A landmark federal staffing mandate has prompted fierce disagreement between resident advocates and the nursing home industry.
The call came late on a cold night in February, from the Overland Park, Kansas, nursing home where Georann Whitman’s mom was living.
“They said that they found her on the floor,” Whitman said. “She had gotten up in the middle of the night, and had fallen.”
Whitman’s 86-year-old mom, Ann Collins, had dementia. She had moved into the memory care facility a month prior after the cost of round-the-clock care by home health aides became untenable.
She broke her left hip in the fall. After surgery, her doctors ordered that she not put weight on it while it healed. But Collins kept forgetting. And despite the facility’s relatively typical staffing levels, Whitman alleges it didn’t have sufficient staffing to properly supervise her.
“They expected her to push the call button if she needed anything,” Whitman recalled from her home in Spring Hill, Kansas. “Well, she didn’t remember to push the call button. She didn’t remember how the call button works.”
Whitman hopes experiences like her family’s will become less common due to a landmark new federal mandate that establishes the first national staffing minimum for nursing homes. But the new rules, slated to take effect over the next few years, have spurred widespread disagreement. Nursing home owners describe them as extreme, warning they could force some facilities out of business. And, even though advocates welcomed the new mandate, they say it’s far more lenient than they wanted.
A week after Collins’ first fall, she fell again — this time, breaking her right hip. Doctors performed another surgery and reiterated that she needed to stay in bed. Back at the nursing home, Whitman said she pleaded with the facility’s administrators to do more to prevent her from falling.
But a few weeks later, Collins fell a third time. Then a fourth time, and then a fifth. During the last fall, she hit her head and was rushed to the emergency room. With each subsequent fall — all within a two-month stretch — Whitman said her mom’s physical and cognitive decline accelerated.
She hesitated to file a formal complaint against the nursing home because she feared staff might retaliate against her mother.
“But after she busted her head open, I called the state,” Whitman said. “I didn’t know what else to do.”
She said she filed a second complaint after she witnessed a staff member — in a rush and apparently unaware of the doctors’ orders — force her mom to walk to another room, despite Whitman’s urging to check her medical chart.
“She argued with me, ‘I don’t have time to check the chart. Why don’t you let me do my job?’” Whitman said.
“When my mom came back, she was in tears.”
State regulators investigated and determined that the facility failed to ensure Collins maintained her non-weight-bearing status, putting her at risk for injury and pain.
The nursing home’s administrators did not respond to requests for comment. The Kansas News Service is not naming the home because Collins’ experience is relatively commonplace in Kansas, and because the facility’s current staffing ratios would exceed the new federal minimums.
After the incident, Whitman said, her mother’s condition quickly deteriorated. Collins was moved in May to a hospice facility, where she soon died.
“You’re sacrificing financially so that somebody else can be the caregiver,” Whitman said of the nursing home system. “At the very least, you should expect that they’re going to be safe.”
Nursing home operators resist
The Biden administration finalized its new federal staffing mandate this spring. Once it takes effect, nursing homes must provide at least 3.48 hours of daily nursing care for each resident — nearly double the current minimum set by Kansas regulators. They must have a registered nurse on duty 24/7. Facilities in urban areas have two years to comply; those in rural areas have three.
Fewer than 40% of Kansas nursing homes currently meet the new requirements, according to an analysis by the health research organization KFF.
There’s been fierce pushback: from politicians, like U.S. Sens. Roger Marshall and Jerry Moran, Kansas Republicans who are fighting the mandate in Congress, and the state’s Democratic Gov. Laura Kelly, who urged federal officials to delay its implementation.
But the response has been fiercest from the nursing home industry, which is seeking to block the new mandate in court. In a federal lawsuit, the American Health Care Association describes regulators’ actions as “a baffling and unexplained departure” from the past, and the new standards as “impossible” to meet.
In Kansas, nursing home operators say the problem is rooted in an acute lack of health care workers.
“We have had severe workforce shortages in long-term care for well over a decade. This mandate does not magically make that not true,” said Rachel Monger, president of the not-for-profit trade group LeadingAge Kansas. The group’s national affiliate has joined the federal lawsuit challenging the rules.
“We do not have the people — and the money to pay people — in our system, currently, to meet the mandate,” she added.
As part of the mandate, facilities in areas with workforce shortages can ask for exemptions, and federal officials predict around a fourth of facilities will receive them. The Biden administration has also pledged to invest $75 million in getting more nurses into nursing homes.
But industry groups say it’s insufficient.
Linda MowBray, president and CEO of the Kansas Health Care Association, said the mandate could force homes to shutter or reduce how many residents they accept.
“That’s where residents could be put at risk,” she said. “They would not have a bed to go to if they were needing this type of care.”
Critics of the new rules also say they could hit rural facilities particularly hard, making it even more difficult for rural communities to access long-term care close to home. It’s unclear how true that is. A recent national analysis found rural homes are actually slightly more likely than their urban counterparts to staff at levels that would meet the new requirements.
