¹ Press Release, Ctrs. for Medicare & Medicaid Servs., Trump Administration Has Issued More Than $15 Million in Fines to Nursing Homes During COVID-19 Pandemic (Aug. 14, 2020), https://www.cms.gov/newsroom/press-releases/trump-administration-has-issued-more-15-million-fines-nursing-homes-during-covid-19-pandemic [https://perma.cc/7MER-CNQ4] (reporting that 3,400 Long Term CareLTC facilities received COVID-related fines with 180 facilities over 22 states found to have put patients in immediate jeopardy. “Immediate jeopardy represents a situation in which a nursing home’s noncompliance with CMS requirements of participation has caused or is likely to cause serious injury, serious harm, serious impairment, or death to a resident.”); Tara Sklar, Implementation and Enforcement of Quality and Safety in Long-Term Care, in Assessing Legal Responses to COVID-19 (Scott Burris, Sarah de Guia, Lance Gable, Donna Levin, Wendy E. Parmet, & Nicolas P. Terry eds., 2020) 143, 143-44 (examining the historical issues with quality of care in Long Term Care facilities); see also Charles Duhigg, At Many Homes, More Profit and Less Nursing, N.Y. Times (Sept. 23, 2007), https://www.nytimes.com/2007/09/23/business/23nursing.html [https://perma.cc/TG4K-PG84] (describing poor facilities and resident health outcomes in longer term care facilities acquired by private investors from 2000 to 2006).

² Priya Chidambaram, Rachel Garfield, and Tricia Neuman, COVID-19 Has Claimed the Lives of 100,000 Long-Term Care Residents and Staff, Kaiser Fam. Found. (Nov. 25, 2020), https://www.kff.org/policy-watch/covid-19-has-claimed-the-lives-of-100000-long-term-care-residents-and-staff/ [https://perma.cc/32DU-G9DY]; see also Priya Chidambaram & Rachel Garfield, Despite Efforts to Slow the Spread of the Virus in Long-Term Care Facilities, KFF Analysis Finds Many States Experienced the Worst COVID-19 Outbreaks and Highest Number of Deaths in December, Kaiser Fam. Found. (Jan. 14, 2021), https://www.kff.org/coronavirus-covid-19/press-release/despite-efforts-to-slow-the-spread-of-the-virus-in-long-term-care-facilities-kff-analysis-finds-many-states-experienced-the-worst-covid-19-outbreaks-and-highest-number-of-deaths-in-december/ [https://perma.cc/2YFM-QBU9] (“The new analysis finds that many states reported their highest average weekly number of new coronavirus cases in long-term care facilities in November or December 2020.”)/.

³ Long-Term-Care COVID Tracker, The COVID Tracking Project, https://covidtracking.com/nursing-homes-long-term-care-facilities [perma.cc/4RNN-8WSA] (last updated Mar. 7, 2021); id. at Week-by-Week Summary Totals, https://covidtracking.com/nursing-homes-long-term-care-facilities/history [perma.cc/HYT4-54H9]; see also Anna Wilde Mathews, Covid-19 Delivers Financial Blow to Nursing Homes, Wall St. J. (Nov. 9, 2020, 5:24 PM), https://www.wsj.com/articles/covid-19-delivers-financial-blow-to-nursing-homes-11604949454 [https://perma.cc/NDV5-FBQC] (reporting that deaths in Long Term Care facilities had accounted for over forty percent of all COVID deaths since the onset of the pandemic).

⁴ Robert Tyler Braun et al., Comparative Performance of Private Equity-Owned US Nursing Homes During the COVID-19 Pandemic, 3 JAMA Network Open, Oct. 28, 2020, at 1, 7 (reporting that there were no differences between private equity owned facilities and other facilities in terms of how staff and residents have fared during the pandemic); Ams. for Fin. Reform Educ. Fund, The Deadly Combination of Private Equity and Nursing Homes During a Pandemic 13 (Aug. 2020), https://ourfinancialsecurity.org/wp-content/uploads/2020/08/AFREF-NJ-Private-Equity-Nursing-Homes-Covid.pdf [https://perma.cc/XFK9-G2FP].

⁵ Alicia McElhaney, Private Equity-Backed Nursing Homes Are Bad for Patients, Research Shows, Inst. Inv. (Mar. 11, 2020), https://www.institutionalinvestor.com/article/b1kq79bp4nv79t/Private-Equity-Backed-Nursing-Homes-Are-Bad-for-Patients-Research-Shows [https://perma.cc/344Y-X9M5] (finding reductions in patient health and compliance in long term care homes acquired by private investors since 2004).; Danielle Brown, Lawmakers Pepper Private Equity Firms on Nursing Home Investments, Quality Issues, McKnights Long-Term Care News (Nov. 19, 2019), https://www.mcknights.com/news/lawmakers-pepper-private-equity-firms-on-nursing-home-investments-quality-issues/ [https://perma.cc/6SWE-CRT3].

