Industry Experts: Long-Term Care Issues Post-COVID

In the DRI Long-Term Care and Senior Living session titled “Post-COVID Headwinds: An Overview of Senior Living and Long-Term Care Challenges,” industry experts reviewed the impact of the White House Nursing Home Initiative, trends in insurance claims and litigation, and CMS initiatives.  The following summarizes the insightful overview provided by Tara Clayton of Marsh, Christopher Puri of Bradley Arant Boult Cummings, and Reina Reddish of the Tennessee Health Care Association on the impact the pandemic has had on long-term care providers and ways to prepare for the resulting governmental changes and legal challenges.


The Public Health Emergency was issued by HHS on January 31, 2020, with the Center for Medicare and Medicaid (CMS) quickly following with waivers (CMS 1135 Waivers) impacting long-term care facilities, including the suspension of normal survey activities, visitation, and restriction of internal activities.  Citing CMS data, long-term care facilities accounted for over 154,000 COVID deaths and over 1.16 million cases (through 8/22/22).  While dealing with this unprecedented outbreak, nursing homes have lost 15% of their workforce, or 238,000 caregivers according to the Bureau of Labor Statistics.  Assisted living and nursing homes experience reduced census starting early in the pandemic, which rebounded in mid 2022 to about 79% according to NIC.

White House Nursing Home Initiative

In February 2022, the White House released a plan titled “Protecting Seniors by Improving Safety and Quality of Care in the Nation’s Nursing Homes.”  The objectives of the program include sufficient and adequately trained staff, accountability for poor performing nursing homes and transparency of information to the public.  The panel highlighted how each of these objectives impact facilities and their defense counsel:

  • Minimum Staffing:
    • Improved staffing is a high priority of CMS, and they plan to issue proposed rules within one year.
    • The SNF Value Based Purchasing Program will include a scoring measure for total nurse staffing hours per resident day in FY 2026.
    • Many facilities report lack of availability of health care workers and concerns about funding minimum staffing mandates.
    • CMS has added weekend staffing and total staff turnover measures to the Nursing Home Compare website.
    • Providers question if non-compliance with mandated staffing levels will create negligence issues.
  • Ownership Data:
    • In follow-up to improving transparency, CMS is publishing data on hospital and nursing home ownership, including mergers, acquisitions, and consolidations. This Skilled Nursing Facility Change of Ownership database includes data beginning on January 1, 2016.  This database will facilitate searches and analysis by opposing counsel.
    • In addition to ownership transparency, the White House initiative seeks to require minimum corporate competency in order to participate in Medicare and Medicaid. The administration is seeking enforcement authority for CMS at the ownership level, rather than at the individual provider level as it currently stands.
    • Private equity ownership of LTC facilities is a particular target of policy makers in Washington, who allege PE owned facilities put “profits before people.”
  • Enforcement and Survey Initiatives
    • CMS is expanding enforcement actions against “poor performing facilities” based on off-site desk reviews.
    • Civil penalties for non-compliance can now be per-day rather than per-instance, which could be excessive with the current survey backlog.
    • The administration is seeking to increase the dollar limit on per-instance penalties to $1 million.
    • The administration is asking Congress for a 25% increase ($500 million) in funding for nursing home survey activities.
    • CMS’ Special Focus Facility program of the poorest performing nursing homes is being overhauled to include more facilities and tougher enforcement actions.

Claims Trends

Insurance costs for facilities are rising, with resident falls as the primary driver in both assisted living and skilled nursing.  Independent living facilities are also experiencing an increase in claims as more services are needed with an increase in age and acuity of residents.  Short staffing and the use of agency staff is also impacting claims, while inflation is impacting claim values.

They also discussed the increase in claims due to spoilation, or the destruction or alteration of evidence resulting from a party’s failure to preserve evidence relevant to a litigation or investigation.  Severe sanctions may be incurred due to spoilation.  It is important for facilities to understand what documents are needed in a response, which can be more difficult for those not using electronic medical record systems.

The group commented that claim numbers have increased; however, more are focused on traditional negligence claims than issues with COVID.  Thirty eight states had COVID liability protections during the pandemic, but not all applied to all types of long-term care facilities and in some states immunity protections have been pared back or expired.

The panel discussed ways to help providers “tell their story” about their response to the challenges of the pandemic.  This is important considering the “trust gap” created by restrictions on visitation resulting in the public perception of a lack of transparency.  Statistics on the number of cases and deaths in long-term care facilities have added to the difficult scenario in litigating claims post-COVID.

Excelas has extensive experience assisting clients in managing claims and litigation related to COVID.  Excelas’ Comprehensive Integrated Timeline Tool (CITT) contains an archive of over 10,000 documents of Federal and State Guidance (for select states).  This data is used to demonstrate the practices and the standards at the time an event occurred.  With the expected changes in survey criteria as a result of the administration’s Nursing Home Initiative, a database containing these guidelines in a quickly accessible format is an excellent tool in assisting in the defense of COVID-related claims and litigation.

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