Nursing homes fought federal emergency plan requirements for years -- now they’re coronavirus hot spots

Nursing homes fought federal emergency plan requirements for years -- now they’re coronavirus hot spots
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On Dec. 15, 2016, the nation’s largest nursing home lobby wrote a letter to Donald Trump, congratulating the president-elect and urging him to roll back new regulations on the long-term care industry.


One item on the wish list was a recently issued emergency preparedness rule. It required nursing homes to draw up plans for hazards such as an outbreak of a new infectious disease.

Trump’s election, the American Health Care Association, or AHCA, wrote, had demonstrated that voters opposed “extremely burdensome” rules that endangered the industry’s thin profit margins.

“Part of the public’s message was asking for less Washington influence, less regulation, and more empowerment to the free market that has made our country the greatest in the world,” AHCA wrote. “We embrace that message and look forward to working with you to improve the lives of the residents in our facilities.”

The letter was another salvo in the industry’s fight against regulations designed to stop diseases like COVID-19 from devastating elderly residents of the nation’s nursing homes, according to a review of documents and data by New Mexico In Depth; The News & Observer of Raleigh, North Carolina; and ProPublica.

The lack of pandemic plans helps explain why nursing homes have been caught unprepared for the new coronavirus, patient advocates and industry observers said. Across the country, more than one in four nursing homes have registered an outbreak, according to mediareports. More than 16,000 nursing home residents and workers have died, accounting for 17% of COVID-19 deaths nationwide, according to an AARP tally on May 18. That figure is likely an understatement of the true scope of the harm.

Ongoing questions about the regulations may also have played a role. The 2016 rules mandated planning for all kinds of hazards, citing Ebola as an example. In 2019, the Trump administration clarified that nursing homes needed to include a specific plan for outbreaks of unfamiliar and contagious diseases — such as the coronavirus.

The plans must address how facilities will respond in an emergency — specifying how nursing homes will decide to shelter in place or evacuate and how they will provide residents with food, water, medicine and power. Nursing homes have to train their staff on these plans and practice them at least twice a year, if possible by participating in a drill with local agencies.

Some nursing homes were slow to comply, according to an analysis of inspection data, watchdog reports and interviews with ombudsmen and advocates. Inspectors have found more than 24,000 deficiencies with nursing homes’ emergency plans between November 2017, when the so-called “all hazards rule” took effect, and March 2020, according to public data reviewed by the news organizations. The violations occurred in 6,599 facilities, equal to about 43% of the country’s nursing homes.

Because of how the Centers for Medicare and Medicaid Services tracks the data, it’s not possible to say exactly how many of the emergency planning violations related specifically to a failure to plan for an infectious disease outbreak. Failures to meet routine infection control standards were excluded from the analysis.

But nursing home advocates say that more detailed plans accounting for expected staff and equipment shortages would have likely resulted in fewer deaths and illnesses at nursing homes stricken by the coronavirus. The current rule requires nursing homes to make contingency staffing preparations, but it doesn’t require stockpiles of personal protective equipment, or PPE.

“It’s just a river of grief, and it could have been prevented,” said Pat McGinnis, executive director of California Advocates for Nursing Home Reform.

Emergency plans help facilities train their staff ahead of time and guide tough decisions during a crisis, said Ted Goins, the president and CEO of Lutheran Services Carolinas, a nonprofit based in Salisbury, North Carolina, that runs several highly rated elder-care facilities.

“COVID-19 is a perfect example of why we have emergency plans in our facilities, and I’m sure that’s why it’s a requirement,” Goins said.

AHCA declined to make any executives available for an interview. In a statement, the group said the pandemic shows that nursing homes should be a bigger priority for resources but not for regulation.

“As we assess the COVID-19 pandemic and how to prepare our healthcare system for future outbreaks, more regulation is not necessarily always the answer,” AHCA said in the statement. “There will be time to look back and determine what we can do better for future pandemics or crises.”

