The ABA supports many of the nursing home reforms proposed by the Biden administration

Elderly Law

The ABA supports many of the nursing home reforms proposed by the Biden administration

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Nina Kohn, a professor at Syracuse University College of Law, has long focused on the intersection of the law and the experiences of older adults, including those in need of long-term care.

As chair of the ABA Civil Rights Section and the Elders Affairs Committee of Social Justice, Kohn promotes association policies that address issues with the quality of care in nursing homes. In recent months, he has helped draw attention to three policies that are closely in line with the nursing home reforms announced by the Biden administration in February.


Nina Kohn is a professor at Syracuse University College of Law.

“The ABA has historically played a leadership role in thinking about long-term care law,” says Kohn, who is also a visiting professor and distinguished senior law scholar at Yale’s Solomon Center for Health Law and Policy. Law School. “This has been done in part through particular entities within the ABA, such as the Commission on Law and Aging, which has been an important resource for lawyers, but also through some discrete resolutions that the ABA has adopted in the over the years “.

According to the Office of the Inspector General of the United States Department of Health and Human Services, more than 1.4 million people live in more than 15,500 Medicare and Medicaid certified nursing homes. In its announcement, the Biden administration highlighted the severe impact of COVID-19 on the residents and staff of these facilities, with more than 200,000 deaths from the virus in the past two years.

It tasked HHS to develop and implement reforms that aim to “improve the safety and quality of home care, hold nursing homes accountable for the care they provide, and make the quality of care and ownership of facilities more transparent in so that prospective residents and their loved ones can make informed decisions about care ”.

ABA adopts several policies to help improve long-term care

In an initiative by the Biden administration, HHS Centers for Medicare & Medicaid Services will explore how to phase out rooms in nursing homes with three or more residents and promote private rooms.

The ABA adopted a resolution in August urging Congress and the HHS to consider implementing specific standards in nursing homes that require single rooms and private bathrooms “given their safety and the benefits of controlling infections in public health emergencies such as the COVID-19 pandemic. ” It also asks CMS to change Medicare and Medicaid regulations and policies to pay for these accommodations for all residents.

“This is someone’s house,” says Kohn. “This is perhaps the place where they will spend years of their life. If there are two or three beds in the room, it is really difficult for people to exercise their civil rights and basic civil liberties ”.

“But also, as we’ve seen in very tragic details with COVID-19, multi-bed rooms make it really difficult to engage in good infection control,” he adds.

According to another proposal, the Biden administration asks CMS to “improve public transparency of facility ownership and safeguard nursing home residents.” It suggests ways in which the agency can achieve this, including by improving the transparency of facilities’ finances; enhance Nursing Home Care Compare, a website that helps families choose a facility for older relatives; and examine the role that private equity investors play in the sector.

At its mid-year meeting in February, the ABA adopted a resolution outlining a similar action plan. Urges Congress and the CMS to create a national system to monitor nursing home ownership reports to ensure disclosure of all owners, including parents, management and real estate companies. He also asks them to increase their focus on nursing home chains by adding information about company-owned facilities to Nursing Home Care Compare.

“Making the decision to place your loved one, a vulnerable loved one, in a nursing home is a difficult decision even under the best of circumstances,” Louraine Arkfeld, former chair of the Law and Aging Commission, told the House of Delegates. . at the moment. “So, you don’t want to know who owns the nursing home? Who really runs the retirement home? Who really controls the decisions, the care decisions, that will be made?

Kohn also highlights a third initiative, in which the Biden administration is encouraging CMS to increase fines and enforcement sanctions against underperforming nursing homes. He says this proposal follows a longstanding 1983 ABA policy that urges the use of effective enforcement mechanisms to ensure adequate quality of care in facilities participating in Medicare and Medicaid.

“For decades now, ABA has understood how important application is in this space,” says Kohn. “On paper, nursing home residents have solid rights to quality of care and quality of life. The problem is that there is no effective application of these rights and, consequently, those that are very clear requirements on paper end up being treated more as ambitious goals “.

Mark Parkinson_ Courtesy of AHCA and NCAL Mark Parkinson is the president and CEO of AHCA / NCAL. Photo courtesy of AHCA / NCAL.

Defenders and industry groups react to nursing home measures

The Biden administration also plans to establish a minimum staffing requirement in nursing homes. As part of this process, CMS asked for public feedback on how an increase in staffing could lead to better health outcomes for residents.

Toby Edelman, a senior attorney at the Center for Medicare Advocacy, has represented seniors in long-term care facilities since 1977. He has been discussing many of the possible changes, and particularly the staffing issue, for much of that time.

“The staffing in nursing homes is inadequate,” says Edelman. “There was a huge report that was done for the federal government in 2000 that found that most nursing homes don’t have enough staff, and they haven’t actually changed. If anything, it got a lot worse during the pandemic. “

The American Health Care Association and the National Center for Assisted Living, which represent over 14,000 long-term and post-acute care providers, agree that there was a shortage of workers even before the COVID-19 pandemic.

But Mark Parkinson, president and CEO of AHCA / NCAL, said in reaction to the Biden administration’s proposals that facilities cannot meet additional staffing requirements when they already can’t find employees to fill current positions or compete with employers. with more resources.

“Further supervision without corresponding assistance will not improve resident care,” Parkinson said in a statement. “To make real improvements, we need policy makers to prioritize investments in this chronically underfunded healthcare sector and support the improvement of providers of the metrics that matter to residents.”

Congress is considering the Nursing Home Improvement and Accountability Act, which would establish reporting, staffing, and other quality control requirements for nursing homes. This legislation could also provide additional resources through Medicaid to support staff improvement and raise wages.

Lori Smetanka_Credit to Jacqui South Photography
Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care. Photo by Jacqui South Photography.

Lori Smetanka, the executive director of the National Consumer Voice for Quality Long-Term Care, a national nonprofit defense organization, has also been pushing for industry reforms for decades. You credit ABA for supporting many of the proposed provisions.

“We have invested a lot of money in the system,” says Smetanka. “This is not about direct care as it should, to the extent it should, and the result is that residents are not receiving the services we are paying for and are entitled to.

“So, the more voices we have to speak up and acknowledge this fact, as the ABA only broadly reinforces the need for these changes.”

See also:

ABA Journal: “Coronavirus-related deaths in nursing homes require lawsuits and questions about who is responsible”

ABAJournal.com: “At least 15 states grant legal protection to long-term care facilities during the pandemic”