⁶ Nathan M. Stall et al., For-Profit Long-Term Care Homes and the Risk of COVID-19 Outbreaks and Resident Deaths, 192 Can. Med. Ass’n J. E946, E949-50 (Aug. 17, 2020). See also Margaret J. McGregor & Charlene Harrington, COVID-19 and Long-Term Care Facilities: Does Ownership Matter?, 192 Can. Med. Ass’n J. E961, E961 (Aug. 17, 2020) (finding that for-profit status of long-term care homes did not significantly increase COVID-19 incidence when factoring for multi-bed room design).

⁷ McGregor & Harrington, supra note 6, at E961.

⁸ See., e.g., Shuo Chen, Caring for Mom: Establishing Statutory Rights for Elder Care Facilities, 46 Am. J.L. & Med. 111, 1271-132 (2020) (defining “assisted living facility” and “skilled nursing home” to establish framework for standardized zoning laws for elder care facilities); see also Ronald J. Pawelski, Mass Ass’n of Residential Care Homes, Rest Homes: Their Value on the Massachusetts Healthcare Continuum 10 (2020), https://www.mass.gov/doc/january-10-2020-handout-rest-homes-their-value-on-the-health-care-continuum/download [https://perma.cc/43YX-LA94] (describing nursing facilities’ “extensive range of services” that are distinguishable from other types of care, such as “rest homes”)

⁹ See e.g., Greg Shulas, Private Equity Poised to Reshape Home Health Care Industry? HomeCare (Oct. 31, 2018), https://www.homecaremag.com/home-health/private-equity-poised-reshape-home-health-care-industry [https://perma.cc/P9A8-UE3W]; see also Charlene Harrington et al., Marketization in Long-Term Care: A Cross-Country Comparison of Large For-Profit Nursing Home Chains, 10 Health Servs. Insights, Jan.–Dec. 2017 at 1, 18 (From 2005 to 2015, the five largest for-profit nursing home chains in the United States both increased their beds and diversified into assisted living, rehabilitation, home health, and dialysis).

¹⁰ See e.g., Alesha T. (Istvan) Ignatius Brereton, The U.S. Food Manufacturing Industry and the Environmental Hazards of Toxic Emissions to Socially Vulnerable Populations 22 (Dec. 9, 2017) (Ph.D. dissertation, Texas A&M University) (OAKTrust). See also, Harland Prechel & Theresa Morris, The Effects of Organizational and Political Embeddedness on Financial Malfeasance in the Largest U.S. Corporations: Dependence, Incentives, and Opportunities, 75 Am. Socio. Rev. 331, 332 (2010) (describing Organizational-Political Embeddedness Theory); Theresa Morris, Cut It Out: The C-Section Epidemic in America 48 (2013) (in response to “economic, political, and legal” environmental factors, hospitals are more likely to change their organizational behavior and perform more c-sections than clinically required to avoid the threat of liability and protect organizational interests).

¹¹ Prechel & Morris, supra note 10, at 351.

¹² See, e.g., id.; Ignatius Brereton, supra note 10; Morris, supra note 10.

¹³ Graham D. Rowles & Pamela B. Teaster, The Long-Term Care Continuum in an Aging Society, in Long-Term Care in an Aging Society: Theory and Practice 3, 9 (Graham D. Rowles & Pamela B. Teaster eds., 2015) (citing Rosalie A. Kane et al., Long Term Care: Principles, Programs, and Policies 4 (1987)).

¹⁴ Rowles & Teaster, supra note 13, at 14.

¹⁵ See Prolonging Life at All Costs: Quantity Versus Quality, 4 Lancet Respiratory Med.165 (2016) (discussing the clinical, emotional, and economic consequences of life-prolonging treatments in intensive care units).

¹⁶ Louis Block & Halbert L. Dunn, Bureau of the Census, Vital Statistics – Special Report, Hospital and Other Institutional Facilities and Services 1939, at 547, 568 (13th vol. 1942); Lauren Harris-Kojetin et al., National Center for Health Statistics, Long-term Care Providers and Services Users in the United States, 2015–2016, at 73 (13th series, 2019).

¹⁷ Edem Hado & Harriet Komisar, AARP Pub. Pol’y Inst., Long-Term Services and Supports 1 (Aug. 2019), https://www.aarp.org/content/dam/aarp/ppi/2019/08/long-term-services-and-supports.doi.10.26419-2Fppi.00079.001.pdf [https://perma.cc/3THM-EBC4].

¹⁸ Tara O’Neill Hayes & Sara Kurtovic, The Ballooning Costs of Long-Term Care, Am. Action F. (Feb. 18, 2020), https://www.americanactionforum.org/research/the-ballooning-costs-of-longterm-care/ [https://perma.cc/G3V7-N5RS].

¹⁹ Carole Haber, History of Long-Term Care in Long Term Care in an Aging Society: Theory and Practice, supra note 13, at 36.

²⁰ See id. at 37.

²¹ Id. at 38.

²² See The History of Nursing Homes, Found. Aiding the Elderly, https://www.4fate.org/history.pdf [https://perma.cc/9A5T-UF7F] (last visited Oct. 17, 2021); see also Haber, supra note 19, at 38 (“First founded in Boston in 1664, the almshouse became a well-known and easily recognized institution in scores of cities throughout the 18th century”).