One place to start: a nursing home and rehabilitation center in Albuquerque, New Mexico, with five deaths and 42 infections tied to a COVID-19 outbreak and no plan for dealing with a pandemic, according to its employees and New Mexico public records.

“Pandemic response? I mean, I don’t think anybody was really prepared for a pandemic of this level or this quickly,” said Edwardo Rivera, the facility’s administrator. “We did have some things in place, but nothing could have prepared us for what COVID-19 was.”

An Emergency Call

Robert Potts, 91, once flew America’s leaders around the globe.

A retired Air Force colonel who flew combat missions in Korea and Vietnam, Potts returned to the United States to serve as pilot for Air Force One and Air Force Two in the 1960s, according to service records and a family member. He spoke of flying President John F. Kennedy and first lady Jacqueline Kennedy.

After he fell at home and hit his head in March, Potts wound up at Advanced Health Care of Albuquerque, part of a nationwide network of 22 post-hospitalization rehabilitation and skilled nursing facilities.

The Albuquerque facility is a top-rated rehabilitation center with personal bedrooms and wine glasses in the dining hall. It takes care of patients needing physical, occupational or speech therapy after hospitalization.

In early April, AHC of Albuquerque staff and residents began testing positive for the coronavirus. Concerned about her father’s health, Potts’ daughter Susan wanted to bring him home. Somebody from the facility — Susan could not remember exactly who — assured the family that Potts had tested negative for COVID-19.

When the AHC of Albuquerque van arrived at the Potts residence in the city’s affluent Northeast Heights on the afternoon of April 10, the Potts family’s caretaker was there to greet him. Rosemary Ortiz, 57, recalled that the driver reassured her that Potts was negative for COVID-19.

Ortiz, however, noticed that Potts had symptoms that corresponded with the disease: a runny nose and a dry cough. The next day, Saturday, those symptoms worsened. By Sunday morning, he complained of shortness of breath and chest pain. He was dizzy, Ortiz recalled.

Ortiz drove him first to an urgent care facility, where he registered a temperature of 100 degrees. At a nurse’s recommendation, Ortiz drove Potts to Presbyterian Hospital in downtown Albuquerque.

“Wouldn’t it be something if I had the COVID and I gave it to you guys, to the family,” she recalled him telling her.

“Don’t say that, we don’t want that!” Ortiz responded.

At Presbyterian, Potts tested positive for COVID-19. He was admitted to the fourth-floor ICU.

Ortiz returned to her home that evening, a two-room casita in Albuquerque’s South Valley that she shares with a roommate.

She worried that Potts was dying.

Something Pretty Basic

The drive to ensure that nursing homes were better prepared for emergencies began amid disaster and disease.

In the aftermath of Hurricane Katrina in 2005, the inspector general for the U.S. Department of Health and Human Services found that nursing homes were unprepared for emergencies despite complying with existing federal standards. The watchdog recommended strengthening the federal requirements to be more specific about the elements that must be in a disaster plan and encourage more coordination with state and local emergency management officials.

In 2009, the Government Accountability Office examined preparedness for a flu pandemic and recommended that the federal government do more to advise health care providers on emergency plans and monitor their performance. The shortcomings were underscored by an outbreak of swine flu that year, which sickened nursing home residents nationwide.

In 2013, the concerns over infectious outbreaks began to take concrete form. The Centers for Medicare and Medicaid Services, or CMS, proposed updating the emergency preparedness requirements for all health care providers that participate in Medicare and Medicaid, including nursing homes.

“This was really something pretty basic,” said Richard Mollot, the executive director of the Long Term Care Community Coalition, which advocates for nursing home residents and their families.

But nursing home operators didn’t see it that way. They objected to the new requirements, arguing they would be costly and burdensome. Over the next three years, they repeatedly voiced their concerns as CMS finalized the new rule.

“We are concerned that CMS has underestimated the amount of time, training and resources necessary to implement many of these requirements,” Catholic Health Initiatives, which operates 40 long-term care, assisted-living and residential-living facilities, said in a formal response to the CMS proposal.

