Jordan Rau: The perils of nursing homes, in R.I. and elsewhere, ignoring minimum staffing rules
From Knight Family Foundation Health News
SMITHFIELD, Conn.
For hours, John Pernorio repeatedly mashed the call button at his bedside in the Heritage Hills nursing home in Rhode Island. A retired truck driver, he had injured his spine in a fall on the job decades earlier and could no longer walk. The antibiotics he was taking made him need to go to the bathroom frequently. But he could get there only if someone helped him into his wheelchair.
By the time an aide finally responded, he’d been lying in soiled briefs for hours, he said. It happened time and again.
“It was degrading,” said Pernorio, 79. “I spent 21 hours a day in bed.”
Payroll records show that during his stay at Heritage Hills, daily aide staffing levels were 25% below the minimums under state law. The nursing home said it provided high-quality care to all residents. Regardless, it wasn’t in trouble with the state, because Rhode Island does not enforce its staffing rule.
An acute shortage of nurses and aides in the nation’s nearly 15,000 nursing homes is at the root of many of the most disturbing shortfalls in care for the 1.2 million Americans who live in them, including many of the nation’s frailest old people.
They get festering bedsores because they aren’t turned. They lie in feces because no one comes to attend to them. They have devastating falls because no one helps them get around. They are subjected to chemical and physical restraints to sedate and pacify them.
California, Florida, Massachusetts, New York and Rhode Island have sought to improve nursing home quality by mandating the highest minimum hours of care per resident among states. But an examination of records in those states revealed that putting a law on the books was no guarantee of better staffing. Instead, many nursing homes operated with fewer workers than required, often with the permission of regulators or with no consequences at all.
“Just setting a number doesn’t mean anything if you’re not going to enforce it,” said Mark Miller, former president of the national organization of long-term care ombudsmen, advocates in each state who help residents resolve problems in their nursing homes. “What’s the point?”
Now the Biden administration is trying to guarantee adequate staffing the same way states have, unsuccessfully, for years: with tougher standards. Federal rules issued in April are expected to require 4 out of 5 homes to boost staffing.
The administration’s plan also has some of the same weaknesses that have hampered states. It relies on underfunded health inspectors for enforcement, lacks explicit penalties for violations, and offers broad exemptions for nursing homes in areas with labor shortages. And the administration isn’t providing more money for homes that can’t afford additional employees.
Serious health violations have become more widespread since covid-19 swept through nursing homes, killing more than 170,000 residents and driving employees out the door.
Pay remains so low — nursing assistants earn $19 an hour on average — that homes frequently lose workers to retail stores and fast-food restaurants that pay as well or better and offer jobs that are far less grueling. Average turnover in nursing homes is extraordinarily high: Federal records show half of employees leave their jobs each year.
Even the most passionate nurses and aides are burning out in short-staffed homes because they are stretched too thin to provide the quality care they believe residents deserve. “It was impossible,” said Shirley Lomba, a medication aide from Providence. She left her job at a nursing home that paid $18.50 an hour for one at an assisted living facility that paid $4 more per hour and involved residents with fewer needs.
The mostly for-profit nursing home industry argues that staffing problems stem from low rates of reimbursement by Medicaid, the program funded by states and the federal government that covers most people in nursing homes. Yet a growing body of research and court evidence shows that owners and investors often extract hefty profits that could be used for care.
Nursing home trade groups have complained about the tougher state standards and have sued to block the new federal standards, which they say are unworkable given how much trouble nursing homes already have filling jobs. “It’s a really tough business right now,” said Mark Parkinson, president and chief executive of one trade group, the American Health Care Association.
And federal enforcement of those rules is still years off. Nursing homes have as long as five years to comply with the new regulations; for some, that means enforcement would fully kick in only at the tail end of a second Biden administration, if the president wins reelection. Former President Donald Trump’s campaign declined to comment on what Trump would do if elected.
Persistent Shortages
Nursing home payroll records submitted to the federal government for the most recent quarter available, October to December 2023, and state regulatory records show that homes in states with tougher standards frequently did not meet them.
In more than two-thirds of nursing homes in New York and more than half of those in Massachusetts, staffing was below the state’s required minimums. Even California, which passed the nation’s first minimum staffing law two decades ago, has not achieved universal compliance with its requirements: at least 3½ hours of care for the average resident each day, including two hours and 24 minutes of care from nursing assistants, who help residents eat and get to the bathroom.
During inspections since 2021, state regulators cited a third of California homes — more than 400 of them — for inadequate staffing. Regulators also granted waivers to 236 homes that said workforce shortages prevented them from recruiting enough nurse aides to meet the state minimum, exempting them from fines as high as $50,000.
In New York, Gov. Kathy Hochul declared an acute labor shortage, which allows homes to petition for reduced or waived fines. The state health department said it had cited more than 400 of the state’s 600-odd homes for understaffing but declined to say how many of them had appealed for leniency.
In Florida, Gov. Ron DeSantis signed legislation in 2022 to loosen the staffing rules for all homes. The law allows homes to count almost any employee who engages with residents, instead of just nurses and aides, toward their overall staffing. Florida also reduced the daily minimum of nurse aide time for each resident by 30 minutes, to two hours.
Now only 1 in 20 Florida nursing homes are staffed below the minimum — but if the former, more rigorous rules were still in place, 4 in 5 homes would not meet them, an analysis of payroll records shows.
