As the coronavirus pandemic took hold in the U.S. six months ago, nursing homes and long-term care facilities emerged as hotspots where COVID-19 ran rampant.

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In a new report written by 50 top national experts to assess and guide the U.S. policy response to the pandemic, University of Arizona researcher Tara Sklar explains how health and safety issues at long-term care facilities date back to long before COVID-19. She also proposes a roadmap of recommendations that federal, state and local governments should take to address these issues.

The report covers a wide range of topics, from public health law to immigration policy to election administration. It was published by Public Health Law Watch, an initiative of the George Consortium – a network of academics, experts and scholars in public health.

Sklar, who authored one of the report's 35 chapters, is a professor and director of the Health Law and Policy Program in the UArizona James E. Rogers College of Law. Much of her research focuses on how policies affect the health and well-being of older adults.

Sklar says missteps before the pandemic arrived in the U.S. made the virus more difficult to control in nursing homes and in other long-term care settings, and she believes urgent reforms are needed. She also predicts that a potential new "defund" movement could target the nursing home industry.

Q: Your chapter suggests that there were issues in nursing homes and long-term care facilities before COVID-19 that made the pandemic worse for patients. Can you explain what those were and why they exacerbated the spread of the virus?

A: I organized this chapter into three major missteps: staffing levels; controlling and preventing infectious diseases; and emergency planning and accountability. They're all interconnected, but adequate staffing levels with policies to support them, such as access to paid sick leave, are key to all three, and they fall short. What's sad about the whole situation is now there are over 68,000 reported coronavirus-related deaths connected to nursing homes in the past six months. Furthermore, we know these are older folks who need a lot of care and attention, especially with restrictions on family members visiting during the pandemic, and we know that bringing on additional staff will help curtail the spread, yet staffing levels haven't been addressed.

The reason the industry gives for not increasing staffing is that it would raise costs too much to care for these patients. But there's ample information about what the nursing home industry has been making in profits: 70% of long-term facilities in the U.S. are run by for-profit companies, and there has been a drop in per-patient staffing hours over time, even as the federal and state governments pay higher rates for this care, mostly via Medicaid. The average nursing home resident in the U.S. costs $245 per day. It is a lot of revenue that optimally needs to be going back into these institutions and improving quality of care.

In terms of accountability, a U.S. Government Accountability Office report found that 82% of nursing homes, which is over 13,000 facilities, have received some kind of citation related to poor infection control. So, it's a rampant issue. And that report took place prior to COVID. Many nursing homes are dependent on funds from the Centers for Medicare and Medicaid Services, which provides oversight of these facilities. But the fines are minimal in many cases, and rarely does a nursing home ever close. So, without meaningful oversight, incentives or enforcement, why would a for-profit entity go above and beyond to make sure that these are the safest and healthiest and highest-quality facilities? In fact, the exact opposite has been happening during COVID-19; the industry is using resources to lobby for immunity from liability where it will be much harder to sue them, which I wrote about in The Conversation with my co-author, professor Nicolas Terry at Indiana University.

Q: How do racial, gender and economic inequalities among nursing home employees play into many facilities' failures in responding to COVID-19?

A: The vast majority of certified nursing assistants are women, who have an immigrant background, who are earning low wages, and cannot financially survive working only one job. They have to work two or three jobs, which all tend to be in long-term care. So, they become so-called "superspreaders" because they carry a higher risk of spreading the virus to the multiple facilities where they work. The estimates, which are very likely underreported, are at least 20% of them are working multiple jobs, and that potentially puts more and more people in this vulnerable group at risk.

I'm writing about the troubling reality superspreaders face with my co-author at Arizona Law, professor Shefali Milczarek-Desai, in a forthcoming paper, "The Return of Typhoid Mary: Immigrant Workers in Nursing Homes." Typhoid Mary was the name given to Mary Mallon, an Irish immigrant working as a cook at the turn of the 20th century for some of the wealthiest families in New York.

