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.

Annual Gift Tax Exclusion for 2022 Increases to $16,000.00

Due to surging inflation, the  Internal Revenue Service (IRS) announced that the annual exclusion for 2022 will be $16,000, up from the current $15,000. 

The rate of inflation hit a 31-year high in October.  Shortly thereafter, the IRS announced adjustments to certain inflation-indexed tax provisions for returns filed in 2023.

The inflation adjustments for tax years 2021 and 2022 inform taxpayers what they might expect going forward. In the event that inflation isn’t temporary, the adjustment determinations now will be all the more important come tax time in 2023. The other changes follow:

New standard deduction, tax brackets, gift tax and EITC

• The standard deduction rises to $25,100 for married couples filing jointly in their 2022 returns. That’s a $300 increase. It rises to $25,900 for 2023 returns, an $800 rise.

• For single filers and married individuals filing separately, the standard deduction in 2021 returns climbs to $12,550, a $150 increase. The following year, the deduction increases to $12,950, a $400 increase.

• The income levels applying to each tax bracket are increasing up and down the income scale. For example, in 2021 returns, the top 37% rate applies to individuals making $523,600, or $628,300 for married couples filing jointly. In 2022 returns, the richest households face the top rate for incomes above $539,900 or $647,850 for married couples filing jointly.

• The annual exclusion on the gift tax rises for the first time in several years. From 2018 to 2021, $15,000 was the threshold before taxes applied on gifts, according to the IRS. It rises to $16,000 in 2022, with returns filed in 2023.

• The Earned Income Tax Credit, a credit for low- and moderate-income households, also increases. For example, the maximum credit for 2021 returns of qualifying households with three or more eligible children is $6,728. The following year, households with three or more kids will receive $6,935, the IRS said. The American Rescue Plan passed in March expanded the EITC’s rules, qualifications and potential payouts, particularly for workers without children.

Promissory Note Executed by Nursing Home Resident’s Daughter Is Not Illegal Third-Party Guarantee

The efforts of nursing homes to create and enforce filial responsibility, i.e., hold children financially responsible for a parent's long term care, even where state legislators have not enacted such legislation, is a frequent topic of articles on this blog:

• Filial Responsibility- Resident’s Son Not Liable for Breach of Contract Because He Did Not Cause His Mother to Be Ineligible for Medicaid;

• Judge Can Not Impose an ‘Unusual’ Condition on a Reversal of a Default Judgment in a Nursing Home Breach of Contract Lawsuit;

• Tortious Interference With Contractual Relationship Claim Most Recent Possible Remedy Nursing Homes can Employ Against Children of Nursing Home Residents;

• Conservator Owes Duty to Nursing Home to Timely Apply for Medicaid;

• Agent Under Power of Attorney Liable for Damages to Nursing Home for Breach of Contract;

• Conveyance to Son Was Fraudulent, But His Siblings May Also Be Liable Under Filial Support Law;

• Nursing Home May Sue Resident's Daughter for Breach of Contract.

Another recent example comes courtesy of a Kentucky appeals court which held that a promissory note executed by a nursing home resident’s daughter, agreeing to pay the nursing home for the resident’s outstanding expenses, is not illegal because there was no evidence her mother’s stay in the nursing home was conditioned on her signing the note. Roberts v. Mt. Washington Health Care, LLC (Ky. Ct. App., No. 2020-CA-1190-MR, Oct. 29, 2021).  Federal law provides that “a nursing facility must . . . not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility...” 42 U.S.C. § 1396r(c)(5)(A)(ii). 

Erma Basham entered a nursing home in 2018. She applied for Medicaid in 2019 and was approved, but she owed $34,742.26 in expenses for her care before her Medicaid application was approved. Ms. Basham’s daughter, Christy Roberts, executed a promissory note, agreeing to pay the nursing home monthly to pay down Ms. Basham’s bill. Ms. Roberts made one payment and defaulted on the note.

The nursing home sued Ms. Roberts. The trial court found Ms. Roberts had executed a valid promissory note and entered judgment in favor of the nursing home. Ms. Roberts appealed, arguing that the promissory note was illegal because under federal law, the nursing home cannot require a third-party guarantee of payment as a condition of admission or continued stay in the facility.

