The commission will primarily focus on nursing home residents' safety, strengthening regulations to stem the spread of COVID-19 and enhancing federal and state enforcement strategies to improve compliance with infection-control policies, the agency announced late Thursday. It also aims to better coordinate efforts between federal, state and local authorities as well as identify best practices that may be incorporated into a larger regulatory framework, CMS said
The commission, which will be made up of nursing home operators, public officials, academics, infection-control specialists, medical ethicists and resident advocates, builds on CMS Administrator Seema Verma's five-part plan announced last year to ensure safety and quality at nursing homes. Ideally, the commission can come up with recommendations to assist long-term care providers and not just penalize them, but much of Verma's five-part plan has been punitive in nature, said Brian French, a partner at Nixon Peabody.
"My concern is it will end up resulting in more finger pointing and less accountability on the administration itself," said French, adding that the plan minimally addressed what could be done to improve long-term care providers and address systemic issues. "Given that the hallmark of this administration is to disavow findings that its agencies contributed to various problems particularly through delayed action, I am skeptical that a commission developed by this administration will generate findings that take an objective look at where the administration itself fell short."
Staffing will likely be a key focus of the commission, said Matthew Curley, a member of the law firm Bass, Berry & Sims.
"It would not be surprising to see CMS work much more closely with federal and state enforcement agencies in pursuing administrative, civil and criminal actions against operators in instances where there has been significant non-compliance with quality of care and safety standards," he said.
Traditionally, that type of enforcement has been within the sphere of state agencies, Curley added.
Nursing home association reactions were mixed. The American Health Care Association, which represents most U.S. nursing homes, described it as an "important step forward to ensure long-term care facilities receive the vital support needed during this unprecedented public health crisis." Meanwhile, LeadingAge, which broadly represents not-for-profit senior services, criticized the administration for not addressing testing in its plan, saying it "fell far short of what's needed to protect the most vulnerable Americans."
The administration also announced Thursday that it will send two shipments of personal protective gear to every nursing home over the next two months, each of which contains a one-week supply. Still, experts blame the administration for not acting quick enough, which contributed to thousands of deaths at nursing homes across the country.
Fewer than 10% of nearly 9,000 U.S. nursing homes surveyed said they have the ability to take in new COVID-19 patients, according to a CarePort Health poll conducted from early to mid-April. Prior to the pandemic, SNFs had been paring down their workforces due to a new payment model, exacerbating the crisis.
Homing in on the hard-hit state of New York, 93% of its nursing homes have COVID-19 positive patients. COVID-19 patients make up more than 10% of the residents at nearly half of the state's nursing homes.
There has been a 41% year-over-year increase in COVID-19-related symptoms reported in New York nursing homes, pointing to a potential surge, or surge that has occurred but not yet confirmed due to lack of testing, CarePort researchers found. New York City SNFs alone are short an estimated 1,000 beds.
"The question we must answer is, what happens to these patients who need further rehabilitative care, but cannot move to an appropriate nursing home setting? Patients will either remain in the hospital, creating bed shortages for other, more critical patients, or are released home where they lack proper care," CarePort CEO Dr. Lissy Hu said in prepared remarks.