Abstract

Excerpted From: Mary Crossley, The Layered Harms of Nursing Home Segregation, 18 Saint Louis University Journal of Health Law & Policy 275 (2025) (185 Footnotes) (Full Document)

Tragedies abounded during the COVID-19 pandemic's first year. One of the most horrifying stories involved the toll that illness and death took in nursing homes in the United States. According to COVID Tracking Project data through March 2021, nearly one in every ten residents of nursing homes had died from COVID. Presented another way, the Project's collected data showed that “despite making up less than 1% of the nation's population, people living in nursing homes and other long-term-care facilities account[ed] for at least 35% of the nation's COVID-19 deaths.” Experts explaining these staggering mortality rates pointed to distinctive features of nursing homes: Their typical residents are fragile elderly people who “live in close quarters and often share bedrooms, bathrooms, and dining areas” and who are often cared for by “undertrained and poorly paid” staff, many of whom work at more than one facility to make ends meet. In short, persons whose age and health conditions left them highly susceptible to suffering severe illness and death were living in a veritable Petri dish of viral transmission. Collectively, our society had badly failed the aged and disabled persons who lived in nursing homes.

This sentiment -- that we are failing persons who are frail, aged, or simply disabled -- is not new. In 2010, Princeton philosopher Kwame Anthony Appiah pondered what current, widely established societal practices would lead future generations to question our willingness to tolerate such immoral practices. Lamenting that “[n]early 2 million of America's elderly are warehoused in nursing homes, out of sight and, to some extent, out of mind,” Appiah identified “the institutionalized and isolated elderly” as one practice likely to receive moral condemnation by future generations. The problem pre-dates the twenty-first century. In 1974, in Tender Loving Greed, Mary Adelaide Mendelson drew on her ten years consulting on nursing homes for a consortium of social service agencies to indict the nursing home industry for exploiting and isolating older adults and defrauding the American people.

Nursing home segregation is one aspect of how we fail the fragile older and disabled persons who often have no choice but to reside in these institutions so they can receive needed supports and services. This Essay examines segregation as a phenomenon that separates one group of people from others and shields from view those who have been separated. In this sense, I echo Appiah's consternation over the isolation of nursing home residents.

The Essay proceeds as follows: First, it considers the forms of segregation presented by nursing homes. Racial disparities in COVID-19-associated morbidity and mortality among nursing home residents highlighted persistent racial segregation in the industry. In addition, nursing homes function to segregate elderly and disabled people from the general population. The Essay then considers several harms associated directly or indirectly with these types of segregation. First, it presents research suggesting that racial segregation of nursing homes is associated with racial and ethnic minorities receiving a lower quality of care and experiencing worse outcomes. It then explores other harms associated with segregation, namely those connected with how segregation obscures or shields from view troubling practices. Commentators have attributed widespread abuse and neglect of nursing home residents in part to their isolation. As Appiah put it, “out of sight and ... out of mind.” In a different but related vein, the recent growth of private equity ownership of nursing homes has largely obscured from public view business and financial practices that elevate profit extraction over resident welfare. The Essay concludes by briefly noting three types of potential responses to the layered harms of segregation found in today's nursing home industry.

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To be sure, arguments against an abolitionist approach to nursing homes exist. In particular, the deinstitutionalization of mental health patients offers a cautionary tale, as Lawrence recognizes. From a health justice perspective, the abolition of nursing homes runs the risk that resources currently devoted to providing nursing home care would not be redirected to providing services in more integrated and dignity-preserving settings, leaving those who need those services worse off. But simply contemplating the possibility of nursing home abolition might challenge scholars and reformers to reimagine how much-needed services might be provided in a world without nursing homes.

In the end, adopting a segregation lens permits us to discern a common thread woven through many of the harms associated with the American nursing home industry. Harms that include racial health disparities, isolation and loss of autonomy, resident mistreatment, and subordination of human flourishing to profit extraction are all connected to ways that the industry segregates residents or shields from view its operations and business arrangements. Recognizing that point may be the first step in taking bold steps towards integration and transparency.

John E. Murray Faculty Scholar and Professor of Law, University of Pittsburgh School of Law.