“Staffing is the most important part of providing high-quality nursing home care,” said David Stevenson, chair of the health policy department at Vanderbilt University School of Medicine. “It comes down to political will to enforce staffing.”\
The Human Toll
There is a yawning gap between law and practice in Rhode Island. In the last three months of 2023, only 12 of 74 homes met the state’s minimum of three hours and 49 minutes of care per resident, including at least two hours and 36 minutes of care from certified nursing assistants, payroll records show. One of the homes below the minimum was Heritage Hills Rehabilitation & Healthcare Center in Smithfield, where Pernorio, president of the Rhode Island Alliance for Retired Americans, went last October after a stint in a hospital.
“From the minute the ambulance took me in there, it was downhill,” he said in an interview.
Sometimes, after waiting an hour, he would telephone the home’s main office for help. A nurse would come, turn off his call light, and walk right back out, and he would push the button again, Pernorio reported in his weekly e-newsletter.
While he praised some workers’ dedication, he said others frequently did not show up for their shifts. He said staff members told him they could earn more flipping hamburgers at McDonald’s than they could cleaning soiled patients in a nursing home.
In a written statement, Heritage Hills did not dispute that its staffing, while higher than that of many homes, was below the minimum under state law.
Heritage Hills said that after Pernorio complained, state inspectors visited the home and did not cite it for violations. “We take every resident concern seriously,” it said in the statement. Pernorio said inspectors never interviewed him after he called in his complaint.
In interviews, residents of other nursing homes in the state and their relatives reported neglect by overwhelmed nurses and aides.
Jason Travers said his 87-year-old father, George, fell on the way to the bathroom because no one answered his call button.
“I think the lunch crew finally came in and saw him on the floor and put him in the bed,” Travers said. His father died in April 2023, four months after he entered the home.
Relatives of Mary DiBiasio, 92, who had a hip fracture, said they once found her sitting on the toilet unattended, hanging on to the grab bar with both hands. “I don’t need to be a medical professional to know you don’t leave somebody hanging off the toilet with a hip fracture,” said her granddaughter Keri Rossi-D’entremont.
When DiBiasio died in January 2022, Rhode Island was preparing to enact a law with nurse and aide staffing requirements higher than anywhere else in the country except Washington, D.C. But Gov. Daniel McKee suspended enforcement, saying the industry was in poor financial shape and nursing homes couldn’t even fill existing jobs. The governor’s executive order noted that several homes had closed because of problems finding workers.
Yet Rhode Island inspectors continue to find serious problems with care. Since January 2023, regulators have found deficiencies of the highest severity, known as immediate jeopardy, at 23 of the state’s 74 nursing homes.
Homes have been cited for failing to get a dialysis patient to treatment and for giving one resident a roommate’s methadone, causing an overdose. They have also been cited for violent behavior by unsupervised residents, including one who shoved pillow stuffing into a resident’s mouth and another who turned a roommate’s oxygen off because it was too noisy. Both the resident who was attacked and the one who lost oxygen died.
Bottom Lines
Even some of the nonprofit nursing homes, which don’t have to pay investors, are having trouble meeting the state minimums — or simply staying open.
Rick Gamache, chief executive of the nonprofit Aldersbridge Communities, which owns Linn Health & Rehabilitation in East Providence, said Rhode Island’s Medicaid program paid too little for the home to keep operating — about $292 per bed, when the daily cost was $411. Aldersbridge closed Linn this summer and converted it into an assisted living facility.
“We’re seeing the collapse of post-acute care in America,” Gamache said.
Many nursing homes are owned by for-profit chains, and some researchers, lawyers, and state authorities argue that they could reinvest more of the money they make into their facilities.
Bannister Center, a Providence nursing home that payroll records show is staffed 10% below the state minimum, is part of Centers Health Care, a New York-based private chain that owns or operates 31 skilled nursing homes, according to Medicare records. Bannister lost $430,524 in 2021, according to a financial statement it filed with Rhode Island regulators.
Last year, the New York attorney general sued the chain’s owners and investors and their relatives, accusing them of improperly siphoning $83 million in Medicaid funds out of their New York nursing homes by paying salaries for “no-show” jobs, profits above what state law allowed, and inflated rents and fees to other companies they owned. For instance, one of those companies, which purported to provide staff to the homes, paid $5 million to the wife of Kenny Rozenberg, the chain’s chief executive, from 2019 to 2021, the lawsuit said.
The defendants argued in court papers that the payments to investors and owners were legal and that the state could not prove they were Medicaid funds. They have asked for much of the lawsuit to be dismissed.
Jeff Jacomowitz, a Centers Health Care spokesperson, declined to answer questions about Bannister, Centers’ operations, or the chain’s owners.
Miller, the District of Columbia’s long-term care ombudsman, said many nursing home owners could pay better wages if they didn’t demand such high profits. In D.C., 7 in 10 nursing homes meet minimum standards, payroll records show.
“There’s no staffing shortage — there’s a shortage of good-paying jobs,” he said. “I’ve been doing this since 1984 and they’ve been going broke all the time. If it really is that bad of an investment, there wouldn’t be any nursing homes left.”
The new federal rules call for a minimum of three hours and 29 minutes of care each day per resident, including two hours and 27 minutes from nurse aides and 33 minutes from registered nurses, and an RN on-site at all times.
Homes in areas with worker shortages can apply to be exempted from the rules. Dora Hughes, acting chief medical officer for the U.S. Centers for Medicare & Medicaid Services, said in a statement that those waivers would be “time-limited” and that having a clear national staffing minimum “will facilitate strengthened oversight and enforcement.”
David Grabowski, a health policy professor at Harvard Medical School, said federal health authorities have a “terrible” track record of policing nursing homes. “If they don’t enforce this,” he said, “I don’t imagine it’s going to really move the needle a lot.”
The KFF Health News data analysis focused on five states with the most rigorous staffing requirements: California, Florida, Massachusetts, New York, and Rhode Island.
