COVID infections are again spiking at nursing homes around the country.

This article was published on Monday, January 31, 2022 in Kaiser Health News.

By Linda Marsa  

Dina Halperin had been cooped up alone for three weeks in her nursing home room after her two unvaccinated roommates were moved out at the onset of the omicron surge. "I'm frustrated," she said, "and so many of the nursing staff are burned out or just plain tired."

The situation wasn't terrifying, as it was in September 2020, when disease swept through the Victorian Post Acute facility in San Francisco and Halperin, a 63-year-old former English as a Second Language teacher, became severely ill with COVID. She spent 10 days in the hospital and required supplemental oxygen. Since the pandemic began, 14 residents of the nursing home have died of COVID, according to state figures.

Over time, Victorian Post Acute has gotten better at dealing with the virus, especially its milder omicron form, which accounted for 31 cases as of Jan. 27 but not a single illness serious enough to cause hospitalization, said Dan Kramer, a spokesperson for Victorian Post Acute. But the ongoing safety protocols at this and other nursing homes — including visitor restrictions and frequent testing of staff and residents — can be soul-killing. For the 1.4 million residents of the nation's roughly 15,000 nursing homes, the rules have led to renewed isolation and separation.

"I'm feeling very restless," Halperin said. She has Cushing's syndrome, an autoimmune disease that caused tumors and a spinal fracture that left her mostly wheelchair-bound and unable to live independently. Although she has residual COVID symptoms, including headaches and balance problems, Halperin, who has lived in the nursing home for nine years, is usually quite sociable. She volunteers in the dining room, helps other residents with their activities, and shops and runs errands during her frequent forays outside the building.

But COVID infections are again spiking at nursing homes around the country. In California, 792 new nursing home cases were reported on Jan. 19, compared with fewer than 11 cases on Dec. 19, 2021. However, the death rates are not nearly as bad as they were during pre-vaccine COVID surges. From Dec. 23, 2021, to Jan. 23, 2022, 217 nursing home residents died of COVID in California. By contrast, in just the week from Christmas 2020 to New Year's Day 2021, 555 people died at nursing homes in the state.

Those numbers, and others cited in this article, don't filter out patients who entered hospitals for treatment of other conditions but tested positive for COVID upon admission — a common occurrence during the omicron wave.

To keep nursing home residents out of overwhelmed hospitals, California public health officials have mandated masking and imposed strict vaccination and testing requirements for visitors and staffers at the homes, said Dr. Zachary Rubin, a medical epidemiologist with the Los Angeles County Department of Public Health. "Our approach is to prevent cases from coming into the facility, stop transmission once it gets into the facility, and to prevent serious outcomes," he said.

Rubin acknowledged that some of these policies may seem like they're doing more harm than good — but only temporarily, he hopes.

The omicron surge has created staffing shortages as nurses and aides call in sick, and the strict testing requirements have the effect of limiting visits by friends and relatives who provide crucial care and contact for some residents, bathing and grooming them, overseeing their diets and medications, and making sure they're not being neglected.

Nationally, a federal mandate requires all workers in federally funded facilities to be fully vaccinated by Feb. 28. The deadline was extended to March 15 for 24 states that challenged the requirement in court. Last month, California issued a similar order, which also requires nursing home staffers to receive booster shots by Feb. 1.

However, while vaccination rates for staff members and residents are high in California (96% for staffers and 89% for residents), only 52% of nursing home workers and 68% of their residents in California have received boosters, according to Jan. 23 figures from the Centers for Disease Control and Prevention. At Victorian Post Acute, 95% of staff and 92% of residents had been vaccinated with boosters as of Jan. 27, Kramer said.

Across the state, many unvaccinated staff members claim religious exemptions. Others say they can't get vaccinated at their workplaces and don't have time to get shots on their own, said Deborah Pacyna, a spokesperson for the California Association of Health Facilities, which represents the nursing home industry in Sacramento.

"We're going to have to deal with that as the deadline approaches. If they're not boosted, does that mean they can't work?" she asked. "That would be an extraordinary development."

The state hasn't indicated how it will enforce mandates, especially for boosters, said Tony Chicotel, a staff attorney for California Advocates for Nursing Home Reform.

Most nursing home visitors, as of Jan. 7, must be fully vaccinated — including boosters, if eligible — under California Department of Public Health requirements. Guests also must present a negative COVID test taken within one or two days, depending on the type of test. The federal government is sending four rapid tests to families that request them, and the state of California has distributed 300,000 tests to nursing homes.

That's "better than nothing," said Pacyna, but it may not be enough for families that visit several times a week. Some experts think any policy that tends to restrict visitors sets the wrong priority.

