Numbers Can Lie: Gaming the Medicare Rating System in Nursing Homes and Long-Term Care Facilities

As of March 2021, over 174,000 people living and working in nursing homes and long-term care facilities in the United States have died as a result of COVID-19; these deaths account for approximately forty percent of the COVID-19 deaths that have occurred in the United States. Many government officials, on both sides of the aisle, are working to understand why so many federally certified nursing homes and long-term care facilities failed to protect our most vulnerable citizens from COVID-19. Evidence shows manipulation of the Centers for Medicare & Medicaid Services (CMS) Nursing Home Compare Five-Star Quality Rating System may be contributing to the problem. This emerging evidence has prompted State Attorneys General (AGs) to hold facilities manipulating the System accountable for deceptive practices.

In 2008, CMS implemented the Five-Star Quality Rating System to help families identify safe and reliable facilities for their loved ones. The ratings are based on independent, third-party health inspections; self-reported staffing levels based on the number of hours of care provided on average to each resident per day; and self-reported quality measures that include how well residents’ physical and clinical needs are met.

Families relying on this tool may assume that placing their loved one in a five-star-rated facility means they are in a safe facility, but families should be aware of long-standing concerns with the Rating System. In 2014, the New York Times published a report on the System’s shortcomings. The report found that, although the Rating System encouraged some nursing homes and long-term care facilities to improve, some facilities’ ratings improved even when care did not.

Unfortunately, allegations of the manipulation of self-reported data continue today. Thus, some top-rated facilities remain ill-prepared to handle the day-to-day needs of patients and lack capacity to manage the current public health crisis. As death tolls have climbed in these facilities, the New York Times published another investigatory report highlighting the Rating System’s shortcomings on March 13, 2021. The report reviewed the reliability of self-reported data by analyzing nursing home payroll records, records of state inspections of facilities, and financial records.

The report found that much of the information provided to CMS by nursing homes was wrong. Reported staffing levels included employees on vacation. Resident accidents and health problems went unreported. Facilities with five stars for quality of care were almost as likely to fail in-person inspections as to pass them. Facilities received advanced notice of surprise inspections—defeating the purpose of the only independent evaluative factor. More than two-thirds of five-star facilities were also cited for infection control or patient abuse problems. Despite incidences of rape, homicide, and rampant COVID-19 spread, many homes maintained a five-star rating. These issues are difficult for government officials to ignore.

State AGs are pursuing litigation against facilities that have manipulated the Rating System to secure higher ratings and further investigating the allegations contained within the New York Times report. Former California State AG Xavier Becerra sued Brookdale Senior Living, Inc., the largest senior living facility in the United States, based in part on manipulated self-reported data. The complaint alleges that Brookdale engaged in false and misleading statements and unlawful, unfair, and fraudulent business practices by, among other things, providing CMS false information and falsely advertising about the quality of its facilities. California is not the only state pursuing these issues. New York AG Letitia James issued a report in January 2021 on the response of New York nursing homes to the pandemic. Her report revealed that more nursing home residents died than reflected in New York’s data; nursing homes with low CMS ratings had higher COVID-19 deaths; and among other things, the failure of nursing homes to comply with infection control protocols increased COVID-19 risks.

Lawsuits like the one against Brookdale Senior Living, Inc., will hopefully begin to accelerate reform in nursing homes and long-term care facilities. CMS should consider not only restructuring its Rating System, but also working to improve federal oversight of the nursing home and long-term care facility industry and patient mistreatment. Placing a loved one in these facilities is a difficult decision for many families. The unreliable Rating System, particularly during the pandemic when families cannot physically check in on their loved ones in these facilities, creates an unacceptable situation that CMS must address. Our loved ones deserve better.

Please contact Managing Editor for Sources.

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Weakening Roe v. Wade: Conservative States Have a Plan

In 1965, illegal abortions performed in unsafe settings made up one-sixth of all pregnancy-related deaths. In 1973, the Supreme Court addressed this issue in the landmark decision from Roe v. Wade by holding that access to safe and legal abortion is a constitutional right. States that do not agree with this decision have consistently attempted to attack access to abortion, most often by imposing targeted regulations of abortion providers, or “TRAP” laws. These restrictions, which impose costly, severe, and medically unnecessarily requirements on abortion providers, are designed to make access more difficult by effectively putting providers out of business. In 2016, the Supreme Court struck down Texas restrictions that created an undue burden for women seeking abortion services in Whole Woman’s Health v. Hellerstedt. Although this decision did not invalidate all TRAP requirements, it opened the door for challenges to other state TRAP laws.