To determine staffing levels, the analysis used the daily payroll journals that each nursing home is required to submit to the federal government. These publicly available records include the number of hours each category of nursing home employee, including registered nurses and certified nursing assistants, worked each day and the number of residents in each home. We used the most recent data, which included a combined 1.3 million records covering the final three months of 2023.
We calculated staffing levels by following each state’s rules, which specify which occupations are counted and what minimums homes must meet. The analysis differed for each state. Massachusetts, for instance, has a separate requirement for the minimum number of hours of care registered nurses must provide each day.
In California, we used state enforcement action records to identify homes that had been fined for not meeting its law. We also tallied how many California homes had been granted waivers from the law because they couldn’t find enough workers to hire.
For each state and Washington, D.C., we calculated what proportion of homes complied with state or district law. We shared our conclusions with each state’s nursing home regulatory agency and gave them an opportunity to respond.
This analysis was performed by senior KFFHealth News correspondent Jordan Rau, who wrote this article, and data editor Holly K. Hacker.
Jim Hightower: Would they kill your granny to make a buck?
From OtherWords.org
There are industries that occasionally do something rotten. And there are industries, such as Big Oil, Big Pharma and Big Tobacco, that persistently do rotten things.
Then there is the nursing-home industry — where rottenness has become a core business principle.
The end-of-life experience can be rotten enough on its own, with an assortment of natural indignities bedeviling us. Good nursing homes help patients gently through this time. In the past couple of decades, though, an entirely unnatural force has come to dominate the delivery of aged care: profiteering corporate chains and Wall Street speculators.
The very fact that this essential and sensitive social function, which ought to be the domain of health professionals and charitable enterprises, is now called an “industry” reflects a total perversion of its purpose.
Some 70 percent of nursing homes are now corporate operations, often run by absentee executives who have no experience in nursing homes and who are guided by the market imperative of maximizing investor profits. They constantly demand “efficiencies” from their facilities — which invariably means reducing the number of nurses, which invariably reduces care, which means more injuries, illness and deaths.
As one nursing expert quoted by The New Yorker rightly says, “It’s criminal.”
But it’s not against the law, since the industry’s lobbying front — a major donor to congressional campaigns — effectively writes the laws, which lets corporate hustlers provide only one nurse on duty, no matter how many patients are in the facility.
When a humane nurse-staffing requirement was proposed last year, the lobby group furiously opposed it, and Congress dutifully bowed to industry profits over grandma’s decent end-time. After all, granny probably doesn’t make campaign donations.
So, as a health-policy analyst bluntly puts it, “The only kind of groups that seem to be interested in investing in nursing homes are bad actors.” To help push for better, contact TheConsumerVoice.org.
OtherWords columnist Jim Hightower is a radio commentator, writer and public speaker.
Judith Graham: New COVID rules for visitors distress relatives of elderly people in nursing homes
As COVID-19 cases rise again in nursing homes, at least for now, a few states have begun requiring visitors to present proof that they’re not infected before entering facilities, stoking frustration and dismay among family members.
Navigating Aging focuses on medical issues and advice associated with aging and end-of-life care, helping America’s 45 million seniors and their families navigate the health-care system.
Officials in California, New York, and Rhode Island say new COVID testing requirements are necessary to protect residents — an enormously vulnerable population — from exposure to the highly contagious omicron variant. But many family members say they can’t secure tests amid enormous demand and scarce supplies, leaving them unable to see loved ones. And being shut out of facilities feels unbearable, like a nightmare recurring without end.
Severe staff shortages are complicating the effort to ensure safety while keeping facilities open; these shortages also jeopardize care at long-term care facilities — a concern of many family members.
Andrea DuBrow’s 75-year-old mother, who has severe Alzheimer’s disease, has lived for almost four years in a nursing home in Danville, Calif. When DuBrow wasn’t able to see her for months earlier in the pandemic, she said, her mother forgot who she was.
“This latest restriction is essentially another lockdown,” DuBrow said at a meeting last week about California’s new regulations. “The time that my mom has left when she can recognize in some small locked-away part of her that it is me, her daughter, cleaning her, feeding her, holding her hand, singing her favorite songs — that time is being stolen from us.”
“This is a huge inconvenience, but what’s most upsetting is that no one seems to have any kind of long-term plan for families and residents,” said Ozzie Rohm, whose 94-year-old father lives in a San Francisco nursing home.
Why are family members subject to testing requirements that aren’t applied to staffers, Rohm wondered. If family members are vaccinated and boosted, wear good masks, stay in a resident’s room, and practice rigorous hand hygiene, do they pose more of a risk than staffers who follow these procedures?
California was the first state to announce new policies for visitors to nursing homes and other long-term care facilities on Dec. 31. Those took effect on Jan. 7 and remain in place for at least 30 days. To see a resident, a person must show evidence of a negative covid rapid test taken within 24 hours or a PCR test taken within 48 hours. Also, covid vaccinations are required.
In a statement announcing the new policy, the California Department of Public Health cited “the greater transmissibility” of the omicron variant and the need to “protect the particularly vulnerable populations in long-term care settings.” Throughout the pandemic, nursing home residents have suffered disproportionately high rates of illness and death.
New York followed California with a Jan. 7 announcement that nursing home visitors would need to show proof of a negative rapid test taken no more than a day before. And on Jan. 10, Rhode Island announced a new rule requiring proof of vaccination or a negative covid test.
Patient advocates are worried other states might adopt similar measures. “We are concerned that omicron will be used as an excuse to shut down visitation again,” said Sam Brooks, program and policy manager for the National Consumer Voice for Quality Long-Term Care, an advocacy group for people living in these facilities.