"Limiting visitation is bad psychologically," said Charlene Harrington, a professor emeritus in social and behavioral sciences at the University of California-San Francisco who has done extensive research on nursing homes. Numerous studies have shown that social isolation and loneliness can lead to depression, worsening dementia and cognitive decline, anxiety, a loss of the will to live — and increased risk of mortality from other causes.

Besides, Harrington said, most nursing home outbreaks are caused by infected staffers, who often work multiple jobs because of the low pay.

Maitely Weismann visits her 79-year-old mother, who has dementia and uses a wheelchair, at a Los Angeles residential facility several times a week. Her mother deteriorated considerably during the initial lockdown, and Weismann is doing her best to slow her mother's decline, she said.

"It's much harder to do this during the pandemic because there are so many barriers to entry," said Weismann, co-founder of the advocacy group Essential Caregivers Coalition. "Family caregivers can't actually tell if a loved one is doing OK through a screen, or a window, or a phone call."

Responding to the critical healthcare staff shortages, the CDC issued emergency guidelines in December — California followed suit in January — that allow workers who have been exposed to or test positive for COVID to return to work if they are asymptomatic.

It's a short-term, last-resort measure, Rubin said. "It's just not possible to adequately take care of people and do the daily activities of living if you don't have a nurse or caregivers. You just can't operate the place."

On one recent day alone — Jan. 24 — more than 10,300 workers were out sick — which is roughly a tenth of the combined staff in California nursing homes. To deal with the crunch, said Pacyna, "we're asking people to work extra hours, knowing that the peak is near and this isn't going to last forever."

In the meantime, families continue to worry about their loved ones. "When residents are isolated, they become completely dependent on the caregivers in the facility," Weismann said. "But when staff stops coming to work, the system falls apart."

This story was produced by KHN, which publishes California Healthline, an editorially independent service of the California Healthcare Foundation.

Some states are holding on to expired tests for use as a last resort.

This article was published on Monday, January 31, 2022, in Kaiser Health News.

By Katheryn Houghton 

In a few short months, states have gone from donating surplus rapid COVID-19 tests to states with shortages to hoarding them as demand driven by the spike in cases strains supplies.

Last January, North Dakota had amassed 2.7 million Abbott Laboratories BinaxNOW rapid COVID tests from the federal government — roughly 3½ tests for each person in the state of 775,000 people.

The state had so many COVID tests that it donated a total of 1 million of them to Montana and Pennsylvania as part of a sharing program among states that formed when the delta variant was the dominant strain and COVID outbreaks rippled across the nation in waves. But now that omicron has turned the entire nation into a coronavirus hot spot and driven up demand for tests everywhere, that system has been upended.

Some states are holding on to expired tests for use as a last resort. In early January, North Dakota was one of them, with a stockpile of 600,000 expired rapid tests.

"I want to make sure that our state is covered," said Nicole Brunelle, North Dakota's chief nursing officer. "The entire nation is fighting for these tests."

Jasmine Reed, a spokesperson for the Centers for Disease Control and Prevention, said the state exchange program has stopped operating, and while federal health officials are working to get it going again, the timing is unclear. "Once COVID-19 and its variants began to ramp up and more testing was needed, states no longer had a surplus to provide extra tests," Reed said.

By early January, some states, including Montana and Indiana, had depleted their inventory of rapid COVID tests for distribution. Along with North Dakota, Florida and Maryland have held on to expired tests in hopes the federal government would extend the tests' shelf life.

The inevitable result: States have gone from cooperation to competition.

"Emergency management and federal assistance across the country is built on the idea that we won't have a need everywhere at once," said Ken Sturrock, a Colorado-based regional emergency coordinator for the U.S. Department of Health and Human Services.

The state test exchange program was created amid concerns that tests would expire unused. Federal health agencies built an online platform that states could use to relay what they had or needed.

Some states have gone outside the program to exchange tests. For example, Mississippi donated more than 79,000 tests to Pennsylvania in November, said Jim Craig, senior deputy for the Mississippi State Department of Health.

For the states that participated, the exchange program was effective in identifying and shipping tests to places in need across the country through much of 2021. Colorado, for instance, received tests from five states from May through August of last year, bringing in about 340,000 kits that were close to expiring.

Some donations went farther. When nationwide demand for testing diminished early last year, the Arkansas Department of Health couldn't find a state to take 300,000 tests close to expiring. Danyelle McNeill, a department spokesperson, said Arkansas donated the tests to India, where the delta variant was first identified, in late winter 2021.