²³ Haber, supra note 19, at 39. Almshouses were organized in such a way as to keep people from applying for residence and, if individuals were accepted, to keep them from staying for services unless it was their last option)

²⁴ See id. at 41 (describing how the “medical function … came to dominate” the character of the almshouse); Sidney D. Watson, From Almshouses to Nursing Homes and Community Care: Lessons from Medicaid’s History, 26 Georgia St. Univ. L. Rev. 937, 941 (2010).

²⁵ The History of Nursing Homes, supra note 23; see also Haber, supra note 19, at 42 (describing how the Second Great Awakening led religious groups to establish alternative institutions where residents could be reformed or cured).

²⁶ History of Nursing Homes, supra note 22.

²⁷ Watson supra note 24, at 941.

²⁸ Id.

²⁹ See Social Security Act of 1935, Pub. L. No. 74-271, 49 Stat. 620, 620-25 [hereinafter SSA].

³⁰ Franklin D. Roosevelt, Presidential Statement on Signing the Social Security Act (Aug. 14, 1935), https://www.ssa.gov/history/fdrstmts.html#signing [https://perma.cc/C2SU-BNVT].

³¹ SSA § 3(a)(1), 49 Stat. at 621.

³² Id.

³³ See Helvering v. Davis, No. 910, 1937 U.S. LEXIS 1200, at *43–45 (May 24, 1937). “The Court reasoned that with many people growing old and dependent, the Act was a protection and the only way for it to succeed was for Congress to exercise a power that was national so that it could serve the interests of all.” Id. at *1. Justice Cardozo writes “the hope behind this statute is to save men and women from the rigors of the poorhouse as well as from the haunting fear that such a lot awaits them when journey’s end is near.” Id. at *38.

³⁴ See Jessica Dornin, Jamie Ferguson-Rome & Nicholas G. Castle, Nursing Facilities, in Long-Term Care in an Aging Society: Theory and Practice supra note 13, at 297 (though the stipulation intended to discourage use of overburdened public nursing homes, what followed was an increase in the number of private care homes).

³⁵ Id.

³⁶ Wilbur J. Cohen & Robert J. Myers, Social Security Act Amendments of 1950: A Summary and Legislative History, 13 Soc. Sec. Bull., (Soc. Sec. Admin.), Oct. 1950, at 3, 5, https://www.ssa.gov/policy/docs/ssb/v13n10/v13n10p3.pdf [https://perma.cc/N437-M9R8]; see also Haber, supra note 20, at 52.

³⁷ Inst. of Med. (U.S.) Comm. on Nursing Home Regul., Improving the Quality of Care in Nursing Homes 238 (1986) [hereinafter Improving Quality of Care].

³⁸ V.M. Hoge, The Hospital Survey and Construction Act, Soc. Sec. Bull. (Soc. Sec. Admin.), Oct. 1946, at 15, 17, https://www.ssa.gov/policy/docs/ssb/v9n10/v9n10p15.pdf [https://perma.cc/N75H-QABU]; John Henning Schumann, A Bygone Era: When Bipartisanship Led to Health Care Transformation, NPR (Oct. 2, 2016, 6:00 AM), https://www.npr.org/sections/health-shots/2016/10/02/495775518/a-bygone-era-when-bipartisanship-led-to-health-care-transformation [https://perma.cc/4MN8-8ZC7]; see also Haber, supra note 19, at 53.

³⁹ Hoge, supra note 38, at 15-16.

⁴⁰ Improving Quality of Care, supra note 37, at 239.

⁴¹ Id.; see also Haber, supra note 19, at 53.

⁴² Improving Quality of Care, supra note 37, at 240.

⁴³ Id.

⁴⁴ Kaiser Fam. Found., Long Term Care in the United States: A Timeline 1 (2015), https://www.kff.org/wp-content/uploads/2015/08/8773-long-term-care-in-the-united-states-a-timeline1.pdf [https://perma.cc/8LND-FG9V]; see e.g., Soc. Sec. Admin., Medicare is Signed into Law, Soc. Sec. Hist., https://www.ssa.gov/history/lbjsm.html [https://perma.cc/J2P9-8KYC] (last visited Oct. 23, 2021).

⁴⁵ Soc. Sec. Admin., Medicare & Other Changes, in Historical Background and Development of Social Security, Soc. Sec. Hist., (quoting President Johnson regarding Medicare, (Jan. 7, 1965)), https://www.ssa.gov/history/briefhistory3.html [https://perma.cc/YB2C-CJCT] (last visited Oct. 23, 2021).

⁴⁶ Social Security Amendments of 1965, Pub. L. No. 89-97, 79 Stat. 286, 291-92, 317.

⁴⁷ Improving Quality of Care, supra note 37, at 239.