The Continuing Care Leadership Coalition, which represents nonprofit and public post-acute and long-term care providers in the New York metropolitan area, told CMS that the additional personnel and equipment — such as backup generators — needed to comply with the new regulations risked the economic stability of some of its members. “We view the proposed changes as considerable from a financial standpoint, in excess of appropriate minimum standards to participate in the Medicare and Medicaid programs, and we expect they would necessitate significant staffing and operational enhancements,” the organization said.

CMS rejected the appeals, issuing its final rules in September 2016. Nursing homes and other facilities had one year to implement the changes.

A few months later, AHCA sent its letter to Trump. The group followed up by asking Tom Price, Trump’s first HHS secretary, to stop implementing the new requirements and write a new rule. “We are happy to work with your team and CMS staff to provide more specific suggestions,” the industry group said.

The following year, the Trump administration proposed fulfilling some of AHCA’s wishes. The organization had warned that creating and updating the plans risked taking time away from patients.

Advocates for nursing home residents objected that CMS was contradicting its own conclusions. Public health officials said a rollback would undo potentially life-saving improvements.

CMS ultimately decided to remove the mandate for nursing homes to document coordination with local authorities.

But the agency remained insistent on the need to plan for pandemics and other outbreaks of new diseases: “CMS determined it was critical for facilities to include planning for infectious diseases within their emergency preparedness program,” it said in a memorandum issued in February 2019.

A Confused Response

On March 10, just a day before authorities announced New Mexico’s first positive COVID-19 case, Kate Brennan was listening to sports radio on her way to work at AHC of Albuquerque, located in a neighborhood of industrial and business parks. The most senior physical therapist at the facility, she listened with alarm to news about the spread of the coronavirus.

She pulled into the parking lot at the same time as Edwardo Rivera, the top administrator. What were they going to do to protect patients and staff from a COVID-19 outbreak, she asked.

“Katie, it’s nothing more than the flu. It’s not a big deal,” she said he told her.

Rivera said he could not recall making such a statement. But on March 13, CMS issued new COVID-19 measures for nursing homes nationwide. The agency recommended the screening of residents and staff for fever and respiratory symptoms, restricting “all visitors, effective immediately,” except for end-of-life visits, and canceling all group activities and communal dining.

The measures appeared to catch Rivera and his management team by surprise. Their response over the next several weeks was confused and uncertain, employees and patients’ family members said.

By March 15, AHC of Albuquerque announced a halt to family visits. Staff and contractors were checked at the facility door for fever. But group therapy in the gym did not immediately stop, according to former employees who were there at the time. Patients were given the option of eating meals in their own rooms, according to an employee’s cellphone text, but meals in the facility’s dining room continued.

Brennan grew increasingly worried that AHC was not adequately preparing. Despite the CMS regulations, Brennan and several others said they had never received any kind of training on how to handle an epidemic.

“We never talked about COVID-19 training, I know that. Never. Never,” Brennan said.

Nurse Carole J. Welch agreed, as did two other AHC of Albuquerque employees interviewed on the condition that they remain anonymous. Fire drills were the only disaster planning and exercises about which Welch and Brennan were aware, they said.

“There was never anything mentioned about COVID-19,” Welch said. “At all-staff meetings, everybody signs a sign-in sheet. If state inspectors ever ask them for documentation for in-service training or sign-in sheets for COVID-19 trainings, unless they’ve made them up, there aren’t any.”

Nor did the facility participate in any community drills or exercises in recent years other than fire drills, Welch and Brennan agreed.

Rivera said several COVID-19 training sessions had been held since early January. Asked if AHC of Albuquerque had conducted staff training to prepare for the pandemic — explaining how the coronavirus can be transmitted and what precautions are needed to avoid its spread — Rivera said they’d been doing such training “for a while now,” a claim vociferously denied by staff.