Brunelle, North Dakota's chief nursing officer, said the state expanded access to its supply of tests to schools, businesses, health providers, and others, offering free kits and training to those who would use them. Even then, Brunelle said, the state had more tests than it could distribute before they expired.

In January 2021, North Dakota sent 250,000 tests to Montana. Demand in Montana was low at the time, but Jon Ebelt, a spokesperson for the state Department of Public Health and Human Services, said the state "did not want to turn down free tests" after supplies had been tight earlier in the pandemic.

That summer, Montana sent 51,000 of those tests to Colorado.

But by January 2022, Montana's supplies had been depleted. Health officials notified school districts that the pool of BinaxNOW test kits had run dry. The state worked through suppliers to order 650,000 tests and planned to start distributing them on Jan. 30. Montana Gov. Greg Gianforte, a Republican, blamed the Biden administration, saying it had repeatedly failed to increase testing supplies.

The Biden administration has created a website where households can sign up to receive four free tests, and officials have said tests are expected to ship within seven to 12 days of orders being placed. But that initial rollout raised access issues for some of the most vulnerable.

In fall 2021, North Dakota sent 750,000 rapid tests to the Children's Hospital of Philadelphia. Dr. David Rubin, the hospital's director of population health innovation, said the hospital distributed those supplies to a school-based testing program in southeastern Pennsylvania.

Rubin said that without the federal platform, the hospital is trying to get more tests for the program through federal agencies but that the line for them is long.

"We're starting to imagine a world with less testing right now because it's the reality," Rubin said.

In some cases, the FDA has extended the shelf life for certain tests, most recently this month when it put a 15-month life span on Abbott's at-home tests.

Amid the shortage, states have also sought permission to use outdated stock still on their shelves. Andy Owen, a spokesperson for the Maryland Department of Health, said that on Jan. 18, the FDA gave the state an additional three months to use 97,000 expired rapid tests that must be administered by a provider. That's after Florida got another three-month extension to use roughly 1 million test kits that had expired at the end of December.

The Centers for Medicare & Medicaid Services released guidelines in 2020 that allowed states to use expired tests "until non-expired supplies become available."

New Mexico Department of Health spokesperson Katy Diffendorfer said the state told a school that it could use older tests after the school's supply dwindled to outdated kits. "They desperately needed to be able to test," Diffendorfer said, adding that the state would send non-expired tests as soon as possible.

In North Dakota, which once had an abundance of tests, Brunelle said the state was starting to see access issues this winter, especially in rural places. The state has been careful about sending tests out, even within the state. North Dakota stalled its program to distribute tests to businesses, which Brunelle hopes is temporary.

"Right now, we need to keep our priority with our healthcare system, our first responders, our vulnerable populations," she said.

Katheryn Houghton: khoughton@kff.org, @K_Hought

A federal appeals court's decision applies only to people with traditional Medicare whose status was changed from inpatient to observation.

This article was published on Friday, January 28, 2022 in Kaiser Health News.

By Susan Jaffe

A three-judge federal appeals court panel in Connecticut has likely ended an 11-year fight against a frustrating and confusing rule that left hundreds of thousands of Medicare beneficiaries without coverage for nursing home care, and no way to challenge a denial.

The Jan. 25 ruling, which came in response to a 2011 class-action lawsuit eventually joined by 14 beneficiaries against the Department of Health and Human Services, will guarantee patients the right to appeal to Medicare for nursing home coverage if they were admitted to a hospital as an inpatient but were switched to observation care, an outpatient service.

The court's decision applies only to people with traditional Medicare whose status was changed from inpatient to observation. A hospital services review team can make this change during or after a patient's stay.

Observation care is a classification designed for patients who are not well enough to go home but still need the kind of care they can get only in a hospital. But it can have serious repercussions.

Without a three-day inpatient stay, beneficiaries are ineligible for Medicare's nursing home benefit. So if they need follow-up care in a nursing home after leaving the hospital, they can face charges of about $290 a day, the average national cost of nursing home care, according to a 2021 survey. Also, since observation care is categorized as outpatient treatment — even if the patient is on a hospital ward — they can get stuck with significant copays under Medicare rules.

"You can appeal almost every issue affecting your Medicare coverage except this one, and that is unfair," said Alice Bers, litigation director at the Center for Medicare Advocacy, which represented the patients in their lawsuit along with Justice in Aging, another advocacy group, and the California law firm of Wilson Sonsini Goodrich and Rosati.

Until Congress passed a law that took effect in 2017, hospitals weren't required to tell patients whether they were receiving observation care and had not been admitted. Under that law, hospitals must provide written notice, but it does not trigger any right to appeal.