⁴⁸ Matthew Gritter, The Kerr-Mills Act and the Puzzles of Health Care Reform, 100 Soc. Sci. Q. 2209, 2220-2221 (2019); Improving Quality of Care, supra note 37, at 194.; see also Haber, supra note 19 at 54 (“Because of [Kerr-Mills], in the years between 1960 and 1975, the number of nursing homes grew from 9,582 to 23,000, whereas the number of patients ballooned from 290,000 to over 1,000,000.”).

⁴⁹ Nicole Huberfeld, Federalism in Health Care Reform, in Holes in the Safety Net: Federalism and Poverty 197, 203-204 (2019).

⁵⁰ Kaiser Fam. Found., supra note 44, at 1.

⁵¹ Id. at 2; Improving Quality of Care, supra note 37, at 242.

⁵² Kaiser Fam. Found., supra note 44.

⁵³ Dornin et al., supra note 34, at 297-98; see Nicholas G. Castle et al., Humanism in Nursing Homes: The Impact of Top Management, 31 J. Health Hum. Serv. Admin. 4, 483-508 (2009).

⁵⁴ See Haber, supra note 19, at 54-6.

⁵⁵ Martin Klauber & Bernadette Wright, The 1987 Nursing Home Reform Act, AARP Public Policy Institute (Feb. 2001), https://www.aarp.org/home-garden/livable-communities/info-2001/the_1987_nursing_home_reform_act.html.

⁵⁶ Haber, supra note 19, at 56.

⁵⁷ Klauber & Wright, supra note 55.

⁵⁸ Requirements for, and assuring quality of care in, skilled nursing facilities, 42 U.S.C. § 1395i–3(b)(7); See also, Klauber & Wright, supra note 55.

⁵⁹ Klauber & Wright, supra note 55.

⁶⁰ Charlene Harrington, Joshua M. Wiener, Leslie Ross, & MaryBeth Musumeci, Key Issues in Long-Term Services and Supports Quality (Oct. 27, 2017), https://www.kff.org/medicaid/issue-brief/key-issues-in-long-term-services-and-supports-quality/.

⁶¹ Kaiser Fam. Found., supra note 44.

⁶² Catherine Hawes et al., Nursing Homes and the Affordable Care Act: A Cease Fire in the Ongoing Struggle Over Quality Reform, 24 J. Aging & Soc. Pol’y 2, 206-220 (2012); See also, Edward Alan Miller, The Affordable Care Act and Long Term Care: Comprehensive Reform or Just Tinkering Around the Edges, 24 J. of Aging & Soc. Pol’y 2, 101-117 (2012).

⁶³ Hawes, supra note 62 , at 214.

⁶⁴ Id. at 215.

⁶⁵ Lindsay Wiley, Health Care Federalism and Next Steps in Health Reform, Digital Commons @ Am. Univ. Wash. Coll. L. (2018); See also Abbe R. Gluck & Nicole Huberfeld, What is Federalism in Healthcare for, 70 Stan. L. Rev. 1689, 1726-1728 (2018) (discussing the failed attempt of the ACA to nationalize Medicaid and its implications for continued enforcement variability by state).

⁶⁶ Adrienne Jones, The National Nursing Home Survey: 1999 Summary, 1 VITAL AND HEALTH STAT. 2, 3 (2002), https://perma.cc/T28M-Z7AG.

⁶⁷ T.J. Fairchild & J.A. Knebl, Nursing Homes, in 3 ENCYCLOPEDIA OF AGING 999, 999-1002 (D.J. Ekrderdt ed., 2002).

⁶⁸ Brendan Williams, Failure to Thrive? Long Term Care’s Tenuous Long Term Future, 43 SETON HALL LEGIS. J. 285, 293 (2019).

⁶⁹ See, e.g., Mass. Gen. L. Ch. 111 § 71 (Licensing of nursing and convalescent homes, infirmaries, etc.); 105 Code Mass. Reg. 150.00 (Standards for long-term care facilities); 105 Code Mass. Reg. 153.00 (Licensure procedure and suitability requirements for long-term care facilities).

⁷⁰ Williams, supra note 68, at 295.

⁷¹ David C. Grabowski & David G. Stevenson, Ownership Conversions and Nursing Home Performance, 43 HEALTH SERV. RSCH. 1184, 1186 (2008); see also Dornin et al., supra note 35, at 301.

⁷² Dornin et al., supra note 34, at 299.

⁷³ Grabowski & Stevenson, supra note 71, at 1200.

⁷⁴ Id.

⁷⁵ Ctr. for Medicare & Medicaid Serv., Nursing Home Data Compendium 1 (2015 ed.).

⁷⁶ Kaiser Family Foundation, Overview of Nursing facility capacity, financing, and ownership in the United States in 2011 (April 2018) (finding that over the 2009 through 2016 period, more than half of facilities were owned or leased by multi-facility organizations.); see also Dornin et al., supra note 35, at 299.

⁷⁷ Hawes, supra note 62, at 206-220; Klauber & Wright, supra note 55; see also, Dornin et al., supra note 34, at 300-301.

⁷⁸ Dornin et al., supra note 45, at 301.