In March, the New Mexico Department of Health rushed inspectors to AHC of Albuquerque as part of a statewide effort to review facilities’ emergency response plans in anticipation of the coronavirus pandemic. No deficiencies were noted in either planning or training. Health Department officials did not respond to questions about whether inspectors specifically examined the pandemic response portion of the facility’s emergency plan.

But Rivera acknowledged that AHC had no pandemic response plan, as federal rules require, just a more general disaster response plan. He noted he had not coordinated with local health officials to plan or drill for an epidemic to identify potential problems.

“We did not coordinate much when it comes to an epidemic of this fashion with the [state] Department of Health,” Rivera said. “They did review all of our policy procedures and emergency preparedness plan and everything was checked off and OK’d. But there was never any official training with the Department of Health.”

When asked directly whether AHC of Albuquerque had a generic emergency plan rather than one specific to the needs of a pandemic (such as infection control and PPE supplies), Rivera said: “Correct.”

To Brennan, Rivera’s attitude was too lax for the situation facing the facility’s patients and residents. She believed the lack of guidance was putting her and her patients at risk.

Brennan said she would not work with patients without appropriate PPE and announced she was taking personal leave on March 16. She was fired. Welch asked to be changed from full time to an on-call nurse on April 5 because of similar concerns as Brennan’s. She later learned she, too, had been fired.

“I think in 2 weeks we will see a lot occur … and perhaps our standards will rise … or won’t need to,” Brennan texted to a supervisor. “But in the meantime, I felt we should do more, be more.”

Rivera declined to comment on personnel matters.

“The Cost Is Human Lives”

AHC of Albuquerque’s failure to create a pandemic plan is not unique among nursing homes. A 2018 report by Democratic staff of the U.S. Senate Finance Committee concluded that nursing homes are still unprepared even for more common emergencies like hurricanes.

While some homes have devoted a lot of energy to protecting their residents from disasters, many facilities are doing the bare minimum, according to David Grabowski, a professor of health care policy at Harvard Medical School.

“I don’t think it’s ever been a major area of focus,” Grabowski said, “somewhat because CMS hasn’t forced this and really held their feet to the fire.”

The inspectors who verify whether a nursing home meets emergency preparedness standards are supposed to read the plan to make sure it’s updated and “encompasses potential hazards.” They should also confirm that the nursing home has been training its employees on the emergency plan and ensure that the facility has made preparations for communicating and delegating authority in a crisis.

The most commonly cited problem for nursing homes’ emergency preparedness is failing to rehearse their plans in a community drill, usually organized by local emergency management or a hospital-led health care coalition.

Since inspectors are tasked with identifying immediate hazards, they may be less focused on scrutinizing emergency plans, said Eric Carlson, directing attorney of Justice in Aging, which advocates for impoverished seniors.

In 2019 and 2020, the HHS inspector general found that inspectors in at least five states — California, New York, Florida, Texas and Missouri — were not thoroughly policing the new emergency preparedness rule. CMS has said it will expand its oversight of states’ enforcement.

Another indication of underenforcement is how much violations vary across the country. Advocates and experts say the variation more likely reflects different states’ inspection priorities rather than how much facilities are actually doing.

California has one of the highest citation rates, with inspectors finding more than three emergency-preparedness violations per facility since November 2017, according to the analysis. At least 56 facilities have been cited for failing to plan for potential pandemics.

New Mexico cited nursing homes for emergency-preparedness deficiencies at about the same rate, but it’s not possible to say how many of those deficiencies related specifically to failing to plan for confronting a new infectious disease. Today, nursing homes account for 31% of all COVID-19 deaths in New Mexico.

The citation rate in New York, where more than 5,800 nursing home residents died with confirmed or presumed infections, was much lower, roughly one deficiency per nursing home.

North Carolina registered few deficiencies. Although the state has more than 400 nursing homes, its inspectors issued just 44 emergency-preparedness citations to 40 facilities, none related to a nursing home’s failure to prepare for an epidemic.

