Do Regulators Actually Ever Shut Down a Nursing Home?

The story about the Covid 19 ridden nursing home in Orinda just gets worse and worse.  Turns out that facility, along with several other facilities under the same ownership, have a history of staffing, sanitation, and safety violations.  It ain't pretty.  Yet, even the owner-operator's fraudulent acquisition of her operator's license (purportedly by transcript fraud) was enough to get anyone's attention.  All of this was apparently not even bad enough to get them listed on this February, 2020 "Special Focus Facility Program" list put out by CMS.  

That's because we tuck people away in nursing homes and tend to operate on what could kindly be described as an out of sight – out of mind theory of quality control. It is, after all, seen as excessively burdensome to emphasize infection control in such group settings.  But, now that we know that Covid 19 contagion rampant there could threaten us all, we are, to put it gently, mightily concerned.  


Who’d of Thunk It?

Mr. Trump had no explanation for why his White House shut down the Directorate for Global Health Security and Biodefense established at the National Security Council in 2016 by President Barack Obama after the 2014 Ebola outbreak, stammering to suggest the coronavirus had been a surprise.

“Well, I just don’t think — I just don’t think that somebody is going to — without seeing something, like we saw something happening in China,” Mr. Trump said. 

Maybe we should just start with, who is thinking — at all? Let's start there.

What Do We Mean When We Talk About “Fault” in Relation to the Corona Virus?

“They would like to have the people come off,” he said. “I would like to have the people stay. I told them to make the final decision. I would rather — because I like the numbers being where they are. I don’t need to have the numbers double because of one ship that wasn’t our fault. And it wasn’t the fault of the people on the ship either. OK? It wasn’t their fault, either. And they are mostly Americans.”

Americans, including our President, are so focused on individual responsibility for health outcomes of any kind, that we can't help but reach for "fault" talk even when discussing an epidemic or pandemic.

Missouri’s Contraceptive Coverage Exemption Statute, the ACA’s Women’s Health Amendment, Federal Preemption, and the Race to the Finish LIne

In August of this year, the Missouri legislature amended the state health insurance statute and  added language requiring that "[a]ny health carrier shall offer and issue to any person or entity purchasing a health benefit plan, a health benefit plan that excludes coverage for contraceptives if the use or provision of such contraceptives is contrary to the moral, ethical, or religious beliefs or tenets of such person or entity." You can see how it will work here:

In October of this year, the Missouri Department of Insurance (DOI) issued an interpretive bulletin advising an effective date of October 12, 2012 and, in short order, has taken enforcement actions against Missouri insurers (health insurance companies doing business in Missouri) for their deference to the ACA's preventive services coverage provision, found at 42 U.S.C. section 300gg-13(a), further developed under the HRSA/HHS guidelines of February 15, 2012.  There, all FDA approved contraceptive methods, are included in the definition of preventive services necessary to women's health. Last week, Fed. Dist. Ct. Judge Audrey Fleissig enjoined further MO
DOI enforcement actions against the member entities of the Missouri
Insurance Coalition caught between the competing mandates. As the
Missouri Insurance Coalition case wends its way toward a decision on the
merits, it does so in the shadow of numerous filed cases pressing the
preemption point.  Does the federal law, as a Constitutional matter, preempt the state statute?

Much ink has also been spilled discussing the exemptions in these rules for religiously affiliated employers. But what about religiously motivated employers — secular (as in non-formally religiously affiliated entities) entities whose owners, operators, and employees see the their religious  vocation in secular life? Those cases are out there as well, most strikingly in an opinion from the E. Dist. of Missouri in O'Brien v. HHS.  There, federal district court Judge Carol Jackson grappled with some important questions. Can a corporation engage in the free exercise of religion?  Is a requirement of indirect financial support of a practice, from which a plaintiff may abstain according to their own religious principles, be considered a substantial burden on plaintiff's religious exercise?  At the end of the day, the court held that a "neutral and perfectly constitutional law may have a disproportionate impact upon religiously inspired behavior" and dismissed the complaint.  Then, the Eighth Circuit granted a motion for a restraining order on ACA implementation until full review could be made of this lower court decision.

As interesting and illuminating as all of this, none of this tells us where this is all likely to end up, though the under-discussion of federal preemption in local press reports gives me pause. This is a teachable moment for the press to educate Missouri's citizenry about federalism, preemption, the United States Constitution, as well as our court system. I do not know what to make of what I'll call the "horse race" theory of judicial opinion reading –interpretation where all the focus is on who passes the finish line first.  As grappling with these thorny issues is much more likely to be a marathon than a sprint, each breathless reporting of another "decision", discussed only in isolation,  misses the mark.

In Constitutional law, it is not so much where you start as where you finish that matters.