⁷⁹ Eric Collier & Charlene Harrington, Staffing Characteristics, Turnover Rates and Quality of Resident Care in Nursing Facilities, 1 Rsch. Gerontological Nursing 3, at 161 (2008).; see also Dornin et al., supra note 34, at 302.

⁸⁰ Williams, supra note 68, at 302 (citing Brendan Williams, NH Needs to Invest in Care for Seniors, PORTSMOUTH HERALD (July 11, 2018), https://www.seacoastonline.com/news/20180711/nh-needs-to-invest-in-care-for-seniors (discussing a Massachusetts budget adopted in 2018, which provided for increases in wages and benefits for direct care staff and certified nurse’s aides); see 2018 Mass. Acts 444.

⁸¹ Nicholas G. Castle & Jamie C. Ferguson, What is Nursing Home Quality and How is it Measured?, 50 Gerontologist 4, 426-42 (2010).

⁸² Id.; Chidambaram, Garfield, & Neuman, supra note 2.

⁸³ Richard M. Scheffler, Laura M. Alexander, and James R. Godwin, Soaring Private Equity Investment in the Healthcare Sector: Consolidation Accelerated, Competition Undermined, and Patients at Risk 2 (American Antitrust Institute 2021).

⁸⁴ Atul Gupta, Sabrina T. Howell, Constantine Yannelis, and Abhinav Gupta, Does Private Equity Investment in HealthCare Benefit Patients? Evidence from Nursing Homes, 1 (Nat’l Bureau of Econ. Rsch., Working Paper No. 28474, 2021); Rohit Pradhan et al., Private Equity Ownership of Nursing Homes: Implications for Quality, 42 J. Health Care Fin. 2 (June-July 2014); Alex Spanko, COVID-19 Brings Private Equity Investment in Nursing Homes into the Spotlight, Skilled Nursing News (March 19, 2020), https://skillednursingnews.com/2020/03/covid-19-brings-private-equity-investment-in-nursing-homes-into-the-spotlight/.

⁸⁵ Spanko, supra note 83.

⁸⁶ Andrew Metrick & Ayako Yasuda, The Economics of Private Equity Funds, 23 The Rev. of Fin. Stud. 6, 2303-2341 (2010); Pradhan et al., supra note 83; Spanko, supra note 83.

⁸⁷ Eileen O’Grady, Priv. Equity Stakeholder Project, Pulling Back the Veil on Today’s Private Equity Ownership of Nursing Homes (2021) https://pestakeholder.org/wp-content/uploads/2021/07/PESP_Report_NursingHomes_July2021.pdf.

⁸⁸ Metrick & Yasuda, supra note 86; Pradhan et al., supra note 83.

⁸⁹ Pradhan et al., supra note 83; Elizabeth De Fontenay, Private Equity’s Governance Advantage: A Requiem, 99 B. U. L. Rev. 1095, 1104 (2019).

⁹⁰ Metrick & Yasuda, supra note 86; Gupta et al., supra note 83 at 8.; Pradhan et al., supra note 83; In an LBO, the private equity firm creates a fund by collecting investments from private investors. With the money raised, the fund seeks a secured loan from which to purchase a portfolio company. (Elisabeth De Fontenay, Private Equity Firms as Gatekeepers, 33 Rev. Banking & Fin. L. 115, 122-23 (2013)).

⁹¹ De Fontenay, supra note 89, at 1104 (“Private equity firms do not pursue good governance for its own sake. The goal… is for private equity’s governance advantage to translate into an advantage in firm value…”).

⁹² Aline Bos & Charlene Harrington, What Happens to a Nursing Home Chain When Private Equity Takes Over? A Longitudinal Case Study, 54 Inquiry: The J. of Healthcare Org., Provision, and Fin., 1-10 (2017); see also Gupta et al., supra note 83 at 9.

⁹³ Robert Tyler Braun et al., Comparative Performance of Private Equity-owned US Nursing Homes During the COVID-19 Pandemic, 3 JAMA Network 10 (2020); Gupta et al., supra note 83 at 10.

⁹⁴ Braun et al., supra note 93.

⁹⁵ Bos & Harrington, supra note 92, at 8; see also De Fontenay, supra note 89, at 1104 (“[P]rivate equity firms may be more willing than typical management to make difficult decisions that improve operational efficiency, such as approving layoffs, spinning off underperforming divisions and even replacing top executives.”).

⁹⁶ Gupta et al., supra note 83, at 7 (finding that private equity own facilities aggressively respond to Medicaid expansion as a profitable enterprise).

⁹⁷ Steven N. Kaplan & Antoinette Schoar, Private Equity Performance: Returns, Persistence, and Capital Flows, 60 J. of Fin. 4, 1791-1823 (2005).

