The Nursing Home Improvement and Accountability Act of 2021

The COVID-19 pandemic has taken an enormous toll on nursing home residents and staff, who represent more than one-third of all deaths nationwide, despite accounting for fewer than five percent of cases. While there is no single solution to the myriad problems COVID-19 exposed, significant improvements to staffing and oversight, along with better data systems and transparency, are necessary to increase quality and safety for residents and better protect nursing home staff. The Nursing Home Improvement and Accountability Act of 2021 represents an unprecedented investment in the foundation of nursing home care, filling much-needed gaps in staffing, transparency, and accountability, and quality of care to ensure nursing homes are better prepared to face future public health emergencies. The bill also includes a new demonstration program to modernize nursing homes to provide home-like care environments for those who cannot remain at home.

Staffing improvements. The COVID-19 pandemic underscored the important relationship between sufficient staffing and the safety of nursing homes residents, with understaffed facilities being two times more likely to have COVID-19 resident infections early in the pandemic than comparable facilities with higher staffing levels.2, 3, 4 While a clarion call for change, such clear associations are not new. For years, researchers have linked low staffing levels in nursing homes to poor quality, patient safety violations, and higher rates of antipsychotic use.5 To address insufficient staffing in nursing homes, this bill: 

  • Requires the Secretary of the Department of Health and Human Services (HHS) to conduct a study on staffing within three years (and every five years thereafter) to determine minimum staffing levels of Registered Nurses (RNs), Licensed Practical Nurses (LPNs) or Licensed Vocational Nurses (LVNs), and Certified Nursing Assistants (CNAs) that are needed in nursing homes for purposes of providing quality care; and following completion of the first report, the bill requires the Secretary to use the findings from the report to set minimum staffing requirements (and update, as appropriate) in skilled nursing facilities (SNFs) and nursing facilities (NFs) for RNs, LPNs/LVNs, and CNAs within five years.
  • Provides temporary additional federal resources through Medicaid to lift up wages and support the recruitment and retention of staff, as well as support improvements in resident care.
  • Requires all nursing homes use the services of an infection prevention and control specialist – an essential role in controlling the spread of infectious disease – no less than 40 hours per week.
  •  Ensures RNs are available in nursing homes 24 hours per day (currently, an RN must be present only eight hours each day).
  • Gives the Secretary the authority to issue penalties to nursing homes that submit inaccurate staffing information through the Payroll Based Journal staffing database. 

Ensures Care Compare – the online tool residents and their families use to select a quality nursing home – reflects only staff hours devoted to direct patient care and adds weekend staffing information (in addition to the current weekday hours).

Transparency, accountability, and quality. Unmonitored, limited, and confusing data have made it difficult to track and improve safety in nursing homes as well as ensure Medicare and Medicaid residents receive the best possible quality of care. To address these needs, the bill:

  •  Improves the accuracy and reliability of nursing home data, such as the Minimum Data Set, which reflects quality information vital to the Care Compare website used by residents and their families to select top-quality facilities; and incentivizes accurate reporting and enhances the scope of measures available to track quality of care. 
  • Provides long overdue administrative funding to the Centers for Medicare & Medicaid Services (CMS) to ensure Medicare cost reports submitted by nursing homes are accurate; also requires the HHS Office of the Inspector General (OIG) to examine the relationship between costs and quality in nursing homes based on these newly reviewed data.
  • Requires nursing homes to provide a surety bond of no less than $500,000 to the Secretary of HHS to provide assurances of facility financial viability, ensuring money for patient care remains available in the case of an unexpected facility closure or for other program integrity purposes. 
  • Protects seniors’ legal rights in nursing homes by ensuring admission to or residence in a facility is not contingent upon signing a pre-dispute binding arbitration agreement. 
  • Improves the nursing home survey and oversight process by requiring the Secretary to review the effectiveness of surveys and enforcement in nursing homes, including as it relates to infection control and emergency preparedness; and provides enhanced funding to state agencies to improve oversight processes and hire, train, and retain surveyors. 
  • Expands the Special Focus Facility (SFF) program that provides additional oversight to low-performing SNFs or NFs to no fewer than five percent of the lowest rated facilities and establishes a consultation and education program to support these facilities in compliance and quality improvement efforts.

Physical and cultural change. For individuals who need nursing home care, there are often no options beyond institutional facilities that better resemble hospitals than they do homes. Existing evidence of small facilities that try to meet changing patient preferences is positive and demonstrated success in managing the COVID-19 pandemic, making it an appealing model that nursing home experts have been looking to as a way to improve quality. 6, 7 This legislation takes steps to modernize the physical environment of nursing homes and enhance staff experience to promote evidence-based, patient-centered care for residents. Specifically, the bill:

  • Creates a demonstration program to provide funds to nursing homes to invest in the physical infrastructure of facilities, higher workforce standards, and integration of individual resident preferences. 


References:

*1 Nearly One-Third of U.S. Coronavirus Deaths Are Linked to Nursing Homes, N.Y. TIMES (June 1, 2021), https://www.nytimes.com/interactive/2020/us/coronavirus-nursing-homes.html

*2 Charlene Harrington et al., Nurse Staffing and Coronavirus Infections in California Nursing Homes, 21:3 POLICY, POLITICS, & NURSING PRACTICE 174-186 (2020), https://pubmed.ncbi.nlm.nih.gov/32635838/.

*3 Charlene Harrington et al., Appropriate Nurse Staffing Levels for U.S. Nursing Homes, 13 HEALTH SERVICE INSIGHTS 1-14 (2020), https://journals.sagepub.com/doi/full/10.1177/1178632920934785.

*4 Karen Spilsbury et al., The Relationship Between Nurse Staffing and Quality of Care in Nursing Homes: A Systematic Review, 48:6 INTERNATIONAL JOURNAL OF NURSING STUDIES 732-750 (2011), https://www.sciencedirect.com/science/article/abs/pii/S0020748911000538.

*5 Charlene Harrington et al., The Need for Higher Minimum Staffing Standards in U.S. Nursing Homes, 9 HEALTH SERVICES INSIGHTS 13-19 (2016), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4833431/.

*6 Lauren W. Cohen et al., The Green House Model of Nursing Home Care in Design and Implementation, 51:S1 HEALTH SERVICES RESEARCH 352-377 (2015), https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5338211/.

*7 Rob Waters, The Big Idea Behind A New Model Of Small Nursing Homes, 40:3 HEALTH AFFAIRS (2021), https://www.healthaffairs.org/doi/10.1377/hlthaff.2021.00081.

FRAMEWORK for NURSING HOME REFORM

POST COVID-19

 Overview of Recommendations

California Advocates for Nursing Home Reform, Center for Medicare Advocacy, Justice in Aging, Long Term Care Community Coalition, Michigan Elder Justice Initiative, National Consumer Voice for Quality Long-Term Care 

June 2021

To address the longstanding problems in the long-term care system, as well as those exposed by the COVID-19 pandemic, we provide a baseline framework with recommendations in six critical areas that need reform: (1) staffing and workforce; (2) regulation and enforcement; (3) ