The Forgotten Nursing-Home Tragedy

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Opinion by Jay Caspian Kang, New York Times, November 4 2021

For many of the most vulnerable people in our society, the pandemic has not let up. More than 186,000 residents and staff members of nursing homes and long-term-care facilities have already died of Covid-19. In March, the Covid Tracking Project estimated that nearly 1 in 10 people who lived in nursing homes in the United States had died of the virus. And a report released by the Kaiser Family Foundation in early October showed that during July and August of 2021, the number of Covid deaths inside nursing homes had started to rise again, reaching its highest level since February.

And yet, these older residents seem to have been tucked back into their facilities and forgotten about by politicians and the media. The lack of political attention is all the more puzzling given how much the nursing home catastrophe was at the center of a high-profile scandal.

On March 25, 2020, as the pandemic was spreading unabated through the state of New York, then-Gov. Andrew Cuomo issued a directive that effectively forced nursing homes to accept Covid-19 patients who had been released from hospitals, so long as they were deemed stable. Even during those early days of the American emergency, such a decision should have been unthinkable. Elder-care facilities had already become locuses of death around the world, requiring especially strict scrutiny and protocol.

A month later, Cuomo used his emergency powers to install liability relief for nursing homes and hospitals. This order provided expansive protections against lawsuits for nursing homes, which, along with hospitals, had been big contributors to his 2018 campaign and which have powerful lobbies (The protections were lifted this past April.)

In February of this year, The Associated Press reported that over 9,000 Covid patients had been placed in nursing homes as a result of Cuomo’s order, which was 40 percent more than the State Health Department had previously reported. The New York State attorney general’s office also alleged that the state had undercounted the number of people who had died in nursing homes by up to 50 percent. In March, The Times reported that aides for Cuomo had purposefully obscured the number of nursing home deaths, which, in part, led to several top public health officials resigning in protest. (In response to these allegations, the New York State Health Department released a 37-page rebuttal that shifted blame away from Cuomo’s policy choices and mostly seemed to target health care workers as the main culprits.)

New York may have been one of the nation’s leaders in nursing home deaths, but the elder-care crisis extends far beyond the decisions of one politician and his aides. I spent the first nine months of the pandemic reporting on nursing homes in the San Francisco Bay Area for The New Yorker and found that the industry, like much of America, had been suffering under increasing privatization and corporatization. As private equity firms and corporate chains bought up more and more nursing homes, quality of care had declined across the board, mostly because of the lack of adequate nurse staffing. Nurses were routinely working at several elder-care facilities at once.

When the pandemic hit, this lack of staffing led to a variety of nightmare scenarios. Some nurses were left to take care of entire wings of nursing homes by themselves. Other places were so understaffed that they allowed asymptomatic coronavirus-positive nurses to continue to go to work. In other areas, contagious nurses were unwittingly going from nursing home to nursing home, leaving a trail of illness and death, while the country struggled to enact any sort of comprehensive testing.

It was a public facility in San Francisco that offered a good example of how to battle the pandemic inside a nursing home. Laguna Honda, one of the largest county-run nursing homes in the country, houses a significant portion of the city’s indigent elderly. Under normal conditions, an outbreak there would have almost certainly led to extensive loss of life as understaffed and poorly run facilities scrambled to deal with the crisis. That didn’t happen, in no small part, because Laguna Honda and its staff are run by the local government. Not only did the facility have much better staffing numbers than many of the for-profit nursing homes in the area; the direct link to public health officials also allowed for direct and decisive action.

It’s true that outbreaks can happen at even the best-run facilities, but the for-profit industry can almost entirely be blamed for the scope of the American nursing home tragedy. It seems to pay more attention to political lobbying than it does to adequate staffing and care, and the politicians who bend to their will.

One would think that tens of thousands of deaths and the Cuomo scandal should have led to a reckoning with the nursing home industry. For the most part, that hasn’t happened as a large majority of politicians have moved on to other concerns. The business of nursing homes, at least for the time being, seems undiminished. A May article in the Journal of the American Geriatrics Society found that the pandemic had very little effect on the financial well-being of the country’s publicly traded nursing home companies.

But not everyone has stayed quiet about nursing homes. New York Assemblyman Ron Kim became one of Cuomo’s loudest and most consistent critics and has written many nursing home reform bills that have passed through the Assembly.

I spoke to Kim for today’s edition of the newsletter in what I hope will become a recurring topic here. Our conversation has been edited for clarity and length.

Nursing homes and elder care aren’t really things that generally make somebody’s political career. What caused you to get involved so heavily in this one issue?

It’s deeply personal for me. We had constituents at the peak of the pandemic that came to us desperately crying that their loved ones were dying in these facilities. The language that they used was out of this world. Half of my staff was like: “Don’t talk to this person, they seem crazy. How could these facilities be committing murder?”

My gut feeling was that I should talk to them. And after I understood what was going on, because I also had an uncle in a nursing home, things started to connect very quickly for me. What I realized was that what I was seeing on the ground did not match up with what the governor at the time was portraying in the national media. And that’s when I started to be vocal about what the state needed to do immediately to start saving these people’s lives.

Why do you think such dire situations are happening today in nursing homes?