“We do not want to go back to the past two years of lockdowns in nursing homes and resident isolation and neglect,” he continued.
That’s also a priority for the federal Centers for Medicare & Medicaid Services, which has emphasized since Nov. 12 residents’ right to receive visitors without restriction as long as safety protocols are followed. Nursing homes could encourage but not require visitors to take tests in advance or provide proof of covid vaccination, guidance from CMS explained. Safety protocols included wearing masks, rigorous hand hygiene, and maintaining adequate physical distance from other residents.
With the rise of omicron, however, facilities pushed back. On Dec. 17, an organization representing nursing home medical directors and two national long-term care associations sent a letter to CMS’ administrator asking for more flexibility to “protect resident safety” and “place temporary visitation restrictions in nursing homes.” On Jan. 6, CMS affirmed residents’ right to visitation but said states could “take additional measures to make visitation safer.”
Asked for comment about the states’ recent actions, the federal agency said in a statement to KHN that “a state may require nursing homes to test visitors as long as the facility provides the rapid antigen tests, and there are enough testing supplies. … However, if there are not enough rapid testing supplies, the visits must be allowed to occur without a test (while still adhering to other practices, such as masking and physical distancing).”
Some relief from test shortages may be at hand under the Biden administration’s new plan to distribute four free tests per household. But for family members who visit nursing home residents several times a week, that supply won’t go very far.
Since the start of the year, tension over the balance between safety and residents’ rights to visitation has intensified. In the week ended Jan. 9, 57,243 nursing home staffers reported covid infections, almost 10 times as many as three weeks before. During the same period, resident infections rose to 32,061, almost eight times as many as three weeks earlier.
But outbreaks are occurring against a different backdrop today. More than 87 percent of nursing-home residents have been fully vaccinated, according to CMS, and 63 percent have also received boosters, reducing the risk that covid poses. Also, nursing homes have gained experience handling outbreaks. And the toll of nursing home lockdowns — loneliness, despair, neglect, and physical deterioration — is now far better understood.
“We have all seen the negative effects of restricting visitation on residents’ health and well-being,” said Joseph Gaugler, a professor who studies long-term care at the University of Minnesota’s School of Public Health. “For nursing homes to go back into a bunker mentality and shut everything down, that’s not a solution.”
Amid egregious staffing shortages, “we need people in these buildings who can take care of residents, and often those are visitors who are basically functioning as unpaid certified nursing assistants: grooming and toileting residents, turning and repositioning them, feeding them, stretching, and exercising them,” said Tony Chicotel, a staff attorney at California Advocates for Nursing Home Reform.
Nearly 420,000 staffers have left nursing homes since February 2020, according to the U.S. Bureau of Labor Statistics, worsening existing shortages.
When DuBrow learned of California’s new testing requirement for visitors, she arranged to get a PCR test at a testing site on Jan. 6, expecting results within 48 hours. Instead, she waited 104 hours before getting a response. (Her test was negative.) Eager to visit her mother, DuBrow called every CVS, Walgreens, and Target in a 25-mile radius of her home asking for a test but came up empty.
In a statement, the California Department of Public Health said the state had established 6,288 covid testing sites and sent millions of at-home tests to counties and local jurisdictions.
In New York, Democratic Gov. Kathy Hochul has pledged to deliver nearly 1 million COVID tests to nursing homes, where visitors can take them on the spot, but that presents its own problems. “We don’t want to test visitors who are lining up at the door. We don’t have the clinical staff to do that, and we need to focus all our staff on the care of residents,” said Stephen Hanse, president and CEO of the New York State Health Facilities Association, an industry organization.
With current staff shortages, trying to ensure that visitors are wearing masks, physical distancing, and adhering to infection control practices is “taxing on the staff,” said Janine Finck-Boyle, vice president of regulatory affairs at Leading Age, which represents not-for-profit long-term care providers.
“Really, the challenges are enormous,” said Gaugler, of the University of Minnesota, “and I wish there were easy answers.”
Judith Graham is a Kaiser Health News reporter.
Susan Jaffe: Designating 'essential support' people for nursing-home residents
From Kaiser Health News (kaiserhealthnews.org)
After COVID-19 hit Martha Leland’s nursing home — Sheridan Woods Health Care Center, in Bristol — it logged 28 fatalities; last year, she and dozens of other residents contracted the disease while the facility was on lockdown.
“The impact of not having friends and family come in and see us for a year was totally devastating,” she said. “And then, the staff all bound up with the masks and the shields on, that too was very difficult to accept.” She summed up the experience in one word: “scary.”
But under a law that Connecticut enacted in June, nursing-home residents will be able to designate an “essential support person” who can help take care of a loved one even during a public health emergency. Connecticut legislators also approved laws this year giving nursing-home residents free internet access and digital devices for virtual visits and allowing video cameras in their rooms so family or friends can monitor their care.
Similar benefits are not required by the Centers for Medicare & Medicaid Services, the federal agency that oversees nursing homes and pays for most of the care they provide. But states can impose additional requirements when federal rules are insufficient or don’t exist.
And that’s exactly what many are doing, spurred by the virus that hit the frail elderly hardest. During the first 12 months of the pandemic, at least 34 percent of those killed by the virus were residents of nursing homes and other long-term care facilities, even though they make up fewer than 1 percent of the American population. The vaccine has since reduced virus-related nursing-home deaths to about 1 in 4 covid-related fatalities in the United States, which have risen to more than 624,000, according to The New York Times’s case tracker.
“Part of what the pandemic did is to expose some of the underlying problems in nursing homes,” said Nina Kohn, a professor at Syracuse University School of Law and a distinguished scholar in elder law at Yale Law School. “This may present an opportunity to correct some of the long-standing problems and reduce some of the key risk factors for neglect and mistreatment.”
