Nursing Homes Found Guilty in Criminal Understaffing Case= Individual Defendants Acquitted

In a rare case in which a nursing home business faced criminal charges over staffing misconduct, two Pennsylvania facilities owned by Comprehensive Healthcare Management Services were recently found guilty of healthcare fraud and other crimes.

Prosecutors alleged two different schemes to enrich the nursing homes’ operations. In the first, leaders were accused of falsifying payroll documents to make it appear the nursing homes were meeting required staffing levels, including having non-working direct care staff clock in for shifts they never intended to work. In the second, administrators were accused of changing assessments to make it appear patients were clinically depressed or needed more therapy as a means of delaying discharge and driving Medicare or Medicaid reimbursements.  

Both schemes appear to be occasional, if not common, practice of some nursing homes.  The Trump Administration, for example, began demanding payroll records of nursing homes, because CMS found that some nursing homes misrepresented staffing levels on routine reports. Moreover, the financial incentive of these institutions to misrepresent a patient's condition or need for treatment, underlies many of the ongoing battles to ensure better quality of care for patients.  

After five weeks of testimony in the complicated case involving Brighton Rehabilitation and Wellness Center and Mt. Lebanon Rehabilitation and Wellness Center, the jury returned verdicts against the institutions charged. The US Attorney’s Office for the Western District of Pennsylvania also prosecuted five company and facility leaders for their roles in a scheme that led to overbilling; the jury found all five not guilty.

Brighton Rehab itself was found guilty of healthcare fraud and five counts of falsification of records in a federal investigation, while Mt. Lebanon was found guilty of one count of falsification of records related to healthcare matters and three counts of falsification of records in a federal investigation. The nursing home defendants are scheduled to be sentenced in May before US District Judge Robert J. Colville.

According to Kimberly Marselas, reporting for McKnights' Long Term Care News, neither prosecutors nor defense attorneys offered a solid explanation why the jury reserved its convictions for the corporate defendants. US Attorney Eric Olshan, nonetheless, assured told McKnight’s Long-Term Care News that his office would pursue similar cases in the future, if warranted:

“Our legal system entrusts the jury with making determinations of guilt, and as in all cases, we respect the jury’s verdict. Today, the jury held the two corporate defendants criminally liable for a total of 10 counts of making false statements and obstructing CMS’s critically important work of ensuring that nursing facilities comply with the law.  This office and our law enforcement partners will continue to seek accountability for any individual or business that pursues profit through deceit and does so at the expense of vulnerable members of our community.”

Several counts in the indictment carried up to $250,000 in fines, or jail times in the case of individuals. In a press release issued by the US Attorney’s Office , prosecutors said the companies faced a maximum of five years probation, $500,000 in fines, or both, on the counts for which they were convicted.

According to McKnights, 

"Brighton, with 589 beds, is one of the state’s largest nursing homes and was plagued by problems during the pandemic. The facility was hit with at least  $62,000 in fines for infection control deficiencies, and the state later selected a temporary manager to come in and clean up operations. 

The 121-bed Mt. Lebanon facility also has had its share of problems, including a 2-star overall rating and an abuse citation noted on the Care Compare site.

Both facilities are managed by Comprehensive Healthcare Management Services, an entity affiliated with Ephram “Mordy” Lahasky. He has a 10% direct ownership stake in Brighton, while Halper has a 12% ownership stake.

Attorneys for the individual defendants framed the case as one of sloppy record keeping and government malfeasance, rather than intentional fraud, TribLive reported.  The Pittsburgh Tribune-Review reported that attorneys also attacked the credibility of 20 former nursing home employees as each having an axe to grind: some were fired, others quit, and some were offered immunity in exchange for their testimony.

Attorney Kirk Ogrosky represented Sam Halper, Brighton’s CEO and 12% owner and an officer at Mt. Lebanon. Orgosky argued there was no evidence Halper was involved in ordering or completing incorrect staffing records but instead told the jury that a handful of staff members came up with a scheme to cheat the buildings’ corporate owners.

“Throughout this case, all defendants cooperated with the US Department of Justice in every way possible. Yet, DOJ pursued individuals without regard for the truth,” Halper said in a statement shared with TribLive. “Thankfully, the jurors were able to hear the evidence and find that the facts did not support DOJ’s claims.”

Regardless, the case is representative of just how complicated is the challenge to ensure care quality,  and just how difficult it can be for the government, even when properly motivated, to protect the vulnerable by holding third parties responsible.  Individuals and institutions pursuing their own self interest at the expense of senior residents and patients is a common theme in cases like the one reported.  

Of course, the case does not ask or resolve the question of whether a health care system devised and regulated by a government bureaucracy overly concerned with reducing costs at the expense of quality can ever attain a high quality of care for patients.  Aging in Place is a discreet goal of a well-crafted estate plan because a person with family and loved ones can often better control the circumstances of their care at home or at less institutional alternatives.

Biden Administration Targets Nursing Home Quality and Aging in Place Alternatives

President Joe Biden’s second State of the Union (SOTU) address Tuesday night included mention of the Administration's efforts to make nursing homes safer for seniors.  In addition, the White House indicated Monday it intends to put even more more pressure on providers.