‘Invisible people’
Advocates say understaffing frequently translates into neglect, and the new mandate falls short of what many had called for. They hoped the minimum of 3.48 daily care hours would be set closer to the 4.1 — the amount determined to be needed in a seminal 2001 study funded by the Centers for Medicare & Medicaid Services.
Camille Russell, who was the Kansas long-term care ombudsman for three years until she departed earlier this month, said she’s lost count of the number of times she’s heard from families about nursing home residents falling due to scarce supervision.
“It is, in large part, due to a lack of staffing,” Russell said.
And it’s not just falls — research has repeatedly shown that low staffing levels are associated with a host of problems endemic to nursing homes, including infections, pressure ulcers and the overuse of antipsychotic drugs.
In a recent survey studying the human costs of understaffing by the advocacy group National Consumer Voice, 87% of residents polled said understaffing affects them every day or several times per week. Over half said staff are frequently too busy to administer their medications and meals on time.
“I call us ‘the invisible people,’ because that’s what it feels like,” Sharon Wallace, a nursing home resident in New York, said in a panel organized by the advocacy group. “We’re stuck in our rooms. We’re out of sight, out of mind.”
Advocates have long called for more stringent and better-enforced rules for the nursing home industry, which they describe as an underregulated “wild west” of the health care sector. Nursing home owners have, largely, fought their proposals, including an attempt in Kansas last year to reduce involuntary discharges of residents.
“We have people who have become literal billionaires in this industry,” Russell said. “Of course they don’t want to shell out more of their profits on labor.”
Russell worries some facilities could try to reduce the financial cost of the new rules by reducing their housekeeping staff and asking medical staff to take on more housekeeping duties.
Sam Brooks, director of public policy for National Consumer Voice, said the industry’s workforce issues are rooted in low wages and difficult working conditions that steer many would-be employees to other parts of the health care system.
“It’s not necessarily a lack of people to do the jobs,” Brooks said. “It’s the job quality itself.”
Financial questions
The debate has revealed diverging economic narratives.
Nursing home operators say hiring to the required level will devastate an industry that already operates under razor-thin margins. Nationally, around half of nursing homes claim to lose money each year in annual reports to regulators.
Kansas industry groups point to a report by LeadingAge Kansas that says at least 57 of the state’s long-term care facilities have closed or reduced their services since the start of the pandemic. The report estimates the new staffing mandate will cost facilities an extra $35.72 in labor expenditures per resident, per day.
But some economists and advocates say there’s more to the story. In recent years, private equity investors have increasingly bought up nursing homes across the country. Their ownership is associated with lower staffing and poorer quality, and in Kansas, their facilities are more likely to be flagged by regulators for persistent compliance problems.
“There’s a reason why this group of people are coming in and buying facilities,” said Dan Goodman, president of the advocacy group Kansas Advocates for Better Care. “They’re seeing an opportunity here.”
Three of the country’s largest nursing home chains have paid out nearly $650 million to their executives and shareholders in combined dividends, stock buybacks and salaries in recent years, according to a group of Democratic lawmakers criticizing opposition to the new mandate.
One analysis of Illinois data found nursing homes there have hidden around two-thirds of their profits from state regulators by “tunneling” money through commonly owned businesses.
For instance, a nursing home’s owners might sell the facility’s building to a real estate company that they also own — and then charge the nursing home an exorbitantly high rent. The nursing home could then tell regulators they’re losing money due to skyrocketing rent costs, even if its owners are pocketing the money.
“The industry line has been that nursing homes are extremely unprofitable, with an average profit margin somewhere in the 0.5% range,” said Andrew Olenski, an assistant professor at Lehigh University who co-authored the paper. “What our study shows is that, actually, the average profit margin is quite a bit higher than that.”
Olenski said profits vary significantly from facility to facility, and it’s possible that many homes lose money without engaging in tunneling. Still, he said, the practice makes it difficult for regulators to accurately gauge the industry’s financial circumstances.
Political uncertainty
Advocates say the new staffing mandate won’t solve the problem of nursing home neglect, but it could force the worst offenders to improve their quality — or close their doors.
Russell, the former Kansas ombudsman, said it shouldn’t be controversial to require facilities entrusted with caring for the state’s most vulnerable people to meet minimum standards. If a nursing home has repeatedly endangered residents, she said it might be preferable for it to close.
“We’d be better off to quit making false promises to people,” she said.
Still, there’s mounting uncertainty about whether the staffing mandate will take effect as scheduled. Some experts say the industry groups challenging the requirement may be buoyed by a recent U.S. Supreme Court decision upending the Chevron deference legal precedent, which curtails the power of federal regulators. Others say it’s unclear if the mandate will hold if Republicans gain control of the White House or U.S. Senate this fall.
Rose Conlon reports on health for KMUW and the Kansas News Service. ksnewsservice.org.