Now, less than 50 years after the Roe v. Wade decision, states are devising new plans. Conservative-leaning states are introducing anti-abortion bills in hope that lawsuits will come before a Supreme Court that is now packed with appointees of the previous administration. The states are attempting to chip away at abortion rights by using the courts to add more restrictions on access. As a result of the democrat-led Congress and the new Biden Administration, the only way that the anti-abortion groups can achieve their goals is by pushing legislation through at the state level. Over a dozen states have introduced bills that would prohibit access to abortion medication through the mail and require doctors to offer an ultrasound before terminating the pregnancy. The most shocking of these, a Montana bill that would create a ballot initiative asking Montanans to decide whether fetuses that live through abortion are people with legal rights. It is highly likely that these proposed bills will become law, and subsequently will be challenged in court. Nicole Smith, a fellow of the Society of Family Planning confirmed that the onslaught of bills is going to result in a legal battle, starting in the states and progressing to the Supreme Court, which is exactly what the conservative states intended.

If conservative states are successful at weakening or overturning Roe v. Wade, less than half of U.S. states will retain its abortion protections. The highest courts in ten states have recognized the right to abortion as a fundamental right, and 11 additional states have passed legislation protecting access to abortions. That leaves 29 states that are lacking legal protection for abortions. Of those 29, there are approximately 24 that are considered hostile toward abortions and would likely attempt to ban access altogether. The remaining five states have not considered the question in their highest courts, and have no legislation guaranteeing rights, so the effects of weakening Roe v. Wade would be uncertain. Nearly one in four women in American will have an abortion during her lifetime – but where will these women go, and what will they experience, if abortion is outlawed in their state? As of January 2021, at least 19 abortion related cases are close to reaching the Supreme Court – which means that conservative states are one step closer to  restricting abortion rights that the Court once ruled were constitutionally protected.

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State Ban Puts Abortion Rights at Jeopardy Once Again

Before the U.S. Supreme Court ruled on Roe v. Wade, women went great lengths to end unwanted pregnancies. Those with money traveled to countries where abortion was legal or persuaded their family physician to illegally perform the procedure. Other women were limited to self-induced abortions, using household items like hangers, knives, chemicals, and stairs. These unconventional methods often led to gruesome injuries or death, and reports indicate women of color disproportionately faced such complications. The right to control one’s body became the central tenant of the Women’s Rights Movement, and many compared the government’s control over a woman’s body to an authoritarian government.

In 1973, the Supreme Court heard Roe v. Wade and decided that abortion is a fundamental right subject to the strictest scrutiny. The Supreme Court held that a state can impose its interest of preserving life only after viability, except when it’s necessary to preserve the life or health of the mother. After its legalization, abortion related deaths dramatically declined. In Planned Parenthood v. Casey, the Supreme Court invalidated restrictions that imposed undue burdens on the right to obtain an abortion prior to viability. This case is exceptionally critical as the Court emphasized stare decisis, commonly known as precedent, and indicated that to overrule the central tenant of Roe would undermine judicial legitimacy since the underpinnings of its decision had not changed. Notably, the Court stressed that the ability of women to participate equally in the economic and social life of the nation is dependent on the ability to control their reproductive lives.

Although Roe effectively legalized abortion, states continuously create barriers to abortion access by passing legislation regulating provider and patient conduct, even without benefit to the patient. These restrictions have led to detrimental impacts on access to abortion, for example leaving many states with only one abortion clinic.

On March 9, Arkansas passed a new restriction on abortion that is far more oppressive than other states’ restrictions. This legislation acts as a near-total abortion ban by only allowing it when needed to preserve the health of the mother or fetus. This statute is one of the nation’s most restrictive bans because there are no exceptions in instances of rape or incest and violators risk a $100,000 fine or time in prison. Within the last two years, courts have repeatedly blocked other states’ attempts to implement similar restrictions. Unfortunately, this Arkansas abortion ban is remarkably different. As the statute currently stands, it is unconstitutional for violating the framework laid out in Roe. However, Arkansas Governor Hutchinson’s goal with this restriction is to go before the Supreme Court and overturn Roe. This is especially concerning as it would be the first major opportunity for the Court to review Roe since gaining a conservative majority.

If the Arkansas statute is reviewed by the Supreme Court, Justices will be forced to decide whether or not to apply reinforced judicial precedent to a fundamental right, whose legal underpinnings remain unchanged. Women have been having abortions for decades and will not stop simply because it is illegal. The question is: will there be a safe abortion option for women in the United States or will we return to our inhumane past?

