While a pandemic tears through nursing homes, industry lobbyists request immunity from lawsuits. The rest of the world looks on in horror.

Photo by Claudia van Zyl on Unsplash

When a confused and distressed Roger Curry was abandoned outside a hospital in Herefordshire in 2015, he had no recollection of how he got there or where he was from. He spent the next several months in a nursing home, while British police worked with Interpol to identify him. It emerged that Mr. Curry had been a victim of abuse: abandoned by a son who thought his father would receive better care in another country.

And, despite his cruel actions, he wasn’t wrong.

A Guardian report from last year noted how well looked-after Mr. Curry was in the nursing home, where no money changed hands in return for his care. No fees, insurance, or co-pays. No price gouging on his dementia medication. The only source of funding that contributed to Mr. Curry’s good standard of care was the British taxpayer.

How does this sad situation speak to the state of elder care in the US? Why would someone prefer to abandon his father across an ocean rather than just, say, in a far flung corner of his own country?

The overwhelming cost of healthcare across the US is the reason Mr. Curry ended up in the UK — though it could just as easily have been Canada. Or Japan. Or Norway, Sweden, Denmark, New Zealand, Switzerland, Vietnam, China, Singapore… the list of countries, from Albania to Zambia, where you can walk in off the street and receive healthcare at low or no cost is long and varied. The US is conspicuous by its absence.

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In April 2020, a trio of California nursing home residents petitioned the State to enforce federal laws prohibiting ‘resident dumping’ — the practice of releasing less well-off residents to hospitals to make room for higher-paying residents at care facilities.

In an April 6 press release announcing the motion, California Advocates for Nursing Home Reform (CANHR) noted that their organization had been “trying to stop the State’s implicit support of resident dumping for over a decade,” and that the COVID-19 pandemic has exacerbated the problems of dumping and warehousing. CANHR Executive Director Patricia McGinnis described the situation as “the worst of both worlds: in addition to putting our elderly citizens at risk, the State’s failure to enforce the law means far fewer hospital beds are available to treat those suffering from COVID-19.”

CANHR and other elder advocacy groups have been lobbying the State to tackle repeated violations of federal anti-dumping laws for years. In the midst of a pandemic that is disproportionately fatal for elder citizens, the threat posed by COVID-19 is putting skilled nursing facilities under closer scrutiny than ever before. At time of writing, some 7400 California nursing home residents and staff have tested positive.

Within days of the announcement, nursing home lobbyists asked Gov. Newsom to grant them immunity against legal action relating to the industry’s handling of COVID-19 outbreaks. Elder rights advocates are deeply concerned that granting immunity to nursing homes would harm vulnerable residents for whom civil and criminal proceedings are the only bulwark against neglect and abuse. In a press release issued on April 20, CANHR urged the Governor to resist what they described as ‘a blatant play to avoid consequences for the years of decisions and inaction that have enabled the COVID-19 virus to spread virtually unchecked through long term care facilities.’

Nursing homes are high risk environments at the best of times. Violations of life-threatening infection control measures were disconcertingly common in California before the current pandemic. An LA Times investigation into the safety records of 66 skilled nursing facilities known to have at least one COVID-19 infection among staff or residents showed that 59 of them had been reported for infection control problems during the last three years. Violations included mishandling highly contagious patients and substandard cleaning practices for equipment, including ventilators.

All 66 facilities examined by The Times were in LA County — but there is no reason to think the story is much different across the rest of the State. Outbreaks have occurred in facilities in San Jose, Orinda, San Bernardino, and San Francisco. One facility in Yucaipa is known to be the sole source of at least 94 cases.

Most grievously, a Riverside nursing home was evacuated after staff failed to show up for work the day after dozens of residents and workers had tested positive. Out of the 13 workers scheduled for a shift, only one came to work.

When 93% of careworkers simply refuse to come in — even during a pandemic — the problem is systemic. Low wages, scant benefits, inadequate employee protections — these are the hallmarks of a profit-driven nursing home industry far too brittle to weather a health crisis on this scale.

Who can blame careworkers for refusing the mantle of ‘hero’ thrust suddenly upon them and without their consent? Weren’t they already heroes, caring for the sick and dying every day for very little in return? It’s no surprise that healthcare workers’ crushing fear of their own medical bills would prevent them from going into a thankless job, just as much as that fear kept them there in the first place.

This situation is not unique to California, of course. But among developed nations, financially stratified access to healthcare is unique to the United States. As a spokeswoman from the Taiwan government recently put it to NBC News, “Taiwan’s health insurance lets everyone not be afraid to go to the hospital. If you suspect you have coronavirus, you won’t have to worry that you can’t afford the hospital visit to get tested.”

The pandemic hasn’t just caused a health crisis in the US — it’s exposed one that’s been ongoing for decades.

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Uwe Reinhardt correctly characterized the modus operandi of the American healthcare system as ‘unbridled compassion for the wealthy and unbridled cruelty for the poor.’ As the coronavirus epidemic has highlighted all too painfully, the US simply isn’t equipped to handle public health crises on this scale. The invisible hand of free market forces is no match for an invisible enemy that won’t discriminate between rich and poor, old and young.

