How NJ Can Stop The COVID Outbreaks In Long-Term Care Facilities

NEW JERSEY - On Monday the Garden State imposed a new rapid testing mandate on long-term care facilities designed to help stem the spread of COVID-19 over the next two weeks. But one elder care expert says more needs to be done.

As of Wednesday, there were 342 active outbreaks and 2,967 positive residents and 3,435 positive staff members.

“COVID-19 could have been a wake-up call that it’s time to get serious about holding facilities accountable for resident well-being,” Syracuse University College of Law professor Nina Kohn said. “Instead, the public response has made the problem worse.”

Kohn is a faculty affiliate with the Syracuse University Aging Studies Institute whose research focuses on elder law and the civil rights of older adults and persons with diminished cognitive ability. She is also a Distinguished Scholar in Elder Law at Yale Law School’s Solomon Center for Health Law & Politics.

"The nursing home industry has successfully lobbied for policymakers to treat nursing homes as the victims of COVID-19 and not the vectors of it," Kohn said. "Consistent with these efforts, instead of ramping up enforcement, Centers for Medicaid and Medicare Services initially suspended most enforcement actions"

According to Kohn, Centers for Medicaid and Medicare Services, the industry’s primary regulator, instead imposes no financial consequence for most regulatory violations. When violations are found – even serious ones – facilities are typically simply directed to make corrections. And regulators may never even assess whether corrections are made. The result is that facilities lack sufficient financial incentive to avoid violations in the first place. And this was before the COVID-19 pandemic.

And that hasn't changed.

"Many states granted nursing homes new immunity from civil liability either by executive order or statute," Kohn said. "Some of these provisions are so broad that they could foreclose almost all lawsuits against nursing homes during the COVID-19 disaster."

The Murphy administration took heat earlier in the pandemic for its policies regarding long-term care outbreaks over the course of the spring as many said his administration forced facilities to take COVID-19 patients, which contributed to nearly half of New Jersey's confirmed pandemic deaths.

Murphy has vehemently disagreed with that characterization, noting that his administration was crystal clear and explicit about any reintroduction of COVID positive residents into long-term care facilities came with conditions. They would need to cohort, separate into different floors, or different buildings or different wings. The order included staff.

"Many came to us and said, 'We can't do that, can you help us find a place for these COVID positive patients?' We did exactly that," he said back in August. "So that talking point is myth."

Murphy also said that it may have happened, but it was explicitly against the guidance of his administration.

President and CEO of American Health Care Association and the National Center For Assisted Living Mark Parkinson said that with millions of Americans failing to heed advice from public health experts and traveling during Thanksgiving, the concern is that this situation will only get much worse.

“At this point, long term care facilities desperately need public health officials at every level to take emergency steps to get control of the community spread and ensure our facilities have the resources they need, as well as for the CDC to make our residents and caregivers the top priority in distributing the vaccine in order to save thousands of lives,” Parkinson said.

Enhanced Testing

The post-Thanksgiving plan in New Jersey is to require enhanced testing of staff, residents, and visitors for the next two-week period.

The mandate applies to all long-term care facilities that possess a Clinical Laboratory Improvement Amendment certification that allows a facility to test someone to assess health, diagnose, and determine treatment, a laboratory requirement for point of care testing, and which receive BinaxNow rapid tests from the Department of Health. The tests are BinaxNow tests from Abbott Labs detects the presence of protein antigens from SARS-CoV-2 in individuals suspected of COVID-19.

The Garden State has approximately 366,000 rapid tests and have begun sending them out.

For her part, Kohn says that “this new surge is further evidence of the folly of the Trump administration’s incentive payment program that is distributing over $333 million in taxpayer money to nursing homes that saw reduced COVID-19 rates during August and September – nearly 80 percent of facilities.

"These payments provide facilities with additional funds for doing what they already had a legal obligation and financial incentive to do: protect residents from deadly infection," Kohn said. "What they don’t do is fundamentally change the system that makes these institutions such infection tinderboxes in the first place."

Another key to protecting the vulnerable population in long-term care facilities is ensuring that residents and staff at these facilities are among the first to get an approved vaccine.

"It is up to the governors and state health agencies to implement these recommendations and ensure our long term care residents and staff are prioritized in the actual rollout of the vaccine to provide this protection as soon as possible,” Parkinson said. "“The long term care industry, including nursing homes and assisted living communities, now call on governors from all 50 states to ensure long term care residents and staff are the first group to receive the vaccine within this initial Phase ‘1a’ distribution to save as many lives as possible.”

Vaccine Rollout

Here in the Garden State, where a second wave of infections has seen daily positive cases escalate to the highest levels since March and April, Health Commissioner Judith Persichilli's task force has been preparing for the "equitable" distribution of an approved vaccine for months.

"We will be ready," Gov. Phil Murphy said, noting in October that the planning for a vaccine distribution began back in March.

The plan, as it currently stands, has several strategic aims:

• Vaccinate 70 percent of the adult population within 6 months
• Provide equitable access to a vaccine
• Achieve maximum community protection
• Build public trust

The overall goal in New Jersey is to vaccinate 4.7 million people, with health care workers being first. That would equate to somewhere between 60,000 and 70,000 people a day.

Persichilli said they have 500,000 people listed as high priority healthcare workers and that New Jersey is initially expected to receive 100,000 doses of vaccine. Which, because two doses are required, would mean initially 50,000 people protected.

"The good news is that a vaccine is on the horizon – we anticipate broad distribution by this spring. We have a plan ready should that timeframe hold," Murphy said last month. "Let's get through the remainder of this fall and winter together."

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