⁹⁸ Gupta et al., supra note 83 at 8; see also, Quentin Boucly et al., Growth LBOs, 102 J. of Fin. Econ. 2, 432-53; Josh Lerner et al., Private Equity and Long Run Investment: The Case of Innovation, 66 J. of Fin. 2, 445-77 (2011); Steven J. Davis et al., Private Equity, Jobs, and Productivity, 104 Am. Econ. R.12, 3956-90 (2014); Charlie Eaton et al., When Investor Incentives and Consumer Interests Diverge: Private Equity in Higher Education, 33 R. of Fin. Stud. 9: 4024-60 (2019) (providing an alternative view that in another highly subsidized industry, there is evidence that private equity creates firms value at the consumers’ expense).

⁹⁹ Erin Fuse Brown, Loren Adler, Erin Duffy, Paul B. Ginsburg, Mark Hall, AND Samuel Valdez, Private Equity Investment as a Divining Rod for Market Failure: Policy Responses To Harmful Physician Practice Acquisitions, USC-Brookings Schaeffer Initiative for Health Policy, 2021)[hereinafter Brookings](citing Sean Shenghsiu Huang & John R. Bowblis, Private Equity Ownership and Nursing Home Quality: An Instrumental Variables Approach, 19 Int. J. Health Econ. Manag‥ 273 (2019)).

¹⁰⁰ Gupta et al., supra note 83, at 6.

¹⁰¹ Bos & Harrington, supra note 92, at 1.

¹⁰² Id. at 1 (citing Rohit Pradhan, Robert Weech-Maldonado, Jeffrey S. Harman, Kathryn Hyer, Private Equity Ownership of Nursing Homes: Implications for Quality, 42 Journal of Health Care Finance 2 (June/July 2014)).

¹⁰³ Gupta et al., supra note 83, at 2.

¹⁰⁴ Id. at 14.

¹⁰⁵ Id. at 34-35 (reporting that admissions in private equity firms “increase by 3.5%, or 6.5 patients per year for the average facility).

¹⁰⁶ Private Equity in Healthcare: Hearing Before the H. Ways and Means Oversight Subcomm., 117th Cong. 1-10 (2021) (statement of Sabrina T. Howell, Assistant Professor, NYU Stern School of Business & NBER), https://waysandmeans.house.gov/sites/democrats.waysandmeans.house.gov/files/documents/S.%20Howell%20Testimony.pdf.

¹⁰⁷ Id. at 3-4.

¹⁰⁸ Id. at 3.

¹⁰⁹ Id. at 4.

¹¹⁰ Id.

¹¹¹ O’Grady, supra note 87, at 3.

¹¹² Gupta et al., supra note 83, at 4.

¹¹³ Id. at 11.

¹¹⁴ Joseph A. McCahery & Eric P. M. Vermeulen, Private Equity Regulation: A Comparative Analysis, 16 J. Mgmt. & Governance 197, 198 (2012).

¹¹⁵ Id. at 210.

¹¹⁶ O’Grady, supra note 87, at 2.

¹¹⁷ Martin B. Hackmann, Incentivizing Better Quality of Care: The Role of Medicaid and Competition in the Nursing Home Industry, 109 Am. Econ. Rev. 1684, passim (2019); Martin B. Hackmann & R. Vincent Pohl, Patient vs. Provider Incentives in Long Term Care 1, 3 (Nat’l Bureau of Econ. Rsch., Working Paper No. 25178, 2018); Gupta et al., supra note 83, at 3; David C. Grabowski & David G. Stevenson, Ownership Conversions and Nursing Home Performance, 43 Health Servs. Rsch. 1184, 1198-99 (2008); see also, David G. Stevenson & David C. Grabowski, Private Equity Investment and Nursing Home Care: Is it a big deal? 27 Health Affs. 1399, passim (2008); Charlene Harrington, Helen Carillo, Rachel Garfield, & Ellen Squires, Nursing Facilities, Staffing, Residents and Facility Deficiencies, 2009 through 2016 (Apr. 3, 2018), https://www.kff.org/medicaid/report/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016/ [https://perma.cc/DGQ6-ZX3Y]; Charlene Harrington, Brian Olney, Helen Carillo, & Taewoon Kang, Nurse Staffing and Deficiencies in the Largest For-Profit Nursing Home Chains and Chains Owned By Private Equity Companies, 47 Health Servs. Rsch. 106, 106 (2012); Charlene Harrington, Steffie Woolhandler, Joseph Mullan, Helen Carrillo, & David U. Himmelstein, Does Investor Ownership of Nursing Homes Compromise the Quality of Care?, 91 Am. J. Pub. Health 1452, 1454 (2001).

¹¹⁸ Id. at 4.

¹¹⁹ Id.

¹²⁰ Gupta et al., supra note 83, at 5; see also Bos & Harrington, supra note 92, at 5, 8.

¹²¹ Mark A. Hall, Law, Medicine and Trust, 55 Stan. L. Rev. 463, 477-78 (2002); See generally, Hackmann & Pohl, supra note 117.

¹²² Gretchen Morgenson and Emmanuelle Saliba, Private Equity Firms Now Control Many Hospitals, ERs and Nursing Homes. Is it Good for Healthcare?” NBC News (May 13, 2020), https://www.nbcnews.com/health/health-care/private-equity-firms-now-control-many-hospitals-ers-nursing-homes-n1203161.