Despite this apparently clean record, North Carolina’s nursing homes have been ravaged by COVID-19. Nursing home residents make up more than half of the state’s deaths. About 20% of facilities have had outbreaks, and some have been unable to stop the virus’s spread before virtually every resident was infected.

At Louisburg Healthcare and Rehabilitation, all but five of the facility’s 61 residents caught the virus and 19 died. Despite the federal directive to coordinate with local emergency managers, the nursing home didn’t submit its plan for review.

Jeff Bright, the emergency manager of Franklin County, where the nursing home is located, said the first time he talked to the facility’s administrator was after the outbreak began. “The initial conversation was, ‘Oh good gracious, we’re overwhelmed,’” he said.

In a statement, the nursing home’s management company, Liberty Healthcare, acknowledged that local emergency officials had not reviewed the facility’s emergency plan. But the company said its plan contained a section on pandemic influenza response that proved helpful. State inspectors have reviewed the nursing home’s emergency plan three times since the new rule took effect, the company noted, and each time the facility was found in compliance.

Regulators should do more to make sure that nursing homes and local emergency officials work together, advocates said.

“Facilities should have been better prepared for this,” Melanie McNeil, Georgia’s long-term care ombudsman, said. “The cost is human lives. That’s the cost of not being prepared. We know that people in long-term care are vulnerable.”

The Outbreak Begins

Brennan’s concerns proved prescient on April 3 — the 13th day at AHC of Albuquerque for an elderly Navajo patient in Room 222.

That day, the man had coughing fits in the dining room and therapy gym, according to current and former employees. The next day, on Saturday, he was still coughing and had a fever, so staff quarantined him in his room and administered a nasal swab to test for COVID-19.

Word of his positive test result came the following day, April 5 — Palm Sunday. He was the first person known to have become infected at the facility.

That morning, the facility’s nursing director told staff to assign only one certified nursing assistant, or CNA, to enter the patient’s room, Welch said. But the CNA working in Room 222 was not told to avoid contact with other patients to avoid the risk of spreading the coronavirus, according to Welch. Several people who the CNA attended were later diagnosed with COVID-19.

Rivera said the CNA took necessary precautions, including the use of personal protective equipment. But employees present at the facility on April 5 said the CNA was wearing a surgical mask, not one of the more protective N95 masks.

Rivera acknowledged that staff likely played a role in spreading the virus by mid-April.

“I would say it was indirect” spread between residents by staff, Rivera said. “At that time, we had all of our patients, remember, in isolation at that time, in their rooms.”

Between April 5 and May 8, 42 people — 18 patients and 24 staff — at AHC of Albuquerque would test positive for the disease, according to the state Health Department. Patients were sent home or to other nearby facilities like The Watermark assisted living center and the Canyon Transitional Rehabilitation Center, but only after testing negative twice, Rivera said.

Five residents died, including two men and two women in their 70s and 80s, and Roslyn K. Pulitzer, 90, a distant relative of the newspaper family who created the Pulitzer Prize, the nation’s highest journalistic honor.

Pulitzer, a psychotherapist and fine arts photographer, drew her final breath holding the ungloved hand of Kay Lockridge, her partner of 36 years, at 8:45 a.m. on Thursday, April 30, at the University of New Mexico Hospital’s intensive care unit.

“If we had known they had a case, Roz wouldn’t have gone there,” said Lockridge, a journalist. “I wish we’d known.”

Outbreaks, Staff Cuts and a Disengaged Doctor

AHC of Albuquerque had a history of problems with containing infectious outbreaks, according to employees and a review of state Health Department inspection reports dated 2009 to 2020.

There have been recurring infections involving Clostridium difficile, commonly called C. diff, according to current and former AHC of Albuquerque employees and state inspection reports. C. diff is a drug-resistant bacterium that causes diarrhea and potentially lethal gut inflammation. Rivera said the facility has had no C. diff cases in 2020. He did not return calls regarding previous outbreaks.

Repeated problems with C. diff are a red flag for infection control problems, said Dusti Harvey, an Albuquerque attorney who previously worked for Sun Healthcare Group, a long-term nursing and post-hospitalization rehabilitation company.

Federal regulations for nursing homes, including those for infection control, have been in place since 1989, Harvey noted.

“This is something that nursing homes should have been doing for the last 30 years,” Harvey said. “Nursing homes should have been set up for COVID-19 way before it happened.”

AHC of Albuquerque was also short-staffed, according to employees. Changes in billing for physical therapy had led to layoffs in September 2019. The facility had also begun to accept older, more fragile patients.

The situation was a “perfect storm for things to go awry with the introduction of COVID-19 into the facility,” Brennan said. “Less staff, less cohesion, less communication, less direction. They brought in more patients that were inappropriate for effective group therapy due to their numerous medical issues.”

Rivera insisted the changes to Medicare payments did not affect patient demographics and that staffing was not a problem.

A final concern for some employees was Dr. Ralph S. Hansen, the facility’s medical director and one of its two designated infection control specialists. Neither Hansen nor the other designated specialist, a nurse, have a current credential in infectious disease management, according to records from the American Board of Medical Specialties and the New Mexico Board of Nursing.

“Dr. Hansen has an infectious disease background,” Rivera said. But Hansen had not conducted any staff training, he acknowledged.

Current and former workers described Hansen as “disengaged” and “disconnected.” Patients’ missed doses of antibiotics and delayed lab results went unpursued.

Hansen was fired by a medical group in California and subsequently surrendered his California medical license after he allegedly stole other physicians’ prescription pads and self-prescribed Ritalin under his own and fictitious names 326 times between 2004 and 2007, California Medical Board records show. He was charged in 2007 with 15 felony counts of burglary, forgery and obtaining controlled substances by fraud, the records show. In a November 2007 plea bargain, he admitted only to obtaining a controlled substance by fraud.

But the following year, he moved to New Mexico, where he was issued a conditional medical license in March 2009 requiring monitored drug-abuse treatment and quarterly self-reports on his compliance with treatment, board records show. He went to work for the state prison in Los Lunas and the state Health Department. In 2014, the New Mexico Medical Board granted Hansen an unrestricted medical license, records show. He stopped working for the state in October 2015.

Hansen did not return repeated calls and messages.

By May 7, the COVID-19 outbreak at AHC of Albuquerque had peaked and largely resolved, Rivera said. As of Monday, May 11, the facility had only five patients who tested positive.

Rivera did not return recent phone calls seeking updated figures.

Uncounted Victims

At least two other people might be uncounted victims of the outbreak at AHC of Albuquerque.

After Rosemary Ortiz dropped off Robert Potts at the hospital, she drove back to her own home, the two-room casita where she has lived since childhood.

The following week, Ortiz developed a cough and shortness of breath. She soon became dizzy and feverish, with terrible headaches. Despite the small size of her home, she had trouble walking to the front door.

Ortiz tested positive for the coronavirus.

“I was so sick I thought I was not going to see my kids or my mother ever again,” she said. “I thought I was going to die.”

At home, Ortiz had kept her distance from her roommate, fearful of infecting her. But then she heard the woman coughing.

The roommate, too, tested positive for the coronavirus.

Reached by phone, Ortiz stopped to catch her breath and announced that she had been weeding her yard, back on her feet. As of Tuesday, May 26, she had still tested positive for the coronavirus, even though she felt better.

Inside, Ortiz’s roommate was still sick and coughing.

“But I think she’s doing better,” Ortiz said.

Ortiz had learned that Potts had been transferred to the Canyon Transitional facility for hospice care after several weeks at Presbyterian hospital. Ortiz said Potts’ health has improved and he may be released to go home in a few weeks.

Ortiz paused.

“I miss him. I miss Mr. Potts very much,” she said.

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