The Kentucky Court of Appeals affirmed in part, holding that the promissory note is not illegal. According to the court, there was “no testimony or other evidence of record apart from [Ms.] Roberts’ unsupported assertions indicating that her mother’s admission or continued stay at the appellee’s facility was conditioned upon [Ms.] Roberts executing the February 12, 2019 promissory note.” 

The court did find that the interest charged Ms. Roberts was too high and remanded the case to the trial court to enter a lower interest rate.

SSI and other Social Security Benefits Set to Increase 5.9% in 2022

People with disabilities receiving Supplemental Security Income (SSI) and other Social Security benefits will receive the biggest rise in their monthly payments since 1982.  The Social Security Administration  says that benefits will grow 5.9% in 2022.

The change is the result of an automatic cost-of-living adjustment, or COLA, tied to inflation, and is another indication of a post-pandemic surge in inflation.  The annual adjustment is based on the Consumer Price Index (CPI) from the U.S. Department of Labor’s Bureau of Labor Statistics which rose 5.4% in September from a year earlier, the largest annual gain since 2008.

With COLA, the maximum federal SSI benefit for individuals will be $841 per month in 2022, up from $794 this year. For couples, the maximum will be $1,261 next year, up from $1,191.

Beneficiaries may see payments that are greater than the federal maximum since some states chip in extra.

The new amounts will take effect in January for the nation’s 64 million Social Security beneficiaries and will start Dec. 30 for 8 million SSI beneficiaries.

The Social Security Administration said beneficiaries are usually notified by mail beginning in early December about their updated payment amount for the coming year and most people will also be able to view the information online through their Social Security account at that time.

In the last 10 years, COLA has increased by an average of 1.65% annually.

Senior Care Staffing Shortage Crisis- Nightmare Scenario Warns One-Half of Facilities Could Close

The shortage of staff in long-term facilities and home care agencies has gone from a problem to a crisis, according to Howard Gleckman,  a fellow at the Urban Institute.  Consider the following:

• Three rural nursing homes in Maine close because they cannot hire enough staff to maintain care for patients and residents.
• One of the oldest nursing facilities in Summit County, Ohio closed, citing an array of post pandemic financial difficulties, including cost of maintaining adequate staff. 
• A senior living facility in Camden County, Georgia was forced to close due to staffing shortage.  
• A nursing home in Oklahoma shuts its doors due to staff shortages.
• A nursing home in Kansas closes due to staff shortages.
• A new industry survey reports that only 1 percent of nursing homes and 4 percent of assisted living facilities (ALFs) say they are fully staffed, while 89 percent of nursing homes and 82 percent of ALFs report moderate or severe shortages.
• Fifty-eight percent of nursing homes and 28 percent of ALFs say they are limiting admissions because they do not have enough staff to care for residents.
• As many as one-half of all nursing homes and assisted living facilities in the nation could close within the next year, if the current staffing crisis is not alleviated, according to Washington Health Care Association CEO Robin Dale.

Gleckman notes that staffing shortages don't impact just nursing homes and assisted living facilities, but impact the entire spectrum of senior care.  For example, the operator of a Maryland home health agency claims it is turning away families looking for assistance because it does not have sufficient aides; “We cannot provide the care our clients deserve with the staff we have,” she told Gleckman.  

Fundamentally, though, as resources are spread thin across the entire health care industry, opportunities for cover and redundancy are disappearing.  Whether those opportunities are within or outside of a formal system, seniors are forced to rely upon less in the hopes that care quality will remain high. The reality is that a system can provide generally high quality care only when it's component parts work to support each other; hospitals support care institutions, care institutions rely upon a full complement of staff within a facility, and upon other outside institutions, to supplement and support care and accept patients best placed in the care of others.  

Many long-term care workers are leaving the health care profession entirely. Widespread shortages of low-wage workers in the hospitality industry give aides the opportunity to work for as much money—or even more—at jobs that are far less physically and emotionally demanding.

Gleckman also warns that these labor shortages appear to be growing at the same time the long-term care industry is confronting another equally important trend: consolidation. Not only are facilities closing, but operators are selling out. Small facilities being acquired by mid-sized chains and large chains are selling out to bigger ones, often owned by private equity firms.

How will these owners, often obsessively focused on the short-term bottom line, confront these labor shortages? It is hard to know, but the answer will be critically important to workers as well as to residents and their families.