As of today, nearly 12,000 people have died from the coronavirus at skilled nursing facilities across the United States. Tens of thousands more residents, in thousands of homes across the country, have also been infected. These are the confirmed cases, the actual numbers are likely much higher, and these elderly patients are the most susceptible to the virus and the most likely to have comorbidities. Supplies are running low and staffing is impossible, as those caretakers who have been infected or exposed must themselves be quarantined for safety.
This is a national emergency inside of a national emergency. Congress needs to act now.
Last week, President Trump and Vice President Mike Pence shared their concerns about the nursing home community and committed to increasing testing at these facilities. That is great, but Congress needs to do more, and fast, because hundreds of thousands of lives are at stake, and not just those who are in homes.
The senior living industry is serving as a backstop against the surge of people coming to America’s hospitals. In a very real sense, our entire healthcare system is depending on this industry’s continued success in disease mitigation and infection control. Failure on the front lines will result in increased hospital admissions, straining already limited healthcare resources.
In order to continue protecting the millions of seniors in senior living communities, not to mention the healthcare infrastructure they are buttressing, these communities need to have their funding explicitly included in federal relief packages. The initial $30 billion from the Public Health and Social Services Emergency Fund, which is designated for healthcare providers in the recently passed CARES Act, was overwhelmingly focused on hospitals. In fact, over 95% went to other healthcare providers. In addition, unlike restaurant chains, nursing facilities were not excluded from the Small Business Administration’s affiliate rules, and so they were ineligible for Paycheck Protection Program loans under the CARES Act.
These communities need four things, and they need them yesterday.
First, they need priority access to protective equipment and testing for both symptomatic and asymptomatic residents and staff. Thankfully, the White House has agreed to provide this.
Second, they need the Department of Health and Human Services to allocate money for senior living communities. Costs are skyrocketing related to added staffing, purchasing added infection control supplies, and expanding operations. A third-party analysis procured by Argentum and the American Seniors Housing Association shows that the increase in non-labor costs (infection control supplies and PPE) for a community without a COVID-19 virus-positive case can be up to 73%. For communities with a coronavirus diagnosis, it can be up to 103%.
Third, nursing homes need to be able to access the PPP loans. On average, labor costs have increased up to 8% for senior living communities that remain COVID-19 virus free and up to 18% for coronavirus-positive senior living communities. Communities are hiring additional employees to provide added services and are paying overtime and hero bonuses. Meanwhile, lost revenue is estimated at 8% to 23%. Because of the COVID-19 virus, communities cannot continue move-ins or use the revenue from new residents to counteract these expenses. All in all, lost revenue and an increase in expenses are projected at $40 billion to $57 billion over the next year. This means that many homes will fail.
Fourth, they need guaranteed protections from liability for coronavirus-related fatalities. On top of soaring costs and plummeting revenues, plaintiffs lawyers are already waiting to attack with countless lawsuits seeking to blame nursing homes and assisted living facilities for asserted coronavirus-related fatalities. Like hospitals, these facilities have played heroic front-line roles in caring for the frailest among us, despite tremendous hurdles in obtaining equipment and staff, in the face of opaque directives from regulators, and at times, under instruction to accept positive or presumed positive residents. These lawsuits would cripple the industry. The costs of defending against, let alone bearing liability for, baseless accusations arising from unavoidable circumstances would be in the billions, and would not benefit the American people. The industry needs protection against liability in order to survive.
In a statement released this past Thursday, the European director of the World Health Organization said that up to half of the 110,000 coronavirus deaths that happened in Europe happened in nursing homes, where the staff was overworked, underpaid, and without the protective gear and support that they needed.
We cannot let that happen here. Industry leaders have been begging Congress to help for weeks, but as of yet, there has been no specific relief. There is simply no more time to waste.
Dr. Mark Goldfeder is an attorney and law professor who has served on President Trump’s private legal team in matters unrelated to the COVID-19 virus. Dr. Ira Bedzow is an associate professor of medicine, the director of the Biomedical Ethics and Humanities Program, and head of the UNESCO Chair in Bioethics at New York Medical College.