The Department of Justice, representing HHS and the Medicare program, tried numerous times to get the case dismissed, arguing that the decision to admit patients or classify them as "observation patients" was based on a doctor's or hospital's medical expertise. Patients had nothing to appeal because the government can't change a decision it didn't make, so no Medicare rule had been violated.

Doctors rejected that notion and have long complained that the Medicare rule undermined their clinical judgment and produced "absurd results" that can hurt patients. The American Medical Association and state medical societies filed legal papers in support of the patients challenging the rule, as did several other organizations, including AARP, the National Disability Rights Network, and the American Healthcare Association, which represents nursing homes across the country.

But U.S. District Judge Michael Shea ruled against HHS in 2020, and estimated that hundreds of thousands of Medicare patients would be able to seek refunds for nursing home care and other costs that admitted patients don't pay. The trial took place in 2019.

The government continued to back the rule, however, and asked a federal appeals court panel to reverse Shea's decision — despite comments from then-chief of Medicare Seema Verma, who questioned these policies in a 2019 tweet, saying that "government doesn't always make sense."

On Jan. 25, the appeals court judges upheld Shea's decision, agreeing that when hospitals switched a patient's status they were following Medicare's 2013 "two-midnight rule." It requires hospitals to admit patients who are expected to stay through two midnights. The ruling applies to people in traditional Medicare.

"The decision to reclassify a hospital patient from an inpatient to one receiving observation services may have significant and detrimental impacts on plaintiffs' financial, psychological, and physical well-being," the judges wrote. "That there is currently no recourse available to challenge that decision also weighs heavily in favor of a finding that plaintiffs have not been afforded the process required by the Constitution."

A DOJ spokesperson declined to comment on whether government lawyers would appeal the new ruling.

Three groups of Medicare patients who were switched from inpatient to observation status after Jan.1, 2009, will be able to file appeals for nursing home coverage and reimbursement for out-of-pocket costs. People currently in the hospital will be able to request an expedited appeal, and others who have recently incurred costs can file a standard appeal by following instructions in their Medicare Summary Notice. A plan for appealing older claims has not yet been arranged, said Bers. The latest details are available on the Center for Medicare Advocacy's website. (The three-day inpatient hospital stay requirement is temporarily suspended due to the COVID-19 pandemic.)

Observation status also causes trouble for people like Andrew Roney, 70, of Teaneck, New Jersey, who was caught unawares when he was switched from inpatient to observation status. He had Medicare's Part A hospitalization coverage, which is free for most people 65 and older. But he didn't sign up for Part B, which carries a monthly premium and covers outpatient services, including observation care, doctor visits, lab tests, and X-rays. He spent three days in a nearby hospital for an intestinal infection in 2016.

Roney, a freelance editor and substitute teacher, didn't think he needed Part B and assumed Part A would cover his hospital stay. Instead, he was surprised to get a $5,000 bill because he was classified as an observation patient and was not admitted. Despite his best efforts, there was nothing he could do about it except to pay up.

"It came as a shock to the system," said Roney, who testified in the 2019 trial. "I don't want anybody else to go through that." Although he had given up hope of getting his money back, he intends to file an appeal now that he can. "It's a nice chunk of change."

Susan Jaffe: Jaffe.KHN@gmail.com, @SusanJaffe

Mass General Brigham's plans to build three ambulatory care centers in three suburbs west of Boston is stirring controversy.

This article was published on Thursday, January 27, 2022 in Kaiser Health News.

By Harris Meyer

A boisterous political battle over a proposed expansion by the largest and most expensive hospital system in Massachusetts is spotlighting questions about whether similar expansions by big health systems around the country drive up healthcare costs.

Mass General Brigham, which owns 11 hospitals in the state, has proposed a $2.3 billion expansion including a new 482-bed tower at its flagship Massachusetts General Hospital in Boston and a 78-bed addition to Brigham and Women's Faulkner Hospital. The most controversial element, however, is a plan to build three comprehensive ambulatory care centers, offering physician services, surgery, and diagnostic imaging, in three suburbs west of Boston.

On Jan. 25, the state's 11-member Health Policy Commission unanimously concluded that these expansions would drive up spending for commercially insured residents by as much as $90 million a year and boost health insurance premiums.

The commission also ordered Mass General Brigham to develop an 18-month "performance improvement plan" to slow its cost growth. The action, believed to be the first time in the country a hospital has been ordered to develop a plan to control costs, reflects concern about giant hospitals' role in rising healthcare costs.

Other states, including California, Delaware, Oregon, Rhode Island, and Washington, have created or are considering commissions on healthcare costs with the authority to analyze the market impact of mergers and expansions. That's happening because the traditional "determination of need" process for approving health facility expansions, which nearly three dozen states still have in place, has not been effective in the current era of health system giants, said Maureen Hensley-Quinn, a senior program director at the National Academy for State Health Policy.