But things were rotten in the state of elder care long before the novel virus reared its spiky head. Why, many Americans increasingly find themselves asking, does the richest country in the world claim that universal healthcare access is beyond the pale? Does access to Medicare provide the same benefits to older Americans as universal health coverage provides to the senior citizens of other countries?

Let’s turn to the multitude of mixed-economy nations with publicly funded provisions for their 65-and-over populations to see how poorly the US stacks up.

In 2017, the Commonwealth Fund’s International Health Policy survey compared the experiences of older adults in healthcare settings in 11 countries (Australia, Canada, France, Germany, the Netherlands, New Zealand, Norway, Sweden, Switzerland). Across multiple categories — including affordability, ease-of-access, and promptness of care — the US ranked at or near the bottom.

Among the most damning finds was the 23% of US senior citizens who did not go to a doctor when they were sick, get a recommended test or surgery, or fill a prescription — entirely due to prohibitive costs. Fewer than 5% of respondents from other countries reported missing out on care due to cost. People with three or more chronic conditions — the highest risk group — represent the starkest contrast between US seniors and their European counterparts. A third of US respondents in this ‘high need’ group reported struggling with costs, compared to 2% of Swedes.

Medicare is not systemically equivalent to health insurance programs in other nations. According to the survey, almost a quarter of older Americans spent up to $2000 on out of pocket medical expenses like co-pays and prescriptions. The unregulated nature of pricing for medical treatments can lead to staggering differences in cost for the same drug in the US compared to, say, the UK, where prescriptions are capped at around $11. Twenty-five percent of respondents from the US reported struggling — as a direct result of healthcare costs — to afford rent, utility, and grocery bills. The disparity between this country and our European counterparts is, again, painfully transparent. In France, Britain, and the Scandinavian nations, fewer than 5% of over-65s reported a financial knock-on effect between their healthcare and other living costs.

For sections of a populace dealing with multiple medical conditions simultaneously, these extra costs represent a significant, often insurmountable financial barrier that simply doesn’t exist for their global peers. Even for higher income Americans, spending thousands on extra medical costs is burdensome enough to make them think twice about seeking treatment, or to consider sacrificing the treatment of one condition in order to pay for another.

Among these twelve developed countries, the US is the clear outlier in terms of cost-benefit. But it’s not just western-style democracies that outperform this country when it comes to taking care of vulnerable over-65s. Japan is world-renowned for treating its elders with respect, even devoting a national holiday to the concept. Likewise, Vietnam and Korea honor longevity and experience, with ceremonies for citizens reaching the 60-year milestone (the lifecycle of the Chinese calendar). In China itself, elderly parents can (and do) sue their grown children for failing to provide financial — or even emotional — support, and businesses are legally obliged to give workers time off to visit parents. Similar filial piety laws exist in India, Singapore and the Ukraine.

While such extreme measures may seem antithetical to the American way of life, there’s a lot of middle ground between this kind of legally-mandated compassion and the ‘unbridled cruelty’ on display here. Surely we can work towards a happy medium. The aforementioned Reinhardt’s transformation of Taiwan’s health insurance system is one relatively recent test case that suggests we can.

For the moment, we’re stuck with a system that’s far more costly than it needs to be. The context in which many for-profit facilities operate is a complicated web of management companies, holding companies, shareholders, operators, and low-wage workers, woven by faceless corporations who shield their assets from public scrutiny. There is little to no regulation at the local, state, or federal levels. In California, the average cost of residence at an assisted living facility is more than double the average rent. These costs are hugely burdensome to middle aged working people who are paying kids through college on one side, and spending just as much supporting their parents on the other. A married couple in their 40s will likely have four retirement-age parents, any or all whom could need round the clock care in the years to come.

And while the current cost of care is somewhat mitigated by relatively wealthy baby boomers heading into elder care facilities, the problem will be much worse in a generation’s time if nothing is done to change the system. The population will be older, and the money to support them won’t be available to anyone but the rich.

Changing the system is important, doable, and — in California at least, at last — an express public policy aim in the form of Gov. Newsom’s Master Plan for Aging. Changing our way of thinking about the social contract is a loftier ideal, but it can be done. As a society, we already eschew the American ideal of total self-reliance for children without question. We need to accept the reality that we can’t all be independent at all times. For longevity to be a worthwhile aim, it has to come with dignity and intergenerational respect attached.

The dysfunctions of the US healthcare system have been exposed for the world to see. Here, when hospitals are closed it’s because they’re unprofitable. When nursing home residents are evicted, it’s to make way for those with greater resources, not greater need. And when a public health crisis threatens to expose decades of poor infection control practices, the elder care industrial complex tries to absolve itself of responsibility by using that crisis as a shield, in a brass-necked invocation of emergency powers that has appalled advocates of elder care reform. (At time of writing, Gov. Newsom has not publicly responded to the request for immunity).

If there is to be a positive outcome from this crisis, it will be policymakers finally summoning the political will to change a system where high standards of care flow in the direction of need rather than financial clout.

Former Sacramento DDA, now dedicated to representing victims of abuse and neglect in nursing homes.

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