“We’re protecting seniors’ life savings by cracking down on nursing homes that commit fraud, endanger patient safety and prescribe drugs that are not needed,” Biden trumpeted during the SOTU. The 12-second mention was in direct reference to the administration’s January 18 announcement that the Centers for Medicare & Medicaid Services (CMS) would soon implement targeted audits to determine whether providers are properly assessing and coding patients with a schizophrenia diagnosis. The reasons for these actions are well explained in the following articles available on this blog:

The agency also announced at that time that it will begin publicly displaying disputed survey citations even before their merit is proven or disproven, which no doubt frustrates the industry.  Advocates welcome the transparency, particularly given the historically poor record of CMS enforcement, and poor relationship between ratings and actual quality of care.  See the following: 

The nursing home declaration Tuesday came 36 minutes into a 73-minute speech before a joint gathering of Congress, Supreme Court justices, military leaders and other top federal figures.  You might remember that in his 2022 State of the Union, President Biden was more explicit about his intention to hold certain elements of the long-term care sector to account:

“Medicare is going to set higher standards for nursing homes and make sure your loved ones get the care they deserve and that they inspect and will get looked at closely.” 

He also then promised accountability for “Wall Street” firms that take over facilities and don’t maintain high standards and quality.  The 19-second SOTU mention was believed to be the "most extensive mention of nursing homes" ever in a State of the Union.  The White House released an expansive 21-point reform plan that, today, remains a work in progress. 

Biden’s 2023 SOTU nursing homes mention was hardly as controversial as his last a year earlier. The centerpiece of the previously announced reform effort was a promised first-ever nursing home staffing mandate. See, "White House Announces Measures to Improve Nursing Home Care Quality. Staffing shortages threaten health, and frustrate seniors in planning quality care.  See, Home Health Care Staff Shortages Threaten Health- Frustrates Aging in Place.

A newly developed detailed proposal, feared by many nursing home operators already struggling with staffing, may be released at any time. Recently, an administration official announced that a study encompassing provider interviews and projected cost implications is now complete and strategies are being considered.

 All administrations are duty-bound to crack down on fraudulent activities conducted by nursing home operators, as well as any committed by other healthcare and non-healthcare entities that accept federal funding.  In addition to several high-profile regulatory actions announced by CMS over the last year, the Department of Justice on Tuesday announced that a record $2.2 billion had been recovered via False Claims Act involving nursing homes, and many others.

The White House also issued a new White House Fact Sheet, including a section labeled “Improving safety and accountability in nursing homes” indicating that more regulatory belt-tightening will be coming for nursing homes:  

“As the President directed in last year’s State of the Union, CMS has taken action to strengthen oversight of the worst performing nursing homes, prevent abuse and Medicare fraud, and improve families’ ability to comparison shop across nursing homes. In the coming days and months, CMS will announce new actions to increase safety and accountability at nursing homes.”

On Tuesday night, Biden also urged lawmakers to adopt his upcoming budget plan to pay for more services for seniors in their homes:

“Pass my plan so we get seniors and people with disabilities the home care and services they need, and support the workers who are doing God’s work. These plans are fully paid for and we can afford to do them.” 

The centerpiece of the Trump Administration's effort to encourage and support aging in place focused on Advantage Plans, and expanding availability of alternatives to institutional care outside of traditional Medicare and Medicaid.  A  shift in focus on Medicare, the mechanism that the vast majority of seniors use to pay for  health care, is positive and welcome.  It is long past time for Medicare to take responsibility financially for providing alternatives to institutional care, and for expanding these alternatives where they do not yet exist.  

White House Announces Measures to Improve Nursing Home Care Quality

The Biden administration on February 28th announced a round of new measures for nursing homes aimed at ensuring adequate care for seniors. 

Citing how the pandemic "highlighted the tragic impact of substandard conditions at nursing homes," the White House announced it would be issuing new requirements through the Department of Health and Human Services (HHS) to improve the "quality and safety" of nursing homes.  Through the Centers for Medicare and Medicaid Services (CMS), the administration will be proposing new minimum standards of care to be unveiled within the next year following a study to determine the level of care and staffing needed.  That means, practically, that it is intended that the new minimum standards would be in place before January 1st, 2024.

While the Administration's highlighting quality of care issues in nursing homes is welcome and commendable, it is hard to see the move as anything but a political device giving President Biden subject matter for his upcoming and first State of the Union address.  President Biden is "set to talk further on these proposed plans," among other topics, on Tuesday evening during the address.

The American Health Care Association/National Center for Assisted Living (AHCA/NCAL) and LeadingAge, while grateful the Biden administration seems to be prioritizing long-term care, questioned how these policies would be implemented and enforced without adequate funding and investments.

