The sometimes wretched state of American nursing home care grabbed the national spotlight in 2020 when COVID-19 swept through facilities across the country, starting with the Seattle nursing home where nearly 40 people died and many more became seriously ill.
Now President Joe Biden is proposing to act. And he’s not waiting for Congress to give its approval.
During Tuesday night’s State of the Union address, Biden formally announced a new initiative to regulate nursing homes more aggressively. The main goals are to make sure all facilities have enough staff and to shore up the care workforce while publicizing more information about nursing home operations and finances ― something that, Biden says, is essential at a time when investors are acquiring so many facilities.
“As Wall Street firms take over more nursing homes, quality in those homes has gone down and costs have gone up,” Biden said Tuesday. “That ends on my watch.”
The initiative hasn’t gotten a ton of attention outside of the trade media for health care, which isn’t surprising given everything else in the news and the fact that discussion of Biden’s domestic agenda continues to focus mostly on Democratic efforts to pass components of their Build Back Better agenda.
“It is ... the most important set of changes proposed in nursing home care since the 1987 nursing home law.”
- Toby Edelman, Center for Medicare Advocacy
But with those initiatives languishing, as leaders negotiate with holdout Sen. Joe Manchin (D-W.Va.) over a possible deal, regulatory action offers a surer way forward. And though there is only so much that Biden can accomplish on his own, experts and advocates who follow the nursing home industry say his initiative could offer the most far-reaching reforms of nursing homes in decades, going back to a landmark Ronald Reagan-era law that created the first national standards for care.
“It is, without question, the most important set of changes proposed in nursing home care since the 1987 nursing home law,” Toby Edelman, senior attorney at the Center for Medicare Advocacy, told HuffPost.
Why Advocates Are Thrilled
It’s not hard to see why these advocates are so enthusiastic. The pandemic exposed problems they have been screaming about for decades, such as high rates of bed sores and infections, not to mention reports of neglect and abuse.
Sometimes those calls led to action ― as they did in 2015, when the Obama administration announced it would be stepping up oversight of nursing homes through a combination of stricter safety requirements, more frequent inspections and more training for workers. But the Trump administration reversed many of those changes and cut back on penalties as part of its broader agenda to reduce regulations affecting the health care industry.
One provision of Biden’s agenda seeks to restore the Obama-era enforcement reforms. Another swath of Biden’s proposals would require the gathering and publication of more information about exactly who owns and manages nursing homes and how they manage their finances.
“We cannot meet additional staffing requirements ... when we don’t have the resources to compete against other employers.”
- Mark Parkinson, American Health Care Association/National Center for Assisted Living
A primary target of these transparency efforts are the private equity firms whose stake in the nursing home business increased from $5 billion in 2000 to $100 billion in 2018, according to an analysis from the Center for Economic and Policy Research.
Advocates worry that the equity firms and other for-profit owners are underfunding care in order to line their pockets, given academic studies linking for-profit status to poor quality and investigative articles spotlighting poor care and safety lapses at such facilities.
But proving the relationship between profits and care is difficult without detailed financial information, and that information is hard to get because owners have gotten adept at disguising their transactions and management through layers of corporate intermediaries. Simply making that information more widely available could make a big difference, according to advocates like Richard Mollot, executive director of the Long-Term Care Community Coalition.
“You have a much more sophisticated corporate environment than you did 35 years ago,” Mollot told HuffPost. “There are forensic accountants and attorneys who have spent a lot of time connecting the dots here and there, but we don’t have a national system in place to really know what’s going on.”
Why Advocates Are Especially Happy About Staff Ratios
A promise to improve staffing levels may be the most concrete and consequential part of Biden’s plan.
Research has repeatedly linked lower staffing levels to substandard care, although all it takes to grasp the relationship is a visit to a facility where harried workers are shuttling among needy residents. Under those conditions, it’s difficult if not impossible for staff to keep up with recommended routines ― including hand washing, which, in a nursing home environment, can dramatically increase the spread of disease.
That’s a big problem in normal times and an even bigger one during a pandemic, which is why one 2020 study of Connecticut nursing homes found that facilities with fewer employees had higher rates of death from COVID-19.
“Especially at a time of increasing acuity, with residents getting needier and needier, facilities are not sufficiently staffed, and the pandemic has only magnified that,” David Grabowski, professor of health policy at Harvard Medical School, told HuffPost.
Two decades ago, a federally commissioned study of nursing homes recommended setting minimum staff requirements that would mean, roughly speaking, that every resident got at least four hours of individualized attention from qualified staffers per day. The federal government never acted on it, and research from the Long-Term Care Community Coalition suggests that roughly three-quarters of nursing homes wouldn’t hit that threshold today.
“You have a much more sophisticated corporate environment than you did 35 years ago.”
- Richard Mollot, Long-Term Care Community Coalition.
Under Biden’s plan, the Center for Medicare and Medicaid Services (CMS) would have one year to reexamine the issue and then create a staffing requirement, as some states have since done on their own. Although Biden has not specified what the standard will be, advocates and researchers noted that the language of the initiative the White House published in advance of the State of the Union address is stronger than a similarly designed legislative proposal that appeared in several versions of the Build Back Better legislation.
“This looks like an attempt to do through regulation what they may not be able to get done through legislation, and it seems to go a bit farther, too,” MaryBeth Musumeci, a long-term care expert at the Henry J. Kaiser Family Foundation, told HuffPost.
Why The Nursing Home Industry Isn’t Thrilled At All
To meet a new staffing requirement, nursing homes would have to spend more money on wages for their workers, especially now that they are competing for labor with retailers, restaurants and other employers offering even higher pay. The national trade group representing long-term care facilities says that would be a big problem because facilities are already maxed out and don’t have enough money to cover extra expenses.
“We would love to hire more nurses and nurse aides to support the increasing needs of our residents,” Mark Parkinson, president of the American Health Care Association/National Center for Assisted Living, said in a written response to the Biden proposal. “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.”
Nursing home operators are also wary of more regulations that mean new steps to show compliance, whether it’s filling out forms or taking time to chaperone inspectors. Operators say many of those rules don’t actually lead to better quality care.
“Facilities are not sufficiently staffed, and the pandemic has only magnified that.”
- David Grabowski, Harvard Medical School
Some advocates and researchers are skeptical of industry arguments. They say there’s already plenty of money sloshing around in the system and that many facilities could easily afford higher wages if only they didn’t have owners extracting as much profit.
Others think the industry arguments about underfunding have more merit, pointing to the notoriously low payments from Medicaid, the joint federal-state program that is the primary funder of nursing home care in the U.S. They agree that regulations can force operators to devote more of their revenue to cover wages, but they think ultimately it would take a substantial increase in federal funding to pay for the kind of high-quality care most Americans would want for themselves or their loved ones.
One place where the two camps agree is on the importance of what happens next. So far, the agenda is simply a set of promises that the White House distributed electronically. As administration officials translate those proposals into actual regulations and rules, they will come under pressure from industry lobbyists to keep the new standards weak.
Historically, those lobbyists have won more battles than they’ve lost, thanks in part to the many lawmakers and officials with whom they have influence. But with such a clear and prominent call to action by the president and the still-increasing tally of 200,000 COVID deaths in long-term care facilities, the chances of meaningful action would seem to be as strong as they’ve been in a long while.