By Nina A. Kohn, The Washington Post, May 8 2020
Nina A. Kohn, the David M. Levy professor of law at Syracuse University and a visiting professor at Yale Law School, studies the civil rights of older adults.
When the novel coronavirus first emerged, the U.S. response was slowed by the common impression that covid-19 mainly killed older people. Those who wanted to persuade politicians and the public to take the virus seriously needed to emphasize that “It isn’t only the elderly who are at risk from the coronavirus,” to cite the headline of a political analysis that ran in The Washington Post in March. The clear implication was that if an illness “merely” decimated older people, we might be able to live with it.
Of course, older adults are at heightened risk, even though covid-19 strikes younger people, too. But across America — and beyond — we are losing our elders not only because they are especially susceptible. They’re also dying because of a more entrenched epidemic: the devaluation of older lives. Ageism is evident in how we talk about victims from different generations, in the shameful conditions in many nursing homes and even — explicitly — in the formulas some states and health-care systems have developed for determining which desperately ill people get care if there’s a shortage of medical resources.
It’s become clear that nursing homes are particularly deadly incubators: Fifteen states reported (as of Friday) that more than half of their covid-19 fatalities were associated with long-term-care facilities. Meanwhile, the World Health Organization says that as many as 50 percent of all deaths in Europe have occurred in such places. Hans Kluge, the WHO’s top official for Europe, called this “an unimaginable human tragedy.”
Yet this is not an inevitable tragedy. Policymakers and health-care providers have long accepted the preventable suffering of older adults in long-term-care institutions. The U.S. Department of Health and Human Services found that about 20 percent of Medicare beneficiaries in skilled nursing facilities suffer avoidable harm. And for decades, government data has shown that nursing homes can be infection tinderboxes: Almost two-thirds of the approximately 15,600 nursing homes in the United States have been cited for violating rules on preventing infections since 2017, according to a Kaiser Health News analysis of state inspection results.
In few areas is the disconnect between law and practice so striking as in nursing homes. Enforcement seldom amounts to more than a slap on the wrist. When inspectors find that a facility has violated regulations designed to protect residents, states rarely impose a fine. The home is simply directed to correct the situation, and states often don’t confirm that the corrections have been made. The rare fines are usually small and toothless. The average nursing home fine dropped from $41,260 in 2016, President Barack Obama’s last year in office, to $28,405 in 2019 — after the industry pushed for a change in the way penalties are calculated — according to Kaiser Health News. Fines on that scale are “not changing behavior in the way that we want,” Ashish Jha, the incoming dean of the Brown University School of Public Health, told Kaiser. Moreover, experts widely agree that, simply to avoid neglect, nursing homes must provide slightly more than four hours of nursing staff time per resident per day, yet most provide less.
Given today’s emergency situation, regulators should be intervening to save lives in nursing homes. They could funnel protective equipment to them, ensure that staffing levels are sufficient and prohibit staff from working in more than one long-term-care facility — an obvious vector for infection that health officials in other countries have cut off. (One study found that roughly 17 percent of long-term-care workers held a second job.)
But that’s not what is happening. To the contrary, some states, including New York and New Jersey, have responded to concerns about overcrowded hospitals by mandating that already besieged nursing homes accept covid-19-positive patients — both new and returning residents. The Centers for Medicaid and Medicare Services, the federal agency responsible for overseeing nursing homes, has waived training requirements for caregivers and indefinitely suspended most nursing home inspections. Waivers designed to cut red tape to swiftly protect residents would be one thing, but these moves instead leave residents at the largely unsupervised mercy of overwhelmed institutions.
It’s hard to see the lack of protection for nursing home patients — both before and during the coronavirus crisis — as anything except evidence that older people’s lives are deemed less worthy than those of younger people. In comparison, child-care centers that violate state regulations designed to protect children commonly have their licenses revoked and their facilities closed. (A report by federal inspectors released Thursday found that a nursing home in Andover, N.J., where more than 50 residents have died, had placed residents in “immediate jeopardy.” It forced healthy residents to share rooms with people who had covid-19 symptoms and used nonfunctioning thermometers to check staff. The home had a history of serious health violations but had been fined a mere $21,578 over three years.)
Ageism is most explicit in official policies governing whose lives should be saved if equipment or medical staff become scarce during the pandemic. While even New York City seems to have (for now) escaped the brutal triaging questions that doctors in Italy faced — who gets the lone remaining ventilator? — states and health-care systems have plans for such situations. All prioritize patients who are likely to benefit from treatment over those who are unlikely to benefit, but many also rate them based on age — with younger patients getting the nod. Louisiana, for example, has long advised hospitals to employ a triage system for disasters that deprioritizes anyone age 65 or older. In April, Pennsylvania issued interim guidance that directs hospitals to rank patients based on broad “life stages”: age 12 to 40, age 41 to 60, age 61 to 75, older than 75.
If these policies were really about saving the most years of life, they would take into account other characteristics that predict mortality, such as gender, socioeconomic status or race. But they don’t, because society has rightly concluded, in those cases, that making life-or-death decisions based on identities people can’t really control is invidious. So we are left with sweeping judgments that unjustifiably group 61-year-olds with 75-year-olds (any of whom may have decades of life left).
A few advocacy groups have pointed out that such schemes appear to be illegal under the Age Discrimination Act of 1975. Justice in Aging has warned Massachusetts’s governor, for instance, that “bias against older adults in the provision of health care violates federal law.” But these groups tend to be less robustly activist than, for example, disability-rights organizations that protest policies that ration care based on “quality of life.” And complaints about age-based rationing get shrugged off.
Age-based triaging is also often justified not just by the raw number of years saved — in theory — but by the concept that people should get the chance to experience as many of life’s meaningful stages as possible. But neither the state nor health-care providers have the moral authority to decide who has led a “full” life and who hasn’t.
Talk of age-based rationing also subtly reinforces the idea that shortages of equipment and other resources are inevitable, and that older people will “make way” for more deserving patients. In the absence of vocal objection, this reduces pressure on policymakers to pull out all the stops to provide such resources.
Inequalities rooted in ageism have caused the coronavirus to spread, and many policy responses take for granted that older lives are worth less than younger ones. These moral blind spots compromise the fight against the pandemic and diminish us all.