According to a review of state legislation, 23 geographically and politically diverse states have passed more than 70 pandemic-related provisions affecting nursing home operations. States have set minimum staffing levels for nursing homes, expanded visitation, mandated access for residents to virtual communications, required full-time nurses at all times and infection control specialists, limited owners’ profits, increased room size, restricted room occupancy to two people and improved emergency response plans.
The states’ patchwork of protection for nursing home residents is built into the nation’s nursing home care regulatory system, said a CMS spokesperson. “CMS sets the minimum requirements that providers need to meet to participate with the Medicare/Medicaid programs,” he said. “States may implement additional requirements to address specific needs in their state — which is a long-standing practice — as long as their requirements go above and beyond, and don’t conflict with, federal requirements.”
Julie Mayberry, an Arkansas state representative, remembers a nursing home resident in her district who stopped dialysis last summer, she said, and just “gave up” because he couldn’t live “in such an isolated world.”
“I don’t think anybody would have ever dreamed that we would be telling people that they can’t have someone come in to check on them,” said Mayberry, a Republican and the lead sponsor of the “No Patient Left Alone Act,” an Arkansas law ensuring that residents have an advocate at their bedside. “This is not someone that’s just coming in to say hello or bring a get-well card,” she said.
When the pandemic hit, CMS initially banned visitors to nursing homes but allowed the facilities to permit visits during the lockdown for “compassionate care,” initially if a family member was dying and later for other emergency situations. Those rules were often misunderstood, Mayberry said.
“I was told by a lot of nursing homes that they were really scared to allow any visitor in there because they feared the state of Arkansas coming down on them, and fining them for a violation” of the federal directive, she said.
Jacqueline Collins, a Democrat who represents sections of Chicago in the Illinois Senate, was also concerned about the effects of social isolation on nursing home residents. “The pandemic exacerbated the matter, and served to expose that vulnerability among our long-term care facilities,” said Collins, who proposed legislation to make virtual visits a permanent part of nursing home life by creating a lending library of tablets and other devices residents can borrow. Gov. J.B. Pritzker is expected to sign the measure.
To reduce the cost of the equipment, the Illinois Department of Public Health will provide grants from funds the state receives when nursing homes settle health and safety violations. Last year, Connecticut’s governor tapped the same fund in his state to buy 800 iPads for nursing home residents.
Another issue states are tackling is staffing levels. An investigation by the New York attorney general found that covid-related death rates from March to August 2020 were lower in nursing homes with higher staffing levels. Studies over the past two decades support the link between the quality of care and staffing levels, said Martha Deaver, president of Arkansas Advocates for Nursing Home Residents. “When you cut staff, you cut care,” she said.
But under a 1987 federal law, CMS requires facilities only to “have sufficient nursing staff to attain or maintain the highest practicable … well-being of each resident.” Over the years, states began to tighten up that vague standard by setting their own staffing rules.
The pandemic accelerated the pace and created “a moment for us to call attention to state legislators and demand change,” said Milly Silva, executive vice president of 1199SEIU, the union that represents 45,000 nursing home workers in New York and New Jersey.
This year states increasingly have established either a minimum number of hours of daily direct care for each resident, or a ratio of nursing staff to residents. For every eight residents, New Jersey nursing homes must now have at least one certified nursing aide during the day, with other minimums during afternoon and night work shifts. Rhode Island’s new law requires nursing homes to provide a minimum of 3.58 hours of daily care per resident, and at least one registered nurse must be on duty 24 hours a day every day. Next door in Connecticut, nursing homes must now provide at least three hours of daily direct care per resident next year, one full-time infection control specialist and one full-time social worker for every 60 residents.
To ensure that facilities are not squeezing excessive profits from the government payment they receive to care for residents, New Jersey lawmakers approved a requirement that nursing homes spend at least 90 percent of their revenue on direct care. New York facilities must spend 70 percent, including 40 percent to pay direct-care workers. In Massachusetts, the governor issued regulations that mandate nursing homes devote at least 75 percent on direct-care staffing costs and cannot have more than two people living in one room, among other requirements.
Despite the efforts to improve protections for nursing home residents, the hodgepodge of uneven state rules is “a poor substitute for comprehensive federal rules if they were rigorously enforced,” said Richard Mollot, executive director of the Long Term Care Community Coalition, an advocacy group. “The piecemeal approach leads to and exacerbates existing health care disparities,” he said. “And that puts people — no matter what their wealth, or their race or their gender — at an even greater risk of poor care and inhumane treatment.”
Susan Jaffe is a reporter at Kaiser Health News.
Jaffe.KHN@gmail.com, @SusanJaffe
Jordan Rau: Feds cracking down on short-staffed nursing homes
The federal government accelerated its crackdown on nursing homes that go days without a registered nurse by downgrading the rankings of a tenth of the nation’s homes on Medicare’s consumer website, new records show.
In its update in April to Nursing Home Compare, the Centers for Medicare & Medicaid Services gave its lowest star rating for staffing — one star on its five-star scale — to 1,638 homes. Most were downgraded because their payroll records reported no registered-nurse hours at all for four days or more, while the remainder failed to submit their payroll records or sent data that couldn’t be verified through an audit.
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If you would like a copy of this data, please email elucas@kff.org
“Once you’re past four days [without registered nursing], it’s probably beyond calling in sick,” said David Grabowski, a health policy professor at Harvard Medical School. “It’s probably a systemic problem.”
It was a tougher standard than Medicare had previously applied, when it demoted nursing homes with seven or more days without a registered nurse.
