and Overcoming Healthcare Communications Vulnerabilities: Nashville, TN

The Center for Medicare Advocacy released a new report – Geography Is Not Destiny: Protecting Nursing Home Residents from the Next Pandemic – which explores facilities’ responses to the coronavirus crisis and examines how residents’ deaths were not “inevitable”, as some have claimed. The report contends that COVID-19 exploited and exacerbated long-standing issues, such as staffing, infection control, and management problems, that existed for decades in the long-term care industry.

As our nation’s nursing homes continue to reel from the unprecedented toll that COVID-19 has taken, questions remain about how many deaths could have been avoided, and – crucially – what can be done to save lives moving forward to prevent a similar catastrophe in the future. Nationwide, 36% of COVID-related deaths have occurred in long-term care facilities (and in some states that figure jumps to over 60%). These statistics are even more shocking considering that less than 1% of the nation’s population live in these facilities.

 “The wrath of COVID-19 in our nursing homes was felt, in large part, because we as a nation have not prioritized fixing these issues,” states Cinnamon St. John, the report’s author – who is also the Center’s Health and Aging Policy Fellow and Associate Director of NYU Rory Meyers’ Hartford Institute of Geriatric Nursing. “COVID-19 will very likely not be the last pandemic we experience in our lifetimes. If we don’t address these issues now, will see these mass casualties again. The good news is that we know more now. The lessons are clear. But we must act. The currency is lives – lives lost, or lives saved,” she added

The report:

·         Analyzes and challenges the assertion that “Geography is Destiny” as the prevailing theory of nursing home transmission (concluding “a facility’s location does not equate to a facility’s fate”)

·         Identifies lessons learned for nursing homes

·         Provides specific policy recommendations for change

The report also examines both the challenges and successes of nursing home administrators who have been combatting COVID-19 on a daily basis. “You can either panic during the pandemic or you can be prepared during the pandemic. It’s better to be prepared,” says Reverend Derrick DeWitt, Director and CFO of the Maryland Baptist Aged Home. His nursing home, with about a 90% Medicaid resident population, has remarkably remained COVID-free to this day.

These Frequently Asked Questions cover the following topics:

1.      Q: CMS posts county positivity rates for staff testing. What if my state or county also posts rates of COVID-19 positivity for each county?

2.      Q: Should nursing homes use the percent positivity rate or the color-coded positivity classification to determine their frequency for routine testing (i.e., twice a week, weekly, or monthly)?

3.      Q: Given CMS’ modifications to the methodology for test positivity to include two weeks of data, do I still have to wait two weeks to reduce testing frequency?

4.      Q: Should facilities always perform outbreak testing for all residents and staff when a new COVID-19 infection is identified

5.      Q: Can staff be tested by a different entity than the nursing home?

6.      Q: Some staff or care providers do not come into the facility each week; do I have to test them at the same frequency as all staff? For example, do they need to come into the facility just to be tested?

7.      Q: What is a false positive Point of Care antigen test result and what should we do if we potentially have one?

8.      Q: What steps can be taken to reduce the potential for false-positive antigen tests?

9.      Q: What if a facility is trying to comply with the testing requirements, but is unable due to factors outside of its control?

10.  Q: Do individuals providing emergency medical services (EMS) need to be tested?

11.  Q: What does the 48-hour turn-around time mean?

12.  Q: When a facility admits a new resident with COVID-19, does that trigger outbreak testing?

The Occupational Safety and Health Administration cites lessons learned from its COVID-19 inspections and citations, as well as noting nursing homes and other companies that have been fined since the COVID-19 pandemic began.

 Lessons Learned: Frequently Cited Standards Related to COVID-19 Inspections.(November 6, 2020).

Common COVID-19 Citations: Helping Employers Better Protect Workers and Comply with OSHA Regulations. (November 6, 2020).

Respiratory Protection Guidance for the Employers of Those Working in Nursing Homes, Assisted Living, and Other Long-Term Care Facilities During the COVID-19 Pandemic

This guidance is designed specifically for nursing homes, assisted living, and other long-term care facilities (LTCFs) (e.g., skilled nursing facilities, inpatient hospice, convalescent homes, and group homes with nursing care). While this guidance focuses on protecting workers from occupational exposure to SARS-CoV-2 (the virus that causes COVID-19 disease) by the use of respirators, primary reliance on engineering and administrative controls for controlling exposure is consistent with good industrial hygiene practice and with OSHA’s traditional adherence to a “hierarchy of controls.”

Initial and Repeated Point Prevalence Surveys to Inform SARS-CoV-2 Infection Prevention in 26 Skilled Nursing Facilities — Detroit, Michigan, March–May 2020

Early Release / July 1, 2020 / 69

Guillermo V. Sanchez, MSHS, MPH1; Caitlin Biedron, MD1; Lauren R. Fink, MPH2; Kelly M. Hatfield, MSPH1; Jordan Micah F. Polistico, MD3,4; Monica P. Meyer, MS, MPH3,4; Rebecca S. Noe, MN, MPH1; Casey E. Copen, PhD1; Amanda K. Lyons, MS1; Gonzalo Gonzalez, DNP2; Keith Kiama2; Mark Lebednick2; Bonnie K. Czander2; Amen Agbonze2; Aimee R. Surma, MS2; Avnish Sandhu, DO3,4; Valerie H. Mika, MS4; Tyler Prentiss, MA5; John Zervos, JD5; Donia A. Dalal2; Amber M. Vasquez, MD1; Sujan C. Reddy, MD1; John Jernigan, MD1; Paul E. Kilgore, MD4; Marcus J. Zervos, MD4,5; Teena Chopra, MD3,4; Carla P. Bezold, ScD2; Najibah K. Rehman, MD2 (View author affiliations)

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Summary

What is already known about this topic?

Symptom-based screening in skilled nursing facilities (SNFs) is inadequate to detect SARS-CoV-2 transmission. Repeated point prevalence surveys (serial testing of all residents and health care personnel at a health care facility irrespective of symptoms) can identify asymptomatic cases during outbreaks.

What is added by this report?

Repeated point prevalence surveys at 26 Detroit SNFs identified an attack rate of 44%; within 21 days of diagnosis, 37% of infected patients were hospitalized and 24% died. Among 12 facilities participating in a second survey and receiving on-site infection prevention and control (IPC) support, the percentage of newly identified cases decreased from 35% to 18%.

What are the implications for public health practice?

Repeated point prevalence surveys in SNFs can identify asymptomatic COVID-19 cases, inform cohorting and IPC practices, and guide prioritization of health department resources.