The Mass General Brigham health system, which generates $15.7 billion in annual operating revenue, announced that the massive expansion would better serve its existing patients, including 227,000 who live outside Boston. Its leaders said the new facilities would not raise health spending in the state, where policymakers are alarmed that cost growth in 2019 hit 4.3%, exceeding the state's target of 3.1%.

The hospitals' cost-analysis report, submitted to the state last month, concluded that the system's existing patients would pay lower prices at the new suburban sites than at its downtown locations. John Fernandez, president of Mass General Brigham Integrated Care, projected that prices at the new centers would be 25% less, and he said patients will not have to pay extra hospital "facility fees" at the new outpatient sites.

"We're all going to have a tsunami of patients over the next 20 years given the aging population, and everyone has to step up to meet that demand," he said in explaining the expansion.

But a well-funded coalition of competing hospitals, labor unions, and chambers of commerce argues that Mass General Brigham's invasion of the Boston suburbs would spike total spending by drawing in patients from lower-priced physicians and hospitals. They cite the health system's own planning projection, unearthed by the attorney general's office in a November report, that the expansion would boost annual profits by $385 million.

"How could you be fooled?" said Dr. Eric Dickson, CEO of UMass Memorial Healthcare, a safety-net health system serving the towns west of Boston that is part of the coalition of expansion opponents. "If you let the state's most expensive system grow wildly, it will drive up the cost of care."

The controversy signals a shift in the concerns about the cause of rapidly escalating healthcare costs. Up to now, state and federal policymakers examining how hospital system growth affects costs have largely focused on hospital mergers and purchases of physician practices. Studies have found that these deals significantly boost prices to consumers, employers, and insurers. State and federal regulators have stepped up antitrust scrutiny of mergers and acquisitions.

Deep-pocketed hospital systems increasingly are turning to solo expansion to gain a bigger share of the market. These expansions fall outside the legal authority of antitrust enforcers.

Health systems are building satellite ambulatory care centers to attract more well-insured patients and steer them to their own hospitals and other facilities, said Glenn Melnick, a health economist at the University of Southern California.

"The outcome is the same as a merger — capturing patients and keeping them," he said. "That's not necessarily good for consumers in terms of access to care or cost efficiency."

Critics of Mass General Brigham's plans also warn that the expansion would financially destabilize providers that heavily serve lower-income and minority residents because some of their more affluent patients would move to the new facilities. Those patients' commercial insurance plans pay nearly three times what the state's Medicaid program pays.

"It's a very, very good business move for MGB," said Dickson, whose system serves a large percentage of Medicaid patients. "But they know quite well this will impact our ability to care for vulnerable populations."

The Health Policy Commission agreed with those opposing the expansion and said it would advise the state Public Health Council — which will decide on the three expansion applications by April — that the proposals are not consistent with the state's goals for cost containment.

"Our strong assessment is this would substantially increase spending," said Stuart Altman, a health policy professor at Brandeis University who chairs the commission. In addition, "there is a clear indication it would reduce revenues to those institutions we count on to provide services to lower-income and historically marginalized communities."

In a written statement, Mass General Brigham ripped the commission's findings as flawed. It also disagreed with the commission's decision to require a cost-improvement plan but said it would work with the agency to address the challenge.

Under Massachusetts' determination of need process, Mass General Brigham must show the Public Health Council that its expansion proposals would contribute to the state's goals for cost containment, improved public health outcomes, and delivery system transformation.

The council has never blocked a project on cost grounds in its nearly 50-year history, said Dr. Paul Hattis, a former member of the Health Policy Commission. He argues that Massachusetts needs more explicit statutory power to decide whether health system expansions are good for the public, because he doesn't think the council understands its own regulation.

A bill passed by the Massachusetts House of Representatives last fall would give the commission, which was created in 2012, greater authority to investigate the cost and market impact of such expansions. Its legislative fate is uncertain.

Upping the stakes in the Massachusetts expansion fight: Massachusetts General Hospital charges by far the highest prices in the state, and Brigham and Women's Hospital isn't far behind.

Patients with a Mass General Brigham primary care physician had the highest total per-member spending in 2019, nearly $700 per month, according to the Health Policy Commission. That was 45% higher than spending for patients served by doctors at Reliant, which is owned by UnitedHealth Group's Optum unit. Average payments for major outpatient surgery at Massachusetts General and Brigham and Women's were nearly twice as high as at the state's lowest-paid high-volume hospital.