“Nurse staffing has the greatest impact on the quality of care nursing homes deliver, which is why CMS analyzed the relationship between staffing levels and outcomes,” the agency announced in March. “CMS found that as staffing levels increase, quality increases.”
The latest batch of payroll records, released in April, shows that even more nursing homes fell short of Medicare’s requirement that a registered nurse be on-site at least eight hours every day. Over the final three months of 2018, 2,633 of the nation’s 15,563 nursing homes reported that for four or more days, registered nurses worked fewer than eight hours, according to a Kaiser Health News analysis. Those facilities did not meet Medicare’s requirement even after counting nurses whose jobs are primarily administrative.
CMS has been alarmed at the frequency of understaffing of registered nurses — the most highly trained category of nurses in a home — since the government last year began requiring homes to submit payroll records to verify staffing levels. Before that, Nursing Home Compare relied on two-week snapshots nursing homes reported to health inspectors when they visited — a method officials worried was too easy to manipulate. The records show staffing on weekends is often particularly anemic.
CMS’s demotion of ratings on staffing is not as severe as it might seem, however. More than half of those homes were given a higher rating than one star for their overall assessment after CMS weighed inspection results and the facilities’ own measurement of residents’ health improvements.
That overall rating is the one that garners the most attention on Nursing Home Compare and that some hospitals use when recommending where discharged patients might go. Of the 1,638 demoted nursing homes, 277 were rated as average in overall quality (three stars), 175 received four stars, and 48 received the top rating of five stars.
Still, CMS’s overall changes to how the government assigns stars drew protests from nursing home groups. The American Health Care Association, a trade group for nursing homes, calculated that 36% of homes saw a drop in their ratings while 15% received improved ratings.
“By moving the scoring ‘goal posts’ for two components of the Five-Star system,” the association wrote, “CMS will cause more than 30 percent of nursing centers nationwide to lose one or more stars overnight — even though nothing changed in staffing levels and in quality of care, which is still being practiced and delivered every day.”
The association said in an email that the payroll records might exaggerate the absence of staff through unintentional omissions that homes make when submitting the data or because of problems on the government’s end. The association said it had raised concerns that salaried nurses face obstacles in recording time they worked above 40 hours a week. Also, the association added, homes must deduct a half-hour for every eight-hour shift for a meal break, even if the nurse worked through it.
“Some of our member nursing homes have told us that their data is not showing up correctly on Nursing Home Compare, making it appear that they do not have the nurses and other staff that they in fact do have on duty,” LeadingAge, an association of nonprofit medical providers including nursing homes, said last year.
Kaiser Health News has updated its interactive nursing home staffing tool with the latest data. You can use the tool to see the rating Medicare assigns to each facility for its registered nurse staffing and overall staffing levels. The tool also shows KHN-calculated ratios of patients to direct-care nurses and aides on the best- and worst-staffed days.
Jordan Rau: jrau@kff.org, @JordanRau
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Jordan Rau: Trump cuts way back on fines for nursing homes
From Kaiser Health News
The Trump administration’s decision to alter the way it punishes nursing homes has resulted in lower fines against many facilities found to have endangered or injured residents.
The average fine dropped to $28,405 under the current administration, down from $41,260 in 2016, President Barack Obama’s final year in office, federal records show.
The decrease in fines is one of the starkest examples of how the Trump administration is rolling back Obama’s aggressive regulation of health care services in response to industry prodding.
Encouraged by the nursing home industry, the Trump administration switchedfrom fining nursing homes for each day they were out of compliance — as the Obama administration typically did — to issuing a single fine for two-thirds of infractions, the records show.
That reduces the penalties, giving nursing homes less incentive to fix faulty and dangerous practices before someone gets hurt.
“It’s not changing behavior [at nursing homes] in the way that we want,” said Dr. Ashish Jha, a professor at the Harvard T.H. Chan School of Public Health. “For a small nursing home it could be real money, but for bigger ones it’s more likely a rounding error.”
Since Trump took office, the administration has heeded multiple nursing home complaints about zealous oversight. It granted facilities an 18-month moratorium from being penalized for violating eight new health and safety rules. It also revoked an Obama-era rule barring homes from pre-emptively requiring residents to submit to arbitration to settle disputes rather than go to court.
The slide in fines occurred even as the Centers for Medicare & Medicaid Services issued financial penalties 28 percent more frequently than it did under Obama. That’s due to a policy begun near the end of Obama’s term that required regulators to punish a facility every time a resident was harmed, instead of leaving it to their discretion.
While that policy increased the number of smaller fines, larger fines became less common. The total amount collected under Trump fell by 10 percent compared with the total in Obama’s final year, from $127 million under Obama to $114 million under Trump. (KHN compared penalties during 2016, Obama’s last year in office, with penalties under Trump from April 2017 through March 2018, the most recent month for which federal officials say data is reliably complete.)
CMS said it has revised multiple rules governing fines under both administrations to make its punishments fairer, more consistent and better tailored to prod homes to improve care. “We are continuing to analyze the impact of these combined events to determine if other actions are necessary,” CMS said in a statement.
The move is broadly consistent with the Trump administration’s other industry-friendly policies in the health care sector. For instance, the administration has expanded the role of short-term insurance policies that don’t cover all types of services, given states more leeway to change their Medicaid programs and urged Congress to allow physicians to open their own hospitals.
Beth Martino, a spokeswoman for the American Health Care Association, a nursing home trade group, said the federal government has “returned to a method of applying fines in a way that incentivizes solving problems” rather than penalizing “facilities that are trying to do the right thing.”
Penalty guidelines were toughened in 2014, when the Obama administration instructed officials to favor daily fines. By 2016, those were used in two-thirds of cases. Those fines averaged $61,000.
