As Officials Mull Stronger Nursing Home Enforcement, Restorative Justice Holds Key to True Reform

As the federal and state governments slowly start to flex their enforcement muscles on nursing homes in the wake of COVID-19, my mind keeps going back to a concept that’s traditionally been the domain of social scientists and prison-reform advocates: restorative justice.

Unlike our current crime-and-punishment system, which typically focuses on punitive measures such as jail time and fines, restorative justice seeks to change the entire framework around law and order by instead prioritizing the resolution of harm.

Under a restorative-justice model, victims and perpetrators come together with community members to discuss what happened, determine a strategy that will bring peace and closure to those harmed, and work to prevent the negative actions from happening again.

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“It is best accomplished through cooperative processes that allow all willing stakeholders to meet, although other approaches are available when that is impossible,” according to the Centre for Justice & Reconciliation. “This can lead to transformation of people, relationships, and communities.”

In addition to its applications in the criminal justice system, more progressive-minded schools have used restorative justice practices to help students work through conflicts and disciplinary issues without resorting to punitive measures such as suspensions and expulsions — with the goal of keeping a child’s education on track while still showing him or her the impact that individual actions can have on a whole community.

Keep in mind, restorative justice doesn’t mean that someone who committed a crime or made a deadly error gets off scot-free. Instead, he or she must actively work to earn that resolution, such as through a combination of community service, frank discussions with those harmed, and monetary compensation.

The way I think about it, this framework acknowledges the fact that even the strictest punishments won’t undo a bad act or accident. But if we all learn from that act, and the people involved actually put in work to regain their community’s trust, we can prevent future failures from occurring.

For those reasons, I believe that the regulatory changes in long-term care in the wake of COVID-19 must be based on restorative-justice principles.

The Centers for Medicare & Medicaid Services (CMS) last week took a decidedly non-restorative step when announcing stricter fines for infection-control violations — with escalators based on prior history of problems in that domain, climbing all the way up to $20,000.

Researchers who specialize in long-term care quality immediately saw flaws in this approach, arguing that such fines would do nothing to fix the immediate problems of testing and personal protective equipment (PPE) shortages — and instead perhaps lead to more harm by loading more financial burden onto a system already stretched to its absolute limits.

To be clear, these are not fiery nursing home industry partisans or lobbyists who want to give the industry a get-out-of-jail-free card; they’re researchers from Harvard and the University of Chicago who repeatedly emphasized to SNN’s Maggie Flynn that reform is necessary to prevent future outbreaks.

“We have all found that COVID-19 cases are largely a function of where the facility is located and not their prior quality,” David Grabowksi of Harvard told SNN. “This suggests COVID-19 in nursing homes is not limited to ‘bad apples,’ but rather a system problem requiring system solutions. CMS should focus on distributing testing and personal protective equipment to nursing homes. Increased fines to punish ‘bad apples’ are misguided right now.”

Grabowski, along with UChicago’s R. Tamara Konetzka, have produced early research indicating that quality history has less of a connection to COVID-19 outbreaks in nursing homes than factors such as race and facility size. A higher proportion of non-white residents correlates strongly with nursing home infection rates, just as it does with illness patterns among the general population.

“Nursing homes are often a reflection of the neighborhoods in which they are located,” Konetzka said in testimony before the Senate. “Consistent with the pandemic generally, nursing homes with traditionally underserved, non-white populations are bearing the worst outcomes.”

Such a systemic problem demands restorative answers. To start, once the peak of the crisis has ended and leaders can turn away from the emergency and toward the future, stakeholders from every corner of the industry must pledge to come together and have an open, honest, and ego-free dialogue about what went wrong.

That means the most outspoken critics of nursing home operators. That means long-term care ombudsmen. That means residents. That means executives, administrators, and ground-level workers at nursing home companies. That means organized labor leaders. That means state officials. That means federal officials. That means families of loved ones who died. That means families of loved ones who recovered. That means academics. That means epidemiologists. That means PPE suppliers and testing-device manufacturers.

That means everyone with any stake in the nursing home ecosystem.

The White House has announced a commission that will feature many of those players, but the work that must be done cannot fit into a single federal report.

We must foster ongoing conversations in every state and municipality about these systemic issues, and figure out: What does justice look like for the nursing home residents, workers, and families affected by COVID-19?

In my mind, it’s an honest acknowledgement of the issues that have plagued nursing homes for years: problems with infection control, low pay for staffers, aging physical plants, and chronic underfunding of Medicaid.

It’s an honest acknowledgement of how the government failed to adequately plan for a pandemic, both at the federal and state level, and how hospitals received the lion’s share of support both before and after the crisis hit.

It’s an honest acknowledgement that in the face of a world-historic crisis, many leaders simply forgot to prioritize long-term care facilities.

It’s an honest acknowledgement of the fact that long-term care never receives the proper attention from lawmakers and the general public until something has gone horribly wrong. Same for the even more overlooked connections between race, income, and access to quality health care of all kinds — we have routinely failed to address these issues, and too many innocent elders have paid the price.

These truths need to be spoken without blame or defensiveness on the part of any stakeholder. Then and only then can we discuss restorative plans of justice.

That might involve the removal of truly negligent owners from the industry, with monetary compensation to families and community service.

That might involve a mandate for watchdogs and operators to sit down together and draw up new rules on pandemic preparedness, which they can then submit to government officials for critique and approval.

That might involve a combination of mandatory and voluntary transparency for all nursing home owners and operators, both at the time of purchase and routinely thereafter.

That might involve a thoughtful and tailored overhaul of fines and inspection frequencies, with input and sign-off from all sides.

Importantly, these are just ideas. As a reporter and editor, I’m not close enough to the action to be a true part of this community. Ultimately, it should be up to the post-acute and long-term care stakeholders to decide how they define justice and restitution.

As we move into the reflection phase of this crisis, I’m growing increasingly alarmed by the way COVID-19 in nursing homes has turned into a partisan political football in a presidential election year.

Politicians will always use crises for their own gain; that’s inevitable, and also in some ways a foundational part of living in a democracy. The people elect leaders to perform specific duties, and if the people determine that they were derelict in those duties, they have the option to vote them out.

But we don’t have the option to vote out long-term and post-acute care services. Skilled nursing facilities, home health agencies, and other senior care providers represent vital resources that must always be there for our rapidly aging population.

Instead, we can and must discuss what the future of the industry should look like in an open, honest, and restorative way.

Maybe we need fewer institutional nursing homes and more support for home health care; maybe we need to completely abandon the current institutional model in favor of a new one; maybe this one can work with a few fundamental changes.

We won’t know the answers — and we won’t truly achieve real justice and closure for those who died during the COVID-19 crisis — until we all come together to ask the right questions.