State Laws Change to Protect Nursing Home Residents During Covid-19

State Laws Change to Prot…

Nursing home residents in the US suffered severe consequences from COVID-19 including high infection rates, morbidity, and mortality. The combination of nursing home residents' vulnerable health, inherent risks of congregate healthcare living, and inadequate infection control procedures during the pandemic equaled disastrous results for the elderly. Also, though, lessons of isolation due to physical separation from family have taken a toll both emotionally and physically on residents and families. In short, COVID-19 revealed a host of underlying problems that exist in US nursing homes. After the summer when we saw more and more resurgent cases of COVID-19, particularly with new variants popping up, finally the Centers for Medicare & Medicaid Services (CMS) is changing its protocols for resident visitation. But that alone is not enough.

State Legislation Goes Beyond Nursing Home Guidelines

Now state legislatures are enacting laws that go beyond CMS nursing home guidelines to address the well-being of its residents. A review of state legislatures finds twenty-three politically and geographically diverse states have enacted more than seventy new COVID-19 related provisions affecting the operations of nursing homes. The laws cover a wide range of issues, but all ultimately are for the benefit of nursing home residents.

Assuring a Nursing Home Advocate

One area of change is to make sure residents have an advocate. Connecticut law now permits its nursing home residents to designate an "essential support person" who can care for a loved one even during a public health emergency. In March 2021, the Alabama legislature enacted the "No Patient Left Alone Act." Like Connecticut's law, it ensures that residents have an advocate by their side, not merely a visitor stopping in for a quick hello.

Providing Devices to Stay in Touch

Other states are ramping up efforts to provide tablets and other devices through lending libraries. Residents can borrow devices to stay digitally "in touch" with their families and loved ones. Digital contact becomes necessary for some nursing home residents with families spread across the country and unable to make daily, even weekly visits to advocate for and combat their loved ones' isolation. Connecticut spearheaded a digital device program in 2020, as have many states. This year, Illinois is reducing the cost of providing this equipment through grants via state funds received when health and safety violations of nursing homes reach a financial settlement.

Addressing Staffing

Staffing levels are another issue the states are tackling. The office of the Attorney General of New York State in the Nursing Home Response to COVID-19 Pandemic report findings show lower COVID-related death rates in nursing homes with higher staffing levels. Arkansas Advocates for Nursing Home Residents Martha Deaver concurs that you end up cutting care when you cut staff. Addressing staffing shortages is a long-time response to a 1987 federal law requiring CMS facilities to maintain nursing staff sufficient to "attain or maintain the highest practicable well-being of each resident." This vague standard has been tightening up through states setting their own more specific staffing rules.

Legislation folder for Nursing HomesMonitoring Spending

Another element states are addressing is ensuring facilities are not receiving excessive profits from government payouts to care for residents. The state of New Jersey requires nursing homes must spend ninety percent of their revenues on direct care. New York deems the number to be seventy percent, including 40 percent to pay direct-care workers. In Massachusetts, regulations mandate nursing homes devote seventy-five percent on direct-care staffing costs with no more than two people living in one room.

The Intersection of State and Federal Measures for Nursing Homes

These states' patchwork protections for nursing home residents are part of the nation's nursing home care regulatory system. CMS sets the minimum requirements providers must meet in their facilities to participate with the Medicare/Medicaid programs at the federal level. It is permissible for states to implement specific additional requirements, which is a long-standing practice. These additions, however, may not conflict with existing federal requirements.

Because each state can implement additional nursing home regulatory improvements, there are uneven nursing home care provisions throughout the country. In truth, it may exacerbate existing health care disparities despite financial status, race, or gender. According to the Silver Century Foundation, Richard Mollot, executive director for the advocacy group Long Term Care Community Coalition, finds this hodgepodge approach "a poor substitute for comprehensive federal rules if they were rigorously enforced." If you are a nursing home resident or have a loved one who is, today's best bet is to know the additional measures your state provides for your continuing contact with your loved ones while the country waits for federal mandates to catch up to the needs

Attorney Jana McCreary

Jana R. McCreary's Profile Image
Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over eighteen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduatin… Read More

Contact Me Today for a Consultation

Contact