When Trump took over, the nursing home industry complained that fines had spun “out of control” and become disproportionate to the deficiencies. “We have seen a dramatic increase in [fines] being retroactively issued and used as a punishment,” Mark Parkinson, president of the nursing home group, wrote in March 2017.
CMS agreed that daily fines sometimes resulted in punishments that were determined by the random timing of an inspection rather than the severity of the infraction. If inspectors visited a home in April, for instance, and discovered an improper practice had started in February, the accumulated daily fines would be twice as much as if the inspectors had come in March.
But switching to a preference for per-instance fines means much lower penalties, since fines are capped at $21,393 whether they are levied per instance or per day. Homes that pay without contesting the fine receive a 35 percent discount, meaning they currently pay at most $13,905.
Those maximums apply even to homes found to have committed the most serious level of violations, which are known as immediate jeopardy because the home’s practices place residents at imminent risk of harm. For instance, a Mississippi nursing home was fined $13,627 after it ran out of medications because it had been relying on a pharmacy 373 miles away, in Atlanta. CMS also reduced $54,600 in daily fines to a single fine of $20,965 for a New Mexico home where workers hadn’t been properly disinfecting equipment to prevent infectious diseases from spreading.
On average, per-instance fines under Trump were below $9,000, records show.
“These are multimillion businesses — $9,000 is nothing,” said Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, a nonprofit in Washington.
Big daily fines, averaging $68,080, are still issued when a home hasn’t corrected a violation after being cited. But even in those cases, CMS officials are allowed to make exceptions and issue a single fine if the home has no history of substantial violations.
The agency cautioned that comparisons of average fines is misleading because the overall number of inspections resulting in fines increased under Trump, from 3.5 percent in 2016 to 4.7 percent. The circumstances now warranting fines that weren’t issued before tend to draw penalties on the lower side.
However, KHN found that financial penalties for immediate jeopardies were issued in fewer cases under Trump. And when they were issued, the fines averaged 18 percent less than they did in 2016.
The frequency of immediate-jeopardy fines may further decrease. CMS told inspectors in June that they were no longer required to fine facilities unless immediate-jeopardy violations resulted in “serious injury, harm, impairment or death.” Regulators still must take some action, but that could be ordering the home to arrange training from an outside group or mandating specific changes to the way the home operates.
Barbara Gay, vice president of public policy communications at LeadingAge — an association of nonprofit organizations that provide elder services, including nursing homes — said that, under Trump, nursing homes “don’t feel they’ve been given a reprieve.”
But consumer advocates say penalties have reverted to levels too low to be effective. “Fines need to be large enough to change facility behavior,” said Robyn Grant, director of public policy and advocacy at the National Consumer Voice for Quality Long-Term Care, a nonprofit based in Washington. “When that’s not the case and the fine is inconsequential, care generally doesn’t improve.”
Jordan Rau: jrau@kff.org, @JordanRau
Jordan Rau: Thin and erratic staffing levels at many nursing homes
From Kaiser Health News
ITHACA, N.Y. — Most nursing homes had fewer nurses and caretaking staff than they had reported to the government, according to new federal data, bolstering the long-held suspicions of many families that staffing levels were often inadequate.
The records for the first time reveal frequent and significant fluctuations in day-to-day staffing, with particularly large shortfalls on weekends. On the worst-staffed days at an average facility, the new data show, on-duty personnel cared for nearly twice as many residents as they did when the staffing roster was fullest.
The data, analyzed by Kaiser Health News, come from daily payroll records Medicare only recently began gathering and publishing from more than 14,000 nursing homes, as required by the Affordable Care Act of 2010. Medicare previously had been rating each facility’s staffing levels based on the homes’ own unverified reports, making it possible to game the system.
The payroll records provide the strongest evidence that, over the past decade, the government’s five-star rating system for nursing homes often exaggerated staffing levels and rarely identified the periods of thin staffing that were common. Medicare is now relying on the new data to evaluate staffing, but the revamped star ratings still mask the erratic levels of people working from day to day.
At the Beechtree Center for Rehabilitation & Nursing here, Jay Vandemark, 47, who had a stroke last year, said he often roams the halls looking for an aide not already swamped with work when he needs help putting on his shirt.
Especially on weekends, he said, “it’s almost like a ghost town.”
Nearly 1.4 million people are cared for in skilled nursing facilities in the United States. When nursing homes are short-staffed, nurses and aides scramble to deliver meals, ferry bed-bound residents to the bathroom and answer calls for pain medication. Essential medical tasks such as repositioning a patient to avert bedsores can be overlooked when workers are overburdened, sometimes leading to avoidable hospitalizations.
“Volatility means there are gaps in care,” said David Stevenson, an associate professor of health policy at Vanderbilt University School of Medicine, in Nashville. “It’s not like the day-to-day life of nursing home residents and their needs vary substantially on a weekend and a weekday. They need to get dressed, to bathe and to eat every single day.”
Dr. David Gifford, a senior vice president at the American Health Care Association, a nursing home trade group, disagreed, saying there are legitimate reasons staffing varies. On weekends, for instance, there are fewer activities for residents and more family members around, he said.
“While staffing is important, what really matters is what the overall outcomes are,” he said.
While Medicare does not set a minimum resident-to-staff ratio, it does require the presence of a registered nurse for eight hours a day and a licensed nurse at all times.
The payroll records show that even facilities that Medicare rated positively for staffing levels on its Nursing Home Compare website, including Beechtree, were short nurses and aides on some days. On its best-staffed days, Beechtree had one aide for every eight residents, while on its lowest-staffed days the ratio was 1-to-18. Nursing levels also varied.
