INDIANAPOLIS – The COVID-19 pandemic exposed shortcomings in Indiana’s long-term care system, but the Indiana legislature took no action to reform care at the nursing home level this year.

Almost half of the nearly 12,000 Hoosiers who’ve died of COVID-19 resided in nursing homes and other assisted living facilities.

“There’s a lot of discussion around nursing home care … taking place as the administration has outlined changes that they would make,” House Speaker Todd Huston, R-Fishers, said. “I do not, frankly, remember a ton of bills that dealt specifically with that topic.”

Legislators filed a handful of bills related to care for the elderly, including a bill to allow nursing home residents to consent to room monitoring, but few attempted to address Indiana’s poor care outcomes exposed by the coronavirus.

“Obviously, nursing homes were kind of ground zero for COVID-19 … so that is of course a very serious concern,” Senate Pro Tem Rodric Bray, R-Martinsville, said. “We’ve had some conversations about that, but there’s no legislation right now.”

Advocates initially had high hopes for long-term care reform in Indiana, a system that disproportionately relies on skilled nursing facilities and assisted living rather than home- or community-based care models.

Jennifer Sullivan, the Family and Social Services Administration secretary, announced this year that the governor’s administration recognized a shift in Hoosiers, with more preferring to age at home rather than in institutional facilities. She called this a “rebalancing” of the state’s Medicaid budget, which pays significantly more money to facilities.

“We will always need quality institutional nursing home care,” Sullivan emphasized. “This is important to support everyone, and we want to make sure that everyone has access to these types of services across Indiana; we really just want to make sure that the entire continuum is strong and supports quality.”

On Wednesday, the state announced another 660 deaths attributable to long-term care facilities, bringing the death toll to 5,870 Hoosiers at nursing homes and assisted living facilities.

Kris Box, the state health commissioner, said the deaths were counted in the state’s totals but never matched with a nursing home and only discovered after an audit. Prior to the pandemic, the state failed to hold negligent and careless homes accountable, and the federal government rated 92 of Indiana’s 534 facilities with one star, the lowest possible rating.

LIABILITY SHIELD

On Thursday, Gov. Eric Holcomb signed the COVID-19 liability shield into law to protect businesses from “frivolous lawsuits” and “aid in the state’s recovery.”

According to NPR, nearly 30 other states have granted legal immunity to nursing homes to shield them from COVID-19 lawsuits.

“Most Hoosier businesses and other organizations are making good-faith attempts to protect their customers and employees because it is the right thing to do and it makes for better business in the long run,” Holcomb said. “I want to thank lawmakers for rapidly passing this key piece of legislation.”

Senate Bill 1 received criticism for being overly broad in its protections and failing to hold nursing homes accountable for disproportionate COVID-19 deaths.

“Comprehensive care facilities should not be allowed to abdicate their responsibilities to residents and aggrieved loved ones,” Rep. Ed DeLaney, D-Indianapolis, said in a Feb. 9 statement. “The (Republican) supermajority’s broad pro-business, anti-family stance on civil liability shields will allow neglect and systemic failures resulting in the loss of life to go unchecked.”

While long-term care facilities account for just 3.7% of Indiana’s total COVID-19 cases, residents and staffers comprise nearly half, or 49.5%, of all deaths.

Research and federal government watchdog agency reports suggest that a high number of deaths can be attributed to low staffing. Indiana ranks near the bottom nationwide in terms of staffing, according to several organizations.

“It defies logic that elected officials would desert our duty to protect our most vulnerable constituents,” DeLaney said. “We should not watch narrow corporate interests supersede justice.”

In particular, opponents of Senate Bill 1 worry that nursing homes could claim that low staffing due to COVID-19 contributed to neglect or poor care even though nursing homes were regularly understaffed before the pandemic.

RIGHT TO VISITATION

Te only nursing home bill to move, Senate Bill 202, authored by state Sen. Linda Rogers, R-Granger, strengthened Indiana’s Essential Caregiver program and protected a family’s right to nursing home access — even during a pandemic.

Indiana recognizes certain family members as Essential Caregivers who contribute extensively to a loved one’s care. With this status, the Essential Caregiver can continue to visit a facility even as the COVID-19 virus rages.

During a restructuring announcement, the state recognized earlier this year the role family members play in their loved ones’ lives, especially at some of the most understaffed nursing homes in the nation.

The Long-Term Care Community Coalition ranked Indiana 46{sup}th{/sup} in the nation for its staffing and care, even as facility census totals declined by 12% nationwide. At two-thirds, or 350, of nursing homes and assisted living facilities in the state, staff spent less than the national average of 3.43 hours per with day with each resident.

But designating a family member as an Essential Caregiver is at the discretion of a facility, not the state department of health. Families in the Indiana Caregivers for Compromise Facebook group rallied together to push lawmakers to take away this discretion and protect their facility access.

The importance of this access became apparent as lockdowns lifted and some family members discovered facilities neglected their loved ones, many of whom had overgrown hair and nails, unchanged diapers and other signs of neglect.

The National Consumer Voice for Quality Long-Term Care released survey findings from nearly 200 family members who reported following the lift in lockdowns that their loved ones’ physical and mental abilities had declined. Families reported bed sores, severe weight loss, depression and suicidal ideations in their loved ones because of the isolation.

FAMILY LOCKED OUT Indiana’s visitation bill hasn’t been approved by the House, so families largely remain locked out of nursing homes.

Via email, the state health department said the agency continued to rely on facility guidance requirements set out by the Centers for Medicare & Medicaid Services, which last updated its guidance in September.

“Throughout the pandemic, one big concern has been the risk that someone who is asymptomatic could bring COVID-19 into a facility unknowingly and cause an outbreak,” a health department spokesperson said. “Long-term care facilities have been severely impacted by COVID-19 because the disease spreads more easily in congregate settings and most residents of these facilities are more vulnerable due to age or medical conditions.

“That concern must be balanced against the impact of social isolation on residents.”

The email said vaccination status isn’t a criterion for visitation.

Dan Rusyniak, the chief medical officer of the Family and Social Services Administration, said that the state followed CMS’ guidance to determine a county’s positivity rate for nursing home visitation.

As long as the county has a positivity rate less than 10%, nursing homes can open to visitation.

“Counties that are higher than 10%, according to CMS, would still not have indoor visitation. They could do outdoor, but, obviously, with the weather that’s a lot more difficult,” Rusyniak said.

The state and CMS use different methods to calculate positivity. While Indiana reports only one county, Whitley, with a positivity rate too high for visitation, CMS reports that 28 counties have positivity rates over 10%.

“I think one of the big things that we’re waiting on is … whether or not vaccinations will change that,” Rusyniak said. “Certainly we hear lots of comments from families who would really love to be able to hug their loved ones or hold their hands.”

Rusyniak said Indiana and other states constantly asked CMS about updating social distancing guidelines for nursing home visitation.

“On a (long-term care) call with CMS, this comes up every single call, every single week,” Rusyniak said. “Because every state is really looking (to loosen) some of that guidance so that we can get more families in contact with more of their loved ones.”

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