Sarah Varney, Kaiser Health News
President Joe Biden’s top Medicare official suggested Wednesday that forthcoming rules to bolster nursing home staffing won’t be issued under a4 mechanism, known as interim final rules, that would allow regulations to take effect more or less immediately.
“While we want to move swiftly, we want to get comments from stakeholders,” Chiquita Brooks-LaSure, administrator of the U.S. Centers for Medicare & Medicaid Services, said in an interview about the overhaul Biden promised during his State of the Union address.
“Medicare is going to set higher standards for nursing homes and make sure your loved ones get the care they deserve and that they expect,” Biden said.
But Brooks-LaSure suggested the administration’s sought-after nursing home changes are not considered urgent even as nursing homes and other long-term care facilities register shocking numbers of covid deaths. A KFF analysis estimated that more than 200,000 residents and staff members of long-term care facilities had died from covid as of Jan. 30, amounting to at least 23% of all U.S. deaths.
“When we do interim final rules, those tend to be things that are absolute emergencies,” Brooks-LaSure said when asked whether they would be considered for nursing home staffing levels, “or tight timelines.”
The White House this week said CMS will first study the issue and then propose minimum staffing standards “within one year,” but officials have been otherwise vague about timing. When issuing regulations, federal agencies generally release a proposal and then seek public feedback before finalizing it. The entire process can take months or even years. But there’s an exception that allows newly issued regulations to kick in much faster even if the agency allows for public comment — a move that Biden officials have exercised recently when issuing a covid vaccine mandate for health workers and implementing a ban on surprise medical bills that took effect this year.
Marjorie Moore, executive director of Voyce, a St. Louis nonprofit that advocates for long-term care residents, said “the speed of this is a little frustrating.” She said she’s seen situations where residents hadn’t had their diapers changed for days because staffing shortages are so dire.
“That’s not what we expect for our most vulnerable,” she said.
Still, she said, “I think one year, knowing that this is government stuff, may be the best we can hope for. That’s not going to be an overnight thing. We just knew there was no way.”
Biden’s proposal would amount to the biggest increase in federal nursing home regulation in nearly four decades. CMS could pursue several elements under the agency’s existing authority, such as investigating the role of private equity in the sector, increasing its scrutiny of the poorest-performing facilities, and making public more information about facilities’ finances and operators.
Some ideas would require congressional action. They include allowing CMS to ban from the Medicare and Medicaid programs those facilities owned by people or corporations with subpar track records and to increase penalties on poor-performing facilities from $21,000 to $1 million.
Most states have standards for nursing home staffing levels, but the minimums vary widely. Some states have been criticized for granting exemptions so facilities can provide less care for each resident.
Forthcoming federal rules on staffing must be designed to avoid “unintended consequences,” said David Grabowski, a professor of health care policy at Harvard Medical School, who is supportive of the effort. “Figuring out the right kind of threshold for facilities is going to be challenging.”
He said unintended consequences might come from boosting staffing levels by disproportionately hiring nursing assistants, who earn less and have limited responsibilities, at the expense of positions for licensed practical nurses and registered nurses, or depleting resources in other important areas like housekeeping.
Brooks-LaSure declined to say whether CMS would allow nursing homes to seek exemptions, instead arguing that minimum staffing rules will “help with retention.”
“We’re hearing from staff over and over about the strain that staffing is placing on them personally and on residents. And we have got to address the quality of care for people who are enrolled in our programs,” she said. “We want to work with industry, absolutely, to get there, but everything we hear is about what kind of strain the insufficient staffing is putting on residents and on the workers themselves.”
The industry, for its part, hasn’t minced words in criticizing Biden’s plan, especially after the pandemic exacerbated existing workforce retention problems. A February study in JAMA Health Forum found that compared with other parts of the health sector, nursing homes experienced the greatest relative wage growth during the pandemic yet saw the biggest drops in employment.
“By singling out nursing home care for attack, President Biden is only further demoralizing struggling providers and their workers,” Brendan Williams, CEO of the New Hampshire Health Care Association, which lobbies for long-term care facilities, said in a statement. Mark Parkinson, CEO of the American Health Care Association in Washington, D.C., said in a statement that “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.”
Central to Biden’s plan is getting facilities to open their books to make public information about their opaque finances and operating structures. Among other moves, CMS plans to create a database to identify nursing home owners and operators.
There is an international movement to more closely monitor and improve nursing home staffing levels, staff pay, and quality of care.
To achieve that, 106 investor groups and labor unions in the U.S., Canada, and Europe that manage more than $3 trillion in assets have published staffing, pay, and quality goals for nursing homes. They are pressing large companies and real estate investment trusts that operate nursing homes to publicly disclose whether they are complying with those targets. They seek greater financial transparency in nursing home operations.
Some of the investor groups have told nursing home operators that if they fail to meet the expectations, they may take shareholder actions against management and ultimately divest from the companies.
But those investors and unions are facing tough challenges in getting the information they seek, said Adrian Durtschi, head of the health care section at UNI Global Union, which spearheaded the international effort.
He noted greater cooperation from nursing home operators in European countries with more heavily regulated national health care systems and stronger unions. It’s been slower in the U.S., he said, where there are so many private nursing home companies.
“Transparency is key for investors to make good investments, and unions need it for good negotiations,” Durtschi said. “But it’s generally not easy to access the information. Some companies are willing to disclose it, while others are more resistant.”
Biden’s plan could inspire others to enact similar disclosure laws and regulations, he added.
For instance, French authorities are under pressure to toughen nursing home oversight following revelations of severe quality-of-care problems at nursing homes run by Orpea, a large publicly traded operator of high-end facilities. As a result, some investment funds have reduced their nursing home holdings.
“Demands for higher standards, more transparency, and more union rights,” Durtschi said, are “great to see.”
In the U.S., Brooks-LaSure said CMS can use its leverage. “As part of our requirements to participate in the Medicare and Medicaid program, we have authority to require entities to report information to us,” she said. However, Grabowski, noting the industry’s skill at staying steps ahead of the government and weak agency enforcement, said that “it sounds like a great objective, but it’s going to be really challenging.”
“I’m a little skeptical they’ll make the necessary investment,” he said of CMS.
One advocate for vulnerable older adults, who’ve especially suffered during the pandemic, saw hope in Biden’s statement.
“Nursing homes getting literally three lines in the State of the Union is profound,” said Dr. Michael Wasserman, a geriatrician in California. “Let us stop and realize that the White House has recognized improving quality in nursing homes as a priority.”
KHN (Kaiser Health News) is a national newsroom that produces in-depth journalism about health issues. Together with Policy Analysis and Polling, KHN is one of the three major operating programs at KFF (Kaiser Family Foundation). KFF is an endowed nonprofit organization providing information on health issues to the nation.
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