The Centers for Medicare & Medicaid Services, the federal agency that oversees nursing home inspections, said in a statement that it “is concerned and taking steps to address fluctuations in staffing levels” that have emerged from the new data. This month, it said it would lower ratings for nursing homes that had gone seven or more days without a registered nurse.
Beechtree’s payroll records showed similar staffing levels to those it had reported before. David Camerota, chief operating officer of Upstate Services Group, the for-profit chain that owns Beechtree, said in a statement that the facility has enough nurses and aides to properly care for its 120 residents. But, he said, like other nursing homes, Beechtree is in “a constant battle” to recruit and retain employees even as it has increased pay to be more competitive.
Camerota wrote that weekend staffing is a special challenge as employees are guaranteed every other weekend off. “This impacts our ability to have as many staff as we would really like to have,” he wrote.
New Rating Method Is Still Flawed
In April, the government started using daily payroll reports to calculate average staffing ratings, replacing the old method, which relied on homes to report staffing for the two weeks before an inspection. The homes sometimes anticipated when an inspection would happen and could staff up before it.
The new records show that on at least one day during the last three months of 2017 — the most recent period for which data were available — a quarter of facilities reported no registered nurses at work.
Medicare discouraged comparison of staffing under the two methods and said no one should expect them to “exactly match.” The agency said the methods measure different time periods and have different criteria for how to record hours that nurses worked. The nursing home industry also objected, with Gifford saying it was like comparing Fahrenheit and Celsius temperatures.
But several prominent researchers said the contrast was not only fair but also warranted, since Medicare is using the new data for the same purpose as the old: to rate nursing homes on its website. “It’s a worthwhile comparison,” said David Grabowski, a professor of health-care policy at Harvard Medical School.
Payroll records at Beechtree show that on its best-staffed days, it had one aide for every eight residents, but the ratio was 1-to-18 at the lowest staffing level.
Of the more than 14,000 nursing homes submitting payroll records, 7 in 10 had lower staffing using the new method, with a 12 percent average decrease, the data show. And as numerous studies have found, homes with lower staffing tended to have more health code violations — another crucial measure of quality.
Even with more reliable data, Medicare’s five-star rating system still has shortcomings. Medicare still assigns stars by comparing a home to other facilities, essentially grading on a curve. As a result, many homes have kept their rating even though their payroll records showed lower staffing than before. Also, Medicare did not rate more than 1,000 facilities, either because of data anomalies or because they were too new to have a staffing history.
There is no consensus on optimal staffing levels. Medicare has rebuffed requests to set specific minimums, declaring in 2016 that it preferred that facilities “make thoughtful, informed staffing plans” based on the needs of residents.
Still, since 2014, health inspectors have cited 1 in 8 nursing homes for having too few nurses, federal records show.
With nurse assistants earning an average of $13.23 an hour in 2017, nursing homes compete for workers not only with better-paying employers like hospitals, but also with retailers. Understaffing leads predictably to higher turnover.
“They get burned out and they quit,” said Adam Chandler, whose mother lived at Beechtree until her death earlier this year. “It’s been constant turmoil, and it never ends.”
Medicare’s payroll records for the nursing homes showed that there were, on average, 11 percent fewer nurses providing direct care on weekends and 8 percent fewer aides. Staffing levels fluctuated substantially during the week as well, when an aide at a typical home might have to care for as few as nine residents or as many as 14.
A Family Council Forms
Beechtree actually gets its best Medicare rating in the category of staffing, with four stars. (Its inspection citations and the frequency of declines in residents’ health dragged its overall star rating down to two of five.)
To Stan Hugo, a retired math teacher whose wife, Donna, 80, lives at Beechtree, staffing levels have long seemed inadequate. In 2017, he and a handful of other residents and family members became so dissatisfied that they formed a council to scrutinize the home’s operation. Medicare requires nursing home administrators to listen to such councils’ grievances and recommendations.
Sandy Ferreira, who makes health-care decisions for Effie Hamilton, a blind resident, said Hamilton broke her arm falling out of bed and has been hospitalized for dehydration and septic shock.
“Almost every problem we’ve had on the floor is one that could have been alleviated with enough and well-trained staff,” Ferreira said.
Beechtree declined to discuss individual residents but said it had investigated these complaints and did not find inadequate staffing on those days. Camerota also said that Medicare does not count assistants it hires to handle the simplest duties like making beds.
In recent months, Camerota said, Beechtree “has made major strides in listening to and addressing concerns related to staffing at the facility.”
Hugo agreed that Beechtree has increased daytime staffing during the week under the prodding of his council. On nights and weekends, he said, it still remained too low.
His wife has Alzheimer’s, uses a wheelchair and no longer talks. She enjoys music, and Hugo placed earphones on her head so she could listen to her favorite singers as he spoon-fed her lunch in the dining room on a recent Sunday.
As he does each day he visits, he counted each nursing assistant he saw tending residents, took a photograph of the official staffing log in the lobby and compared it to what he had observed. While he fed his wife, he noted two aides for the 40 residents on the floor — half what Medicare says is average at Beechtree.
“Weekends are terrible,” he said. While he’s regularly there overseeing his wife’s care, he wondered: “What about all these other residents? They don’t have people who come in.”
Nursing homes using guardianship to get patients' assets
The New York Times reports that this practice, at least in New York, has ''become routine, underscoring the growing power nursing homes wield over residents and families amid changes in the financing of long-term care.''
''At least one judge has ruled that the tactic by nursing homes is an abuse of the law, but the petitions, even if they are ultimately unsuccessful, force families into costly legal ordeals.'
''Although it is a drastic measure, nursing home lawyers argue that using guardianship to secure payment for care is better than suing an incapacitated resident who cannot respond.''