Solomon Center Article Impacts Nursing Home Reform Efforts

The COVID-19 pandemic brought to light the pressing need for nursing home reform. But as the media and the public have turned their attention elsewhere, and nursing home owners and operators continue to oppose new regulations, real change has failed to materialize, according to the authors of a recent paper. In 2023, Distinguished Scholar in Elder Law Nina Kohn and three Solomon Center student fellows published an article in the William and Mary Law Review proposing a path forward: using existing statutory and regulatory authority to incentivize better nursing home care. Less than a year later, the article has already had a wide-ranging impact. 

In “Using What We Have: How Existing Legal Authorities Can Help Fix America’s Nursing Home Crisis,” the authors examined four existing opportunities — federal certification, financial penalty schemes, state licensure, and federal mortgage insurance — that could be leveraged to address systemic quality-of-care failures. 

In addition to Kohn, who is also the David M. Levy Professor of Law at Syracuse University College of Law, the authors are Yale Law School alumni Adrianna Duggan ’24, Justin Cole ’23, and Nada Aljassar ’24.

The article’s proposals have made it to Capitol Hill and caught the attention of advocates for older adults, including the Center for Medicare Advocacy. In August 2024, the Center cited the article extensively in a special report on federal certification of nursing facilities. 

Publicly available data from the federal government, the Center reported, shows that nursing facilities operated by a large company are more likely to have poor care, high levels of abuse, and high civil penalties. For-profit entities that own multiple nursing homes can use corporate law to create shell companies, allowing them to hide historical records of poor performance when they apply for state licensure of new nursing facilities. Historically, the federal government has certified nearly all new facilities that have a state license. 

Quoting Kohn and the student fellows, the Center called for the federal government to “use the certification process to steer public funds away from nursing homes owned or operated by entities with a history of abuse and neglect,” as “the Secretary [of Health and Human Services] has existing statutory authority to deny certification to facilities that are governed or managed by entities that have shown they are unlikely to administer them in a way that will provide residents with the required quality of care.” 

State-level impact

The article’s proposals have also made it to the states. In September 2024, journalist Matthew Miller published an investigation into Michigan’s nursing home licensure based on the article. Michigan has only revoked a handful of licenses since 2007, even though the state has some of the worst facilities in the country. 

According to some state officials Miller interviewed, the decrease in revocations reflects an intentional move away from penalties for under-performing nursing homes. Instead, the state’s oversight agency tries to work with offending facilities on compliance — with license revocation as a last resort. Other officials and some advocates questioned whether the policy change was more related to closer ties between the state and for-profit nursing home lobbyists.

Miller reported that some facilities, despite repeated interactions with Michigan regulators, have not improved. Mission Point Healthcare Services recently shut down a nursing home with a decades-long history of violations that was in the federal government’s Special Focus Facility program for the worst nursing facilities in the country. But the company operates five other facilities in Michigan that are in, or candidates for, the Special Focus Program. Miller pointed out that “the states’ power to license nursing homes could be one effective and flexible tool to get the worst companies out of the business,” citing Kohn. 

Kohn also discussed the article in a webinar for the Long-Term Community Care Coalition attended by nearly 300 people, including state and federal regulators well-positioned to continue to engage with the article’s proposals.