¹²³ Brookings, supra note 99, at 1.

¹²⁴ Id. at 2 (recommending that policies: address “loopholes that raise costs for consumers and taxpayers; “[e]nhance enforcement under antitrust and employment laws;” “[i]ncrease fraud and abuse enforcement;” and to the extent that private equity raises specific risks, “explore policies” that would work).

¹²⁵ Gupta et al., supra note 83, at 3.

¹²⁶ Howell, supra note 106 , at 5.

¹²⁷ Id.

¹²⁸ Id. at 2; see also Paul J. Eliason et al., How Acquisitions Affect Firm Behavior and Performance: Evidence from the Dialysis Industry, 135 Q. J. ECON. 221, 260-62 (2020).

¹²⁹ Jessica Mantel, Accountable Care Organizations: Can we Have our Cake and Eat it Too?, 42 Seton Hall L. Rev. 1393, 1393 (2012).

¹³⁰ Id.; see also Danielle Pelfrey Duryea, Nicole Huberfeld, and Ruqaiijah Yearby, Disparities in Health Care: The Pandemic’s Lessons for Health Lawyers, in AHLA Health Law Watch, 31 (2021) (examining the significant proliferation of value-based models, [w]ith nearly 36 percent of total U.S. health care payments linked to value-based alternative payment models in 2018—up from 23 percent in 2015”)

¹³¹ Jessica Mantel, An Unintended Consequence of Payment Reforms: Providers Avoiding Nonadherent Patients, J. L., Med., & Ethics 931, 931 (2018).

¹³² Id. at 933.

¹³³ Id.

¹³⁴ See Cheryl L. Damberg et al., Measuring Success in Health Care Value-Based Purchasing Programs, 4 RAND Health Q. 9, xx-xxi (2014).

¹³⁵ See Id. at xix.

¹³⁶ Id. at xx.

¹³⁷ Id. at xix.

¹³⁸ Id. at xx.

¹³⁹ Id.

¹⁴⁰ Gary J. Young et al., Financial incentives, professional values and performance: A study of pay-for-performance in a professional organization, 33 J. Organizational Behav. 964, 980 (2012).

¹⁴¹ Id. at 976-77.

¹⁴² Id at 980.

¹⁴³ Id. at 980.

¹⁴⁴ Id. at 977.

¹⁴⁵ Id.

¹⁴⁶ See e.g., Mantel, supra note 131; see also, Jessica Mantel, How Efforts to Lower Health Care Costs are Putting Patients & Providers on a Collision Course, 44 Ohio Northern U.L. Rev. 371 (2018).

¹⁴⁷ Mantel, supra note 132; See also Pelfrey Duryea et al., supra note 130, at 32 (writing that, “[l]ower socioeconomic status (SES) and BIPOC populations are overrepresented among the patients likeliest to be ‘lemon-dropped’ from provider groups participating in VBP programs, in significant part because of the influence of intermediary social determinants of health.”).

¹⁴⁸ Mantel, supra note 131, at 932-33.

¹⁴⁹ Harris-Kojetin et al. supra note 16.

¹⁵⁰ See discussion supra Section III.

¹⁵¹ See discussion supra Section IV.

¹⁵² Harris-Kojetin et al. supra note 16, at 11.

¹⁵³ Id.

¹⁵⁴ Id.

¹⁵⁵ See Maggie Flynn, MedPAC: SNF Value-Based Purchasing Program Should “Be Eliminated and Replaced As Soon as Possible’ (June 21, 2021), https://skillednursingnews.com/2021/06/medpac-snf-value-based-purchasing-program-should-be-eliminated-and-replaced-as-soon-as-possible/.

¹⁵⁶ Id.

¹⁵⁷ Rod Baird, First Long-Term Care Accountable Care Organization Unveiled at Society Meeting, Practice Management (June 2017), https://www.caringfortheages.com/action/showPdf?pii=S1526-4114%2817%2930201-9.

¹⁵⁸ Id.; Alex Spanko, Genesis’s LTC ACO Pulls In $18.8M in Shared Savings for 2019 (Oct. 14, 2020), https://skillednursingnews.com/2020/10/genesiss-ltc-aco-pulls-in-18-8m-in-shared-savings-for-2019/

¹⁵⁹ Spanko supra note 158; Maggie Flynn, Confessions of a Skilled Nursing Operator: “ACOs Have Been a Disaster for SNFs’ (June 23, 2019), https://skillednursingnews.com/2019/06/confessions-of-a-skilled-nursing-operator-acos-have-been-a-disaster-for-snfs/.

¹⁶⁰ Flynn supra note 159.

¹⁶¹ See e.g. Thomas Rapp and Katherine Swartz, Implementing Value-Based Aging in our Long-Term Care Systems, Value &Outcomes Spotlight (2021), https://www.ispor.org/publications/journals/value-outcomes-spotlight/vos-archives/issue/view/the-benefits-and-challenges-of-aging-in-place/implementing-value-based-aging-in-our-long-term-care-systems; Jenna Libersky, Debra Lipson, and Denise Stone, To Address Long-Term Care Issues, Focus on Value, Mathematica (Mar. 24, 2021), https://www.mathematica.org/blogs/to-address-long-term-care-issues-focus-on-value.