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Can we disclose? School Privacy Issues During COVID-19

As COVID-19 continues to spread in the US, teachers, students, and their respective communities face tough privacy issues. Typically, the Health Insurance Portability and Accountability Act (HIPAA) delineates patients’ privacy rights regarding the disclosure of protected health information. However, this is not the case for student health information. The Family Educational Rights and Privacy Act (FERPA), enacted by the US Department of Education, provides guidance to schools handling privacy issues related to COVID-19. The difference between the two health information privacy acts is that FERPA specifically protects health information contained in school records. Similar to HIPAA, FERPA requires consent to disclose protected health information. However, the pandemic has created a “safety emergency exception” to the consent requirement.  

As children across the US slowly return to their classrooms, there are concerns about how and when information about COVID-19 cases will be released to teachers, school staff, students, and their families. USA Today reported inconsistencies in how school districts and health departments coordinate and release information. One reason for the inconsistencies is the lack of clarity at the state level regarding how to approach ongoing risk of COVID-19 in schools. The confusion because of the discrepancy in the application of FERPA compared to HIPAA. Specifically, HIPAA prevents the disclosure of health information, yet while FERPA allows the disclosure of such health information as long as it  as long as it does not include information that could identify the student.

The specific language in FERPA regarding student privacy prohibits the disclosure of the student’s name, ID, or any other information that could indirectly or directly be traced to the affected student.  Moreover, the language in FERPA mandates that the disclosure of health information is examined on a case-by-case basis. This provision ensures that only necessary information is disclosed in consideration of other students’ health during the Pandemic. Additionally, there is a recordkeeping section that requires schools to maintain a record of emergency disclosures that the affected student and parents can examine at any time.

So, what are the legal and public health implications for unconsented disclosure during COVID-19? Containing the spread of the virus, for the time being, has to be the number one priority. There is a real threat to public health and safety when students and parents are unaware of COVID-19 cases that occur within their respective schools. It is understandable that tension may arise when disclosing student health information without clear guidance from state and federal leadership on how to protect those privacy interests. The rationale for withholding such important information during a global pandemic makes no sense. The solution to widespread confusion and inconsistencies is transparency across the board in terms of tracking the spread of the virus. Such transparency in school systems ensures that school districts across the US are doing their jobs and taking the proper precautions to protect the health of our nation’s children.

Please contact Managing Editor for sources.

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Algorithmic Discrimination against Black Americans in Healthcare

As technology continues to advance, hospitals and healthcare providers have gained the ability to utilize artificial intelligence (AI) and algorithms to automate many of the complex decisions that were once only capable of being made by human beings. AI is now used to detect and diagnose diseases, screen patients, and develop various treatment protocols. While the purpose of AI was intended to streamline and simplify decision making and detection processes for hospitals and providers, it has inadvertently created health inequities for Black patients. A study published by Science in 2019 revealed that predictive healthcare algorithmic software discriminates against Black patients by distributing medical resources to white patients over Black ones.

            The study analyzed data from Optum’s algorithmic AI, a health services company, which programmed its AI to predict which patients were most in need of additional care. The color-blind AI system ranked patients solely according to how much they have paid for health care in the past. Because the algorithm did not account for race when predicting which patients were most in need of healthcare services, the fact that Black patients  have less health access to healthcare, and thus pay less for healthcare services, was overlooked. The study revealed that Black patients had substantially worse health despite paying $18,000 less for healthcare services per year compared to their white counterparts. The discrepancy in the amount that Black patients paid for healthcare compared to white patients is the result of Black patients having less access to healthcare services. Of the patients that Optum’s algorithm indicated were in need of additional care, only 17.7% were Black whereas researchers indicated an unbiased proportion would have been 46.5%.

            While Optum’s AI is only one of many algorithmic artificial intelligence products that disproportionally disadvantaged Black patients, finding and acknowledging the present biases is the first step towards correcting them in both AI and human behavior. While excluding race-based criteria may seem like a step towards health equity, racial equality calls for the acknowledgement that there are differences between racial groups. Small changes can be made to ensure that AI software is without bias. Measuring patients’ needs by avoidable costs or higher burdens of chronic conditions eliminates racial biases found in the original AI software as these measurements are more inclusive of Black patients’ struggles. Biases in AI algorithms are not inevitable. By recognizing the biases in AI, we can start to develop new technology that accounts for the different ways in which Black patients are disproportionately treated in healthcare settings.

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