Mark Parkinson, president and CEO of The American Health Care Association and National Center for Assisted Living (AHCA/NCAL), said in a statement to Skilled Nursing News that additional oversight without necessary assistance will not improve resident care.  In a longer written statement, he wrote: 

“Those who continue to criticize the nursing home sector are the same people who refuse to prioritize our residents and staff for resources that will help save and improve lives. Additional oversight without corresponding assistance will not improve resident care. To make real improvements, we need policymakers to prioritize investing in this chronically underfunded health care sector and support providers’ improvement on the metrics that matter for residents.  

“Long term care was already dealing with a workforce shortage prior to COVID, and the pandemic exacerbated the crisis. We would love to hire more nurses and nurse aides to support the increasing needs of our residents. However, we cannot meet additional staffing requirements when we can’t find people to fill the open positions nor when we don’t have the resources to compete against other employers.  

“It’s time to stop blaming nursing homes for a once-in-a-century pandemic that uniquely targeted our residents and vilifying the heroic caregivers who did everything they could to protect the residents they have come to know as family. Together, we should focus on meaningful solutions that can attract and retain the frontline heroes we need and strengthen delivering the quality of care and services that our nation’s seniors deserve. Providers are dedicated to learning from this pandemic, renewing our commitment to our seniors, and offering solutions that will improve the quality of care in our nation’s nursing homes. With the proper resources and support, we can transform our nation’s nursing homes.”

On February 22nd,  Mr. Parkinson sent a letter on behalf of AHCA/NCAL to Congressional leadership thanking them for their continued support of long term care residents and staff but urging them to take additional steps to ensure the safety and protection of America’s most vulnerable.  In the letter,  he outlined the association’s specific requests of Congress that would provide nursing homes and assisted living communities with the resources necessary to combat COVID-19 and address critical challenges brought on by the ongoing pandemic. Specifically, in the upcoming appropriations bills, AHCA/NCAL is calling for replenishment of the Provider Relief Fund with $20 billion allocated to long-term care, as well as an extension to the current delay of Medicare sequestration cuts and the recoupment of Medicare Accelerated and Advance payments. 

He wrote that

“[n]ursing homes and assisted living communities are facing the worst job losses among all health care professions, and the shortage is impacting seniors’ access to care. More than half of nursing homes were limiting new admissions in recent months—at a time when overwhelmed hospitals needed our assistance to free up precious beds due to the Omicron surge.

 .           .          . 

Long term care residents and staff have been among the hardest hit by the pandemic, as the virus uniquely targeted older adults with chronic conditions and exposed long-standing issues within the industry. Chronic government underfunding coupled with workforce recruitment challenges were exacerbated by the global crisis. The number of long term care facilities forced to limit admissions or close altogether because of staffing shortages and financial concerns continues to grow." 

Katie Smith Sloan, LeadingAge president and CEO, called on officials to keep in mind Medicaid’s insufficiencies when it comes to covering the cost of service:

“We know that transparency, quality improvement, and workforce investments are critical to building better nursing homes for America’s older adults and families,” Smith Sloan said in the statement. “Yet Medicaid, the dominant payer of long-term care services, doesn’t fully cover nursing homes’ cost of quality care. Regulations and enforcement, even with the best intentions, just can’t change that math.” 

On the other hand, the Long Term Care Community Coalition (LTCCC) likened the proposed changes to “the biggest and most positive news for nursing home residents in the 35 years since Ronald Reagan signed the Nursing Home Reform Act.”

CMA Senior Policy Attorney Toby S. Edelman said the federal government’s agenda tackles issues that have “plagued” the nursing home industry for decades.

“For years, we have watched as an increasingly sophisticated and corporatized industry has, too often, cut back on staffing and essential services to maximize profits,” Richard Mollot, executive director of the Long Term Care Community Coalition (LTCCC) said in a statement. “We are profoundly grateful to the [p]resident for taking this bold stand for vulnerable residents, their families, and American taxpayers, who foot the bill for most nursing home care.”

Mollott’s comments about a “corporatized industry” echo the White House’s criticism of private equity ownership of nursing homes and practices that make it difficult for consumers and watchdogs to track corporate ownership of facilities. The Biden administration is seeking to address these issues with provisions related to greater transparency, heightened penalties and standards related to “corporate competency.”

President Biden's remarks in the SOTU address:

 And as Wall Street firms take over more nursing homes, quality in those homes has gone down and costs have gone up.  

That ends on my watch. 

Medicare is going to set higher standards for nursing homes and make sure your loved ones get the care they deserve and expect. 

We’ll also cut costs and keep the economy going strong by giving workers a fair shot, provide more training and apprenticeships, hire them based on their skills not degrees. 

 

More is not Always Better - CMS Adds Staffing Information to Care Compare

The Centers for Medicare and Medicaid Services (CMS) recently announced that it will add data on staff turnover rates and weekend staffing levels to its Care Compare website, giving consumers another tool when choosing a nursing home.  The official Medicare website, previously called Nursing Home Compare,  offers up to five-star ratings of nursing homes based on health inspections, staffing, and quality measures. Users can search for nursing homes by location and directly compare one institution to another.  

CMS will post the following additional information for each nursing home on its website:

• Weekend Staffing: The level of total nurse and registered nurse staffing on weekends provided by each nursing home over a quarter. 
• Staff Turnover: The percent of nursing staff and number of administrators that stopped working at the nursing home over a 12-month period. 