¹⁶² See Past Targeted Distributions, Health Res. & Servs. Admin. (last reviewed June 2021), https://www.hrsa.gov/provider-relief/past-payments/targeted-distribution [https://perma.cc/6ZYJ-LBVV].

¹⁶³ Trump Administration Announces $2 Billion Provider Relief Fund Nursing Home Incentive Payment Plans, Ins. News Net (Sept. 3, 2020), https://insurancenewsnet.com/oarticle/trump-administration-announces-2-billion-provider-relief-fund-nursing-home-incentive-payment-plans [https://perma.cc/A3HH-22BU].

¹⁶⁴ HRSA to Start Allocating Next CARES Act Relief for Nursing Homes in mid-August, Am. Health Ass’n (Aug. 10, 2020, 3:00 PM) (internal quotations omitted), https://www.aha.org/news/headline/2020-08-10-hrsa-start-allocating-next-cares-act-relief-nursing-homes-mid-august [https://perma.cc/QJK8-DRA2].

¹⁶⁵ See O’Grady, supra note 87, at 3.

¹⁶⁶ Compare Who Pays for Long-Term Services and Supports? Congressional Research Service In Focus (August 5, 2021) (reporting that public expenditures for long-term services and supports is currently calculated at $296 billion), with Defense Budget: Opportunities Exist to Improve DOD’s Management of Defense Spending (Feb. 24, 2021) (reporting that the U.S. defense budget in 2020 was $714 billion).

¹⁶⁷ See discussion, supra Section III.B.

¹⁶⁸ The Life Cycle of Private Equity: Private Equity managers aim to create value by providing investment capital to a wide range of businesses, https://pws.blackstone.com/wp-content/uploads/sites/5/2020/09/the_life_cycle_of_private_equity_insights.pdf.

¹⁶⁹ See discussion, supra Section III.C.

¹⁷⁰ See discussion, supra Section III.

¹⁷¹ Id.

¹⁷² See supra note 161.

¹⁷³ See discussion, supra Section III.C.

¹⁷⁴ This may become easier in the future with the passage of the Corporate Transparency Act, that may make it more difficult for LLCs to operate without providing information about ownership. However, there is still uncertainty about how entity’s may be impacted once the Act takes effect in January 2022. See What You Need to Know about the Corporate Transparency Act, https://www.natlawreview.com/article/what-you-need-to-know-about-corporate-transparency-act; see also, James J. Wheaton & Gustavo De la Cruz Reynozo, We Have to Tell Them What?: The New Corporate Transparency Act and Forming Business Entities in Massachusetts. (Unpublished Journal Article).

¹⁷⁵ See discussion, supra Section II.B.

¹⁷⁶ See discussion, supra Section III.C.

¹⁷⁷ Id.

¹⁷⁸ See e.g, Gary J. Young, Howard Beckman, & Errol Baker, Financial incentives, professional values and performance: A study of pay-for-performance in a professional organization. 33 J. Organizational Behav. 980 (2012).

¹⁷⁹ An added complexity are cases where private equity firms invest in companies that they may not necessarily have governance control over. These theoretical incentives only function based on an assumption that a private equity firms take complete control over the target company and works towards governance improvements; See, e.g., De Fontenay, supra note 89, at 1113.

¹⁸⁰ See discussion, supra Section V.A. (suggesting that the organizational incentives be geared towards the facility or facility-chain).

¹⁸¹ Id.

¹⁸² Pelfrey Duryea et al., supra note 130, at 35-37. (describing the regulatory changes including Stark Law exceptions, safe harbors under the Anti-Kickback Statute, and HHS encouragement for states to use value-based models).

¹⁸³ Research has suggested that value-based models can successfully include metrics based on palliative care, however these metrics do not seem to be widely used. See e.g. Justin M. Glasgow, Zugui Zhang, Linsey D. O’Donnell, Roshni T Guerry, and Vinay Maheshwari, Hospital Palliative Care Consult Improves Value-based Purchasing Outcomes in a Propensity Score-Matched Cohort, 33 Palliative Medicine 456 (2019); see also Holly Vosell, Value-Based Models could Promote Palliative Care Integration https://hospicenews.com/2021/06/11/value-based-models-could-promote-palliative-care-integration/ (suggesting ways Hospice can integrate into value-based payment structures); Richard Bernstein and Laura Singh, A Value-Based Payment Model for Palliative Care: An Analysis of Savings and Return on Investment, 42 J. Ambulatory Care Manag., 66-73 (2019) (providing an example of how a value-based model for palliative care could make financial sense).

¹⁸⁴ Paul Gompers, Steven, and Vladimir Mukharlyamov, What Private Equity Investors Think They Do For the Companies They Buy, Harv. Bus. Rev. (June 18, 2015), https://hbr.org/2015/06/what-private-equity-investors-think-they-do-for-the-companies-they-buy.