New federal nursing home commission met privately for weeks before delivering draft recommendations to the government

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By Alexa Mikhail and Dan Rosenzweig-Ziff, The Washington Post, August 21 2020

A 25-member task force has been meeting out of public view for weeks and has drafted recommendations related to the nursing home industry’s response to coronavirus. (N/A/iStockphoto/Getty Images)

With some members connected to industry and little opportunity for public input, advocates fear further weakening of patient protections.

A newly formed independent commission set up by the Trump administration to assess the response of nursing homes since the start of the pandemic has met for weeks behind closed doors, providing limited opportunities for public input, records and interviews show.

Advocates for nursing home reform say they fear that the group, which recently submitted preliminary recommendations to the Centers for Medicare and Medicaid Services, will suggest the government scale back oversight of the industry and relax some long-standing federal standards meant to protect the well-being of residents.

“Everyone is waiting with bated breath to see the results of the commission,” said Mike Dark, an attorney for California Advocates for Nursing Home Reform, a nonprofit watchdog group. “Industry interests are certainly very well represented.”

In April, as covid-19 outbreaks swept nursing homes across the country, CMS Administrator Seema Verma announced the new, high-profile commission would quickly find ways to better protect “the most vulnerable and fragile citizens” during the spiraling health crisis and beyond. More than 48,000 nursing home residents and several hundred caregivers have so far died of covid-19, the disease caused by the novel coronavirus, according to a Washington Post analysis of state data.

The group’s 25 appointed members were tasked in part with enhancing strategies for infection control and strengthening protocols to identify covid-19 in nursing homes and mitigate its spread. The group began meeting privately in June, with commission members required to sign nondisclosure agreements to prevent details about discussions from becoming public.

Among the commission’s members: Neil Pruitt, chief executive of the long-term health-care company PruittHealth and the past chair of the board of governors for the American Health Care Association, the powerful industry group that represents more than 14,000 long-term care providers. Also on the commission: Roya Agahi, the chief nursing officer of CareRite Centers, which runs nursing homes in multiple states, and Jeannee Parker Martin, the president and CEO of LeadingAge California, an industry group that represents nonprofit providers.

About 800 people applied to be part of the commission, according to the group. One was Toby Edelman, senior policy attorney with the nonprofit Center for Medicare Advocacy. Edelman, who was not selected, has focused on nursing home reform since the 1970s.

Of the 25 members, about 10 help run nursing homes or advocate on their behalf, according to the biographies of members released by the commission. Other members include academics, state health officials, patient advocates and one nursing home resident.

“The industry’s perspective will certainly be heard,” said Edelman, who had hoped to address staffing shortages, pay for caregivers and widespread infection-control lapses. “It’s very important to have residents and people who advocate for residents otherwise their perspectives will be drowned out by the industry.”

A spokesperson for CMS confirmed the agency had received preliminary information from the commission.

“The Administrator has not seen or been briefed on any recommendations at this time because the Commission’s work is still in progress and to protect the integrity of the process she will not be briefed until CMS receives the Commission’s final recommendations,” spokesperson Johnathan Monroe said in an email.

CMS, which regulates Medicare-funded nursing homes, directed questions to a contractor that was hired to select members of the commission, oversee the process and produce a report with findings and recommendations.

MITRE, awarded $2 million for the work, said the commission is made up of diverse members with decades of experience in nursing home management and quality and safety standards.

“The commission, by design, is comprised of 25 members representing a diversity of professional experiences, expertise and interests,” Jay Schnitzer, MITRE’s chief medical officer and moderator of the commission, said in a statement to The Post.

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Martin, the commission member from LeadingAge California, said the recommendations will represent viewpoints from a “broad knowledge base.”

Penelope Ann Shaw, the only nursing home resident on the commission, said the group worked to present a comprehensive overview of the industry’s response to the pandemic. Shaw, who lives in Massachusetts, said the commission met about seven times, with CMS staff attending the meetings.

“It’s very, very intense,” she said. “They want to accomplish a lot in a very short period of time.”

Some watchdog groups and family members of nursing home residents say the public should have been more involved in the process.

Cissy Sanders, who began advocating for nursing home residents after her mother’s home in Austin experienced an covid-19 outbreak, was among the rejected applicants. Sanders said she wanted to listen in to commission meetings even after she was turned down and emailed MITRE about making the meetings public in late June. She received an email in response, denying the request.

“Commission convenings will be closed to the public to allow for open discussion and candid sharing of opinions as the Commission develops its recommendations,” according to the email, reviewed by The Post. “Throughout the course of its engagement, the Commission may provide a public engagement mechanism. Thank you for your understanding.”

Cissy Sanders works from her home in Austin. (Montinique Monroe for The Washington Post)

Dark said the meetings should have been open to the public from the start.

“I think it’s inexplicable that a commission that has been convened to address a crisis which is unfolding before the public every day would be acting in secrecy,” he said.

Schnitzer told The Post that commission members agreed to keep proceedings confidential to “facilitate candid sharing of views and encourage robust debate” and that MITRE solicited public opinion through a public engagement form on its website.

“This feedback is helping to inform the commission’s work,” he said.

But the online form was taken down in mid-July, about a week after it was put up. Sanders said she didn’t even know the form existed until she emailed MITRE.

“That just completely underscores the lack of transparency that has been integral to the nursing home crisis from the beginning,” Sanders said. “This is window dressing. ‘Oh, we better slap up a public engagement feature to cover ourselves. … We’re going to control the dialogue.’ ”

Sanders, Edelman and others say their biggest concern is that the commission could recommend weakening regulations meant to protect nursing home residents. Among them: rules that prohibit nursing homes from arbitrarily discharging residents; and financial penalties for failing to follow health and safety standards.

“I hope they will seriously look at the research data and not let it be another opportunity for the nursing homes to lobby the government for more money and less regulatory oversight,” said Charlene Harrington, a professor emerita at the University of California at San Francisco who has studied nursing homes for decades. “They have already spent millions of dollars lobbying the administration and have gotten what they wanted. I am concerned this is another effort.”

Pruitt, whose nursing homes and assisted-living centers are spread across the Southeast, said the commission is poised to represent a range of perspectives.

“PruittHealth has served one of the most vulnerable patient populations for 50 years, and I am blessed to be afforded the opportunity to advocate for them as a member of the commission,” he said in a statement.

In recent months, several Pruitt homes have experienced covid-19 outbreaks. One was a facility for veterans in North Carolina, managed by Pruitt, that was recently cited by state inspectors for allowing drive-up visits by relatives. The concerns were detailed by North Carolina Health News.

A PruittHealth spokesperson said the leadership team was trying to improve the quality of life for residents who had not seen family members and that their relatives wore masks and stayed in cars during visits.

“The visits in no way contributed to the spread of COVID-19 in the center,” the company said.

Several other members of the commission did not return calls or declined to comment.

Edelman said the commission has a unique opportunity to address dangerous and often deadly lapses in patient care before and during the pandemic.

“If we don’t think about what we learned and what has gone wrong,” she said, “it would be a lost opportunity.”

Debbie Cenziper and researcher Alice Crites contributed to this report, along with Joel Jacobs, a graduate student at Northwestern University’s Medill Investigative Lab. Mikhail and Rosenzweig-Ziff are journalism students at the Medill Investigative Lab.