I think the larger question is, why has there not been a reckoning, an honest conversation at minimum, to fix the problem? I think there’s three main reasons.

One is a lack of political courage to keep each other — politicians and special interest groups — accountable.

No. 2, I think there are way too many powerful individuals and groups implicated in this scandal, which goes back many decades.

No. 3, I think we’ve culturally accepted and normalized ageism. Because when it comes to corporate and establishment Democrats involving racism or sexism, we are so quick to police each other and call each other out, because we want to keep that moral standard. But when it comes to older people dying thousands at a time, we’re out eating brunch, looking the other way.

There is no return on investment for policing ageism. I think that’s the status that we’re in, and unless we’re completely honest about where we are, we’re not going to move forward.

In one of the bills that you sponsored, you pointed out that in New York State in recent years, elder-care facilities have gone from one-third to two-thirds privately owned, a trend we’re also seeing nationwide. What is a specific thing you would like to see done in response to the rapid privatization of elder-care facilities?

Well, I think of two things. When we go back to the ’70s and ’80s, when we had a crisis like this, we responded by strengthening the rights of nursing home residents and patients. The country in the ’80s passed the Bill of Rights for nursing home residents. In places like New York State, we strengthened that by passing a state Bill of Rights that went even further. We did that because we recognized the state was failing to protect older adults. By giving them the right to recourse, by making it very expensive for the industry to act negligently, we were able to save more older adults.

During this pandemic, Governor Cuomo stripped away those rights by granting a near blanket corporate immunity to nursing homes, a law that other states and even the federal government tried to emulate. By taking away rights retroactively, you give the industry a “Get Out of Jail Free” card and disincentivize them from hiring more people and investing in saving people’s lives.

So, No. 1, we need to strengthen people’s rights. No. 2, we need a public option: a viable public takeover plan for when the industry and the market are failing, to step in and take back the facilities. In lieu of us having a viable plan, the market and the industry will never fix themselves because there is no competitive model that will push them to do better. We have to put in competitive nursing home and long-term-facility models that can check the privately run industry.

Can you give me the nuts and bolts of what a public takeover would look like? Let’s say that there’s a failing nursing home in a city. It’s run by a for-profit chain, has all the problems that you alluded to. What does that look like for the county or state to take over that nursing home?

In places like North Dakota, which has the only state Public Bank, such an effort would be easier to execute, because we would have the public capital to leverage and go in and purchase a privately run entity that’s failing. So in lieu of a public bank in New York, we still have public capital, we have emergency funds that are still available to us.

We can leverage some of that to go in and use eminent domain, something we think is only used for private real estate development. I think we can build public capital by using eminent domain. And unless we exercise our right to do that against the private markets, they’re not going to respond. They’re going to extract and exploit because as long as you’re for profit, you have quarterly duties to return profits to shareholders.

What are the differences between government-run or even worker-cooperative models and these big, for-profit nursing home chains?

The biggest difference is the accounting of public benefits. Most nursing homes are subsidized through Medicaid and Medicare programs, and there is massive fraud by private and even nonprofit organizations. They are keeping shoddy records, creating secondary and tertiary markets, hiring consultants, providing no-show jobs to family. So basically, if Medicaid gives your grandmother a $100 benefit, by the time it reaches her she’s getting maybe 10 cents on the dollar for that, or $10 out of $100. By taking it over publicly and empowering the workers at the center, we are keeping better records and making sure that the majority of public benefits go to care and not the pockets of profiteers.

How big a lift is this politically? We’re talking about lobbyists, we’re talking about billionaires who own some of these chains. We’re talking about an entire network of politicians.

The industry is dubbed the Syndicate, and its problems go back many decades. They’re very powerful figures and integrated with hospitals and the home care industry. It’s corrupt all across the board. I mean, you’re talking about lobbyists, hospitals, the nonprofit industrial complex that are behind this mess.

The good thing is, in a democracy every couple of years we reset. We’re going through political changes at the statewide level as we speak: a new governor, a new attorney general and many other seats that might open up. And every time we reset the agenda, we can hold elected officials accountable. So I don’t plan on endorsing any statewide official who’s taking a dime from these lobbyists. Because Andrew Cuomo took in money from this industry that wrote these deadly policies. Not the families, not the workers, not the lawmakers — it was Cuomo that brought in the lobbyists who wrote a draft of the legal immunity provision and pushed for it to be included.

There seems to be some apathy among the public toward this issue. How do you account for that?

The issue is super complex. There’s so many layers to health care, Medicaid, Medicare. It is complex for even the smartest lawyers. It is also very confusing for average Americans.

As a society, we’ve also become desensitized to older people getting killed. It’s almost as though it’s reached the point where it’s easier to look the other way, just to get back on the treadmill.

Unfortunately, the political courage is very lacking. Because it’s not just about Cuomo and the policies; it’s about the ecosystem of establishment politics that propped up and validated people like Andrew Cuomo for many years. Those in power now see politics as business. They submit to power, they cut deals, they protect markets at all costs and consistently hide behind words like “industry stability.” And that’s also a systemic problem that we need to fix.

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Jay Caspian Kang (@jaycaspiankang), a writer for Opinion and The New York Times Magazine, is the author of “The Loneliest Americans.”