CMS will begin adding the information to the Care Compare website in January, but the information will not be incorporated into the rating system until July 2022. 

The staffing information could not come at a more meaningful time.  Nursing homes are plagued by chronic understaffing and high turnover rates.  The problem has existed for years, but is exacerbated by the COVID-19 pandemic. A study reported in Health Affairs found that the turnover among nursing staff was 94 percent in 2017 and 2018 and mean turnover rates were as high as 140.7 percent among registered nurses, 129.1percent among certified nursing aides and 114.1 percent among licensed practical nurses. 

CMS previously noted a relationship between turnover and ratings. CMS noted in a memo that:

"facilities with lower nurse turnover may have more staff that are familiar with each resident’s condition and may therefore be more able to identify a resident’s change in condition sooner. In doing so, the facility may be able to implement an intervention to avoid an adverse event, such as a fall, acute infection, or hospitalization, which are indicators of quality. Similarly, facilities with lower nurse turnover may be more familiar with the facility’s policies and procedures and can potentially operate more efficiently and swiftly to deliver a higher quality of care to residents. Lastly, facilities with lower administrator turnover may have greater leadership stability, direction, and operations, which may help staff provide care more consistently or effectively to residents."

Regardless of the reasons for the association between turnover and quality, CMS acknowledging the relationship is encouraging.  

CMS has also acknowledged that  the additional information is important and is thus valuable to consumers.  For example, regarding weekend staffing, CMS acknowledged that consumers may not realize that nursing home staffing levels can vary on weekends. CMS hopes to encourage facilities to hire more weekend staff by adding weekend staff numbers to the nursing home rating system.

The fundamental underlying question, though, is whether adding additional information will help transform a questionable and unreliable system into a more meaningful system for consumers.  There is good reason to remain skeptical; there are numerous reports and examples suggesting that the federal ratings are inaccurate or misleading.  Consider the following:   

• NYT: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public;
• Nursing Homes Create Phony Diagnoses to Sedate Patients with Dangerous Drugs, Doubling Risk of Death;
• Nursing Home Compare Does Not Accurately Reflect Patient Safety In Nursing Homes;
• Half of Most Dangerous Nursing Homes Remain Treacherous for Residents After Homes Are Cleared By Regulators.

Worse, even if information regarding nursing homes is more accurate, it does little to help the most vulnerable seniors, those being transferred from acute care in a hospital to a nursing home for rehabilitation; patients are simply given little guidance or information to help them direct accurately their own care decisions: 

• Patients Are Not Given Quality-Of Care Information When Discharged From Hospitals to Nursing Homes.

Providing additional information through Care Compare will only be comforting for consumers and planners when the reporting deficits underlying the system are fixed, and seniors are provided quality of care information prior to transfer. 

Industry reaction to the change has been "mixed," according to Amy Novtney, writing for Mcknight's Longterm Care News.  David Grabowski, professor of healthcare policy at Harvard Medical School, told  industry stakeholders during a LeadingAge conference call, that the timing of the change “feels like a gut punch to nursing homes who are really struggling right now.”

Grabowski called on providers, however, to view the move as a positive development for the industry in the long run. Grabowski said the data could provide benefits such as shedding light on the fact that there aren’t staff available to work on the weekends, that turnover is high and that there’s a high use of contract nurses. That, in turn, could lead to policy changes.

According to Novtney, Grabowski continued: 

“I do think longer term this data will add value and can serve as a signal to all of us that we need to invest more in direct care staff. We get the turnover we pay for and since we aren’t paying enough, we’re seeing high turnover. That’s not something nursing homes can fix on their own. I really believe we need more reimbursement from Medicaid and Medicare to make that happen.”

Other industry associations agree that the decision’s timing is unfortunate given the ongoing challenges related to the pandemic. 

Others criticized the addition information as impotent to improves staffing issues. “While we support transparency and agree that staffing hours and turnover metrics are important, more reporting will not solve this issue,” the American Health Care Association/National Center for Assisted Living said in a statement to McKnight’s this week. “The addition of this reporting requirement when we are in the middle of the worst labor shortage the nursing home sector has ever faced is tone deaf. We need public health officials to do more than acknowledge these challenges, but stand up to address them. By offering funding and policy solutions that will help us attract and retain the caregivers we so desperately need, policymakers can ensure nursing home residents are well supported.”

To read CMS’s announcement about this new policy, click here.

NYT: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public."

The headline of a  recent New York Times article posed succinctly the challenge nursing home rating systems present to an unwary public: "Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public."  The subtitle to the article indicts the industry: "Nursing homes have manipulated the influential star system in ways that have masked deep problems — and left them unprepared for Covid-19."  The role of government, from benign neglect, incompetence, and/or complicity, is also discussed in the article.

The article is rich with examples of institutions with fundamental problems and flaws that nonetheless attain "high marks" and good ratings, masking dangers and risks to unwary consumers.  For readers of this blog, this reality is not revelation.  The case for aging in place could not be more profound.