Mary, like most immigrants back then and today, had little choice but to labor in a frontline industry to earn a livelihood, where she was not provided paid sick leave and had limited access to health care. Another parallel between typhoid and COVID-19 is that not everyone who contracts the disease became ill and there were individuals described as "healthy carriers." Mary was one such individual; she felt healthy, so refused to cooperate with the health department. This refusal led to a series of forceful acts against Mary where she was hospitalized for testing, placed in quarantine for three years and only released on the condition that she could not be a cook. Mary broke that agreement, largely because she had limited options to earn a living, and was found to have unwittingly spread the disease, leading to the death of three people.

Our upcoming article talks about how we haven't really learned anything in the century since – it's still women immigrants who are being treated in a much more unjust way, arguably, than counterparts who are of a different gender or race. Typhoid Mary was quarantined, again, to a prison for 23 years until she died, but there were men who also had typhoid, who also hurt people, and they didn't have nearly the punishment that she received, and it was because they were breadwinners for their family, or other reasons the court gave. In this context of immigrant workers in long-term care, we are repeating the pattern of punitive disease control, where the focus is on the need for protection against individuals who threaten the public's health, rather than the conditions those workers find themselves forced to endure.

Q: You argue that the Centers for Medicare and Medicaid Services rating system for long-term care facilities has proven to be ineffective during the pandemic. How does that system work and why isn't it effective?

A: Most nursing homes receive funding from the Centers for Medicare and Medicaid Services, or CMS, because they have a certain number of patients who are on Medicaid. If that's the case, they have to go through an oversight inspection process that that agency oversees. And as part of that, there is a rating system of stars, where five stars means you're awesome and one star means you have serious issues that need to be immediately addressed. What was shocking about this is that the Kirkland nursing home, where the outbreak first happened in Washington state, had recently received five stars from CMS and then was tied to over 129 coronavirus infections and 40 deaths.

I noticed that there wasn't really a strong correlation between ratings and facilities' ability to control the pandemic. And one would think there would be more of a correlation there. That's where my chapter in this national report gets into how maybe this isn't the most effective rating system. If you're not able to identify who could be more at risk in controlling a major pandemic, then maybe we need to rethink how this is done or designed or implemented or enforced.

Q: Has the pandemic exposed a need to overhaul how we administer long-term care in the U.S.?

A: In response to the tens of thousands of arguably avoidable deaths in connection to nursing homes, there's been a growing "defund" movement, especially with what's been happening parallel to this with Black Lives Matter and police brutality with the "defund the police" argument. There is a similar case here – that we should defund a system that has already caused so much harm and suffering, even pre-COVID. This is  one of those "defund"-type arguments where the industry is so full of chronic problems – infection control, poor staffing, low-quality care – that people are angry and scared. Yet, government sources  continue to fund these institutions without effective regulations. We need to demand better and not perpetuate a poorly functioning system that may only get worse, especially if immunity from liability continues to be the primary goal, rather than providing quality patient care.

There are other models outside of nursing homes for later-in-life care, including one that is also government supported that I write about in my article "Preparing to Age in Place." The caution here is long-term care is still an under-resourced, understaffed area with limited oversight and whether we "defund," or incrementally reform, these are the larger issues.

Q: You provide more than a dozen recommendations for federal, state and local governments to take to address these issues. Which ones do you feel are the most urgent?

A: Yes, my chapter and others in this national report feature specific action strategies that we believe will yield successful results. In regards to long-term care, I propose the most pertinent issue during a pandemic and for pandemic preparedness is staffing. Specifically, low wages, lack of access to paid sick leave, and mandated staff-to-resident ratios. The low wages contribute to high turnover, and over 20% of long-term care workers working in multiple facilities, increasing the risk for them becoming so-called "superspreaders." These two factors alone can negatively impact emergency preparedness, infection control and prevention efforts, and training, plus unnecessarily introduce more people into a medically fragile environment. Paid sick leave would also help curtail the spread, and adequate staffing ratios are necessary for workers to take leave without risk of harm to residents.