The article is largely reprinted below [tables, pictures, and graphics omitted]:  

Infection Control Citations Exceed 12,000 Amid Pandemic; SNF Ratings Stagnant

Despite more than 12,000 infection control-related citations issued during the COVID-19 pandemic, most U.S. nursing homes saw no  ratings change in updated Five-Star guidance published recently, according to an article in McKnight's Long-term Care News.

According to McKnight's, Formation Healthcare Group found in analyzing the data that the prevalence of citations has not changed drastically during the pandemic, with the average health tags cited per facility dropping to 8.1 from a prior average of 8.2.  

Among more than 22,000 citations issued, more than 12,000 were related to infection control, a factor the Centers for Medicare & Medicaid Services (CMS) initially said would not affect star ratings used by the public. The agency reversed course in December.  Many were critical of the reversal, even as the new ratings were published.

Jessica Curtis, Formation’s managing partner, explained to McKnight's that infection control citations are being driven by the mandated infection control-focused surveys during the pandemic. A group of six frequent F-tags accounted for more than 8,000 citations.

Despite the inclusion of infection measures in the star calculation, nearly 12,000 facilities saw no change in their health inspection ranking, according to an analysis by Steven Littlehale, Chief Innovation Officer at Zimmet Healthcare Services Group. .

About 2,800 gained one star or more for improved RN staffing ratings, while fewer than 2,400 saw that factor drop one star or more. Nationally, staffing levels were higher in January 2021 than they were in January 2019 and 2020.  In 2019, one-third of institutions saw a rating drop specifically due to staffing levels, thanks in part to a new survey method preventing institutions from misrepresenting their level of staffing.  In all other categories, the number of institutions gaining a star or more was essentially the same as the number losing one or more.

Overall, 9,937 facilities, or about 66% nationwide, kept the same overall star rating.  

“From a macro view, this is a lot to do about nothing,” Littlehale told McKnight’s Long-Term Care News. “If you’re the provider holding the bag, being dropped from a preferred provider network, triggering loan covenants or consternation from a family member, it means something.” 

He noted that the update includes two quarters worth of COVID-impacted outcomes. He suspects a “national dip” is more likely once all of the 2020 MDS-based outcomes are calculated.

As for the “abuse” icon adopted by CMS in 2019, 459 facilities will see the icon disappear from their listing based on the latest numbers, while 262 facilities will get one.  That doesn't suggest that the incidence of reported abuse has declined, however, just that the number of facilities with a reportable incidence of abuse has declined.   Moreover, while the rating system is helpful in comparing institutions, the rating system does not accurately reflect resident safety.   

The latest star ratings also reveal major variations in how and how well states are performing their inspection duties.  “The percentage of facilities receiving deficiencies during infection control surveys vary considerably across the states,” Littlehale said. “Some states see over 60% of their facilities with IC deficiencies, while other states (are) as low as 6%.”

Littlehale told McKnight's  that the wide variation was not directly attributable to COVID outbreaks.

Analysts at Formation Healthcare likewise found discrepancies between states in reporting. Shockingly,  several states are far behind in conducting health inspections. For example, Oregon (37%), Georgia (31%), Maryland (26%) and Virginia (21%) led the nation in the share of SNFs last inspected more than two years ago.   In other words, in some states, the data on nursing homes may be inaccurate or outdated for almost one-third of the state's institutions. 

The pandemic, governments' response to the pandemic, and institutional safety and quality are only making more arguments for the already overwhelming case for aging in place.  Plan now. 

Only 37% of Long-term Care Facilities Staff Vaccinated for COVID-19

While residents of nursing homes and their caregivers have been considered a top priority for COVID-19 vaccination, only 38% of nursing home staff accepted shots when they were offered.  This according a survey conducted by the Centers for Disease Control and Prevention (CDC). 

Anecdotal reports have been circulating for weeks that nursing home staff members were turning down vaccination offers, but these are the first national-level figures.  Of course, historically, nursing homes trail other health care institutions in the staff penetration of vaccines (see CDC Reports That SNF Workers Most Likely Among Health Care Workers to Forego Recommended Vaccinations). 

Dr. Radhika Gharpure, lead author of the study and a member of the CDC’s Vaccine Task Force wrote, "These findings show we have a lot of work to do to increase confidence and also really understand the barriers to vaccination amongst this population." The report cited previous polling data to suggest why employees have been declining vaccines. Many raised concerns about vaccine side effects. Others said they didn't want to be among the first to receive the vaccines, which were first authorized in December. Some said they didn't trust the government, or referenced false claims about the shots.

Residents, meanwhile, have been much more accepting of vaccines, with 78% receiving at least one shot, according to the new report, which examined vaccination rates at more than 11,000 long-term care facilities nationwide between Dec. 18 and Jan. 17.

Source, "Roughly one-third of long-term care staff vaccinated through federal program: CDC," The Hill (2/1/21).

Long-term Care Industry Forecast to Lose $94 Billion Amid Pandemic

The long-term care industry will lose $94 billion over a two-year period as a result of COVID-related costs and revenue losses, according to a new forecast from the nation’s largest nursing home association. 

The American Health Care Association/National Center for Assisted Living detailed its projections Tuesday. Its analysis found that providers spent an estimated $30 billion in 2020 on COVID-related costs, such as hiring more staff members and purchasing personal protective equipment. That number is projected to be $30 billion again for 2021.

In terms of revenue, nursing home operators have lost $11.3 billion in 2021. Provider losses are projected to rise to $22.6 billion in 2021, according to AHCA/NCAL.  

The combination of revenue declines and increased costs resulted in 143 facility closures and mergers in 2020, the report stated. That’s projected to reach 1,670 closures/mergers in 2021 if business conditions do not change. 

AHCA/NCAL is an industry advocate, of course, but it claims the findings justify the need for additional and immediate support for long-term care. The association called for allocating $20 billion to the long-term care industry through enhanced Federal Medicaid Assistance Percentage (FMAP) for long-term services and support, or through a dedicated portion to the Provider Relief Fund, top priority for vaccine distribution and access to testing and supplies. 

“Congress and the Biden Administration must prioritize the long-term care industry and ensure the dedicated front-line workers of these facilities have the necessary resources to protect their residents and themselves,” AHCA/NCAL warned.

Of course, consumers, in the end have the most to lose.  Concerns regarding quality care, security, and staffing, for example, are only heightened when the industry is not profitable.  

Source:  D. Brown, "Long-term care to lose $94 billion due to pandemic: forecast," McKnight's Long-term Care News.

Nursing Home Penalties for Noncompliance Expected to Rise

Nursing home operators are on high alert for potential rule changes regarding civil monetary penalties (CMP's) after a lawsuit was filed against federal health agencies Sunday that targets a 2017 rule that relaxed CMPs for providers, this according to an article in McKnight's Long-term Care News.

The AARP Foundation on Tuesday announced the lawsuit filed against the Department of Health and Human Services (DHS) and Centers for Medicare & Medicaid Services (CMS). The litigation was filed on behalf of the National Consumer Voice for Quality Long-Term Care and California Advocates for Nursing Home Reform, which are listed as plaintiffs in the suit. 

The groups are targeting a July 2017 directive from CMS that called on state surveyors to use per instance or per day CMPs for non compliant providers, depending on the timing of the noncompliance in relation to the survey, if residents were harmed or abused, if the facility had good compliance history and whether noncompliance was persistent when imposing a CMP.

The lawsuit alleges the policy change “severely weakened” the Nursing Home Reform Act of 1987 by “allowing nursing facilities to knowingly let deficiencies persist for days, weeks or even months while facing only a per instance CMP.” 

“Because this penalty amounts to a nothing more than the ‘cost of doing business’ or a veritable ‘slap on the wrist,’ CMS has eliminated the incentives for facilities to self-police and take remedial measures at the earliest point possible,” the lawsuit alleges. 

The implications of the lawsuit could mean that providers may face escalated fines if they were out of compliance during the coronavirus public health crisis, warned Wilson Blount, an Alabama based attorney who specializes in regulatory and healthcare law: 

“If the plaintiffs prevail, it is possible CMS could impose CMPs on operators and providers for every day they were out of compliance for COVID-19 infection control practices, as opposed to each instance. This scenario could represent a substantial increase in liability for them.”  

Brendan Williams, lawyer and president and CEO of the New Hampshire Health Care Association, noted that incoming HHS Secretary Xavier Becerra was among those who previously criticized the CMP policy change.

The timeframe for increases, of course, resulting only from litigation is uncertain.  The lawsuit, nonetheless, portends legislative review, and makes policy change more likely. The industry is taking note.  Hopefully, lawmakers will too.  

The New Year Finds Nursing Homes Opposing New Minimum Staffing Requirements and Training Requirements for Dementia Care Workers

Nursing home providers are opposing proposed national legislation that would require skilled nursing facilities to meet minimum staffing requirements, and in New Hampshire  are looking to amend a newly effective state law that sets minimum training requirements for facility staff members who care for people with dementia, including Alzheimer’s. The industry is, instead, calling on lawmakers to find solutions to address what they characterize as a "workforce crisis" throughout the industry.

Sen. Richard Blumenthal (D-CT)  recently introduced The Quality Care for Nursing Home Residents Act (S.2943), which would revise minimum staffing requirements for skilled nursing facilities that participate in the Medicare and Medicaid programs.  The legislation has been referred to the Committee on Finance.  Rep. Jan Schakowsky (D-IL) also introduced the proposal (H.R. 5216) in the House. That legislation has since been referred to the House Ways and Means and Energy and Commerce committees.

Mark Parkinson, president and CEO of the American Health Care Association, said in a statement, that the legislation, without additional funding, would make it “impossible for facilities to implement new mandates” without risking additional closures.

“The skilled nursing profession has serious concerns about the practical implementation of the proposals in this bill. Today, our profession suffers from a critical workforce shortage and setting minimum staffing levels will not solve that issue. We need solutions like loan forgiveness that will help attract more workers to the long term care profession.”

He said that while the organization appreciates the interest in quality of care, more discussions are needed about “real solutions like the proposals that will allow reinstatement of CNA training programs. “These types of bipartisan solutions can help make meaningful progress and ensure access to care for seniors and individuals with disabilities across the country,” he said.

LeadingAge CEO and President Katie Smith Sloan said, though the proposed bill is “laudable,” it doesn’t address the true issue facing providers:

“There are simply more jobs open than can be filled across the U.S. In the words of one of our members: ‘We don’t even have people to interview, much less hire. Last year [2017], we had 9,000 RN, LPN, and CNA jobs in our state and only 2,500 applicants.” 

Smith Sloan added that the bill does not address the reason for the staffing shortages, which include demographics (America’s aging population) and money. She also urged lawmakers to support the Nursing Home Workforce Quality Act (H.R. 4468), which she said would “provide an opportunity to build a crucial talent pipeline.  According to Smith Sloan:

“Without mechanisms that address two significant issues, the availability of people to provide the care as well as the growing challenges of financing (Medicaid, which is the primary public source of funding for the majority of nursing homes, is inadequately funded, so providers are not reimbursed for the costs of care), this effort has small chances of achieving its desired end” 

The proposed legislation was commended by the National Consumer Voice for Quality Long-Term Care.

Meanwhile, providers in New Hampshire are looking to amend a newly effective state law that sets minimum training requirements for facility staff members who care for people with dementia, including Alzheimer’s. The law, which went into effect January 1st, was part of the state budget passed by the state lawmakers in September. The minimum training requirements apply to staff members working in residential homes or community-based programs with people who have forms of dementia, according to an Associated Press report. Direct-care workforce staff members, including staff at nursing homes and assisted living facilities, must also complete the training requirements, the Union Leader reported.

“We are committed to culturally competent dementia care. We are already providing it. We will comply with any legal mandate, but do want it to be practicable,” Brendan Williams, president and CEO of the New Hampshire Health Care Association, told McKnight’s. 

Williams said the organization wants the law to be more “practicable and prospective” for providers. One change providers are pushing for would allow for the use of a variety of training resources for staff members and not just rely on the Alzheimer’s Association curricula, as the current law requires. 

He argued that “no additional funding accompanied this new mandate for its Medicaid share-of-cost.”

“So we are wary of new unfunded mandates that may make it harder to recruit and retain staff.  An early state implementation draft would apply the new law even to volunteers,” Williams said. 

Williams added that the law is redundant, noting that federal regulations already require facilities and staff members to undergo training and provide “proper dementia care” to residents. 

He also noted that New Hampshire state law requires licensed nursing assistants to undertake 100 hours of training, which includes training in emotional support for how to respond to residents with dementia or cognitive impairments. 

“Hopefully, we can get to a result here that works for everybody,” Williams said. 

The foregoing demonstrates that the year 2020 is likely to be a year in which nursing home providers, legislators, regulators, and senior advocacy groups jockey for position in an effort to reform nursing home care to improve quality and accountability.  

__________________________________________________________________

The foregoing article draw from several articles, the most important being a pair of articles published in McKnight's Long-term Care News: 

• New bills call for nursing home minimum staffing requirements;
• Providers want to change new state law that sets minimum training requirements for dementia care staff.

Missouri Receives a Near Failing "D" on Nursing Home Report Card

Families for Better Care ("FBC"), recently  published its state-by-state nursing home report card. Missouri received  a near failing "D" grade, ranking thirty-ninth (39th) among the fifty states. The only bright news is that current ranking represents an increase in Missouri's relative ranking, up from  fortieth last year, and an improvement to Missouri's near failing "D" grade this year from a failing "F" last year. 

FBC scores, ranks, and grades states on eight different federal quality measures ranging from the number of caregiver hours residents received on a given day to the percentage of nursing homes cited severe deficiencies. The Report Cards include information from the newly revamped Nursing Home Compare reporting, requiring nursing homes to prove staffing levels, a sharp departure from previous administrations that accepted, without proof, representations from nursing homes regarding sufficiency of staffing.  More than one-third of nursing homes saw CMS ratings drop under the new, more deliberate, and more reliable system.

Regarding the Missouri's ranking, the Report Card noted:

• Missouri’s nursing home care climbed eight spots and moved up one full letter grade; ranking No. 39 overall and posting the state’s first non-failing grade in report card history.
• Missouri scored failing or below average grades in 5 of 8 nursing home quality measures.
• Less than 40 percent of Missouri’s nursing homes provide above average direct care staffing, resulting in a high percentage of understaffed homes.
• Missouri nursing home’s professional nursing services are among the most depleted in the nation as facilities provide fewer than 81 minutes of licensed nursing care per resident daily.
• Severe deficiencies in Missouri’s nursing homes climbed higher following the previous reporting period’s decline.
• Despite Missouri’s glaringly high percentage of facilities with deficiencies, the state’s ombudsmen verified 55 percent fewer registered complaints—pushing the state’s ranking into this year’s Top 10 states for this category.
• Missouri’s nursing home care ranks at the bottom of the Central Plains Region

Families for Better Care, Inc., is a Texas-based nursing home resident advocacy group dedicated to creating public awareness of the conditions in our nation’s nursing homes and other long-term care settings and developing effective solutions for improving quality of life and care.

“This year’s nursing home report card exposed an alarming trend that should serve as a wake-up call for us all,” said Brian Lee, Families for Better Care’s executive director. “Nursing home inspection ratings have soured.”

According to survey data collected by federal and state governments, fewer than 30 percent of nursing homes were capable of scoring an above average inspection rating, that’s nearly a 15 percent decline since the last reporting period.

“America’s nursing home care is worsening,” Lee exclaimed. “Erratic inspection performance is, by and large, traceable to a singular reason, the failure by so many nursing home operators to hire enough staff to safely care for residents.”

While Families for Better Care has repeatedly warned that nursing home staffing shortfalls are a grievous problem, the organization is calling for a new solution, one that the nursing home industry should welcome and would be embraced by residents and their families.

“The best way to heal America’s nursing homes is to appropriate additional funding to be used solely for hiring more staff,” Lee stated. “No more excuses, no more threats, no more scare tactics from lobbyists, politicians, operators—or anyone else for that matter—it’s time to do what’s right and stop the infliction of our loved ones with unnecessary injury or harm because of negligent policy making.”

According to the report’s findings, the majority of nursing homes (54 percent) were incapable of scoring an above average staffing rating. Residents received just 2 hours and 33 minutes of direct care daily—an average that’s unchanged from the previous report card. Nearly every state—with the exception of Alaska, the District of Columbia, and New Mexico—suffered a net loss in the percentage of nursing homes with above average staffing levels over the past three report cards.

“Before any checks are written to nursing homes, a rock solid staffing standard must accompany any new funding; otherwise, taxpayer monies could end up being diverted to subsidize the lifestyles of the rich and not-so-famous instead of getting back to the residents and their care,” Lee stated. “Too many nursing homes have demonstrated an unfaithfulness in self-governing their staffing levels to safely care for residents, so it’s time we help them out a little, as a nation, by federally mandating the most stringent staffing requirement that leaves no loopholes through which violators could squeeze.”

 As for the state’s nursing home rankings, the states highly rated in past report cards, once again, dominated the top spots while the chronic underachievers continued to disappoint.

This year’s top nursing home states were Hawaii, Delaware and Alaska while Texas, North Carolina, and Illinois scraped the bottom of the barrel. States with the biggest gains in overall ranking were New York (↑20), Mississippi (↑17), and Nevada (↑14) while Vermont (↓27), Massachusetts (↓24), and Arkansas suffered the biggest losses.

Three of the last report card’s best nursing home states slid out of the top ten, including Vermont, which plunged from No. 3 to No. 31 overall. The remaining states were New Hampshire (down from No. 2 to No. 11) and Florida (falling seven spots from No. 6 to No. 13).

Other key findings included:

• 500,000 elderly living in dangerous conditions—Nearly half-a-million elderly nursing home residents are living in facilities that tolerate below average staffing scores.
• Abuse and neglect vexes nursing home quality—1 in 5 nursing homes abused, neglected, or mistreated residents in almost half of all states for the second consecutive report card.
• States that are downright awful—Texas, Illinois, New Mexico, Michigan, Oklahoma, Louisiana, and Indiana consistently linger at, or near, the bottom in state nursing home care, scoring failing grades in every nursing home report card.

Families for Better Care argues that America desperately needs a nursing home cultural transformation, and the best way for that to happen is for nursing homes to saturate facility hallways with a brigade of well-trained frontline caregivers.

“Nursing home staffing levels must be ratcheted up if care is ever going to improve,” said Lee. “Since nursing homes rely so heavily on federal and state reimbursements, it’s incumbent upon us to pull up our bootstraps and find a way to inject much needed staffing currency as soon as possible.”


Readers of this blog should not be, and probably are not, shocked by either the report card grades, or the news that nursing home quality is generally worsening. These are compelling, but hardly new, reasons for implementing an Aging in Place plan.  If you haven't already, ask to attend an Aging in Place workshop.  

More:

State's [Pennsylvania] Failing Grade for Nursing Home Care is Unconscionable
Nursing Home Care Declines in Florida
Illinois Nursing Homes Rank Third Worst in the Country
Texas Ranked Last on 2019 Nursing Home Report Card
Delaware Ranked No. 2 on Nursing Home Report Card
Hawaii Grabs Nursing Home Report Card's Top Spot
Strong Staffing Boosts Alaska To No. 3 On 2019 Nursing Home Report Card
Rhode Island Slips to No. 4 On 2019 Nursing Home Report Card
Utah Ranks No. 5 On 2019 Nursing Home Report Card
Idaho Ranks No. 6 in 2019 Nursing Home Report Card
Arizona Ranked No. 7 on 2019 Nursing Home Report Card
Washington D.C. Surges To No. 8 On 2019 Nursing Home Report Card
Maine Drops to No. 9 on 2019 Nursing Home Report Card
North Carolina Drops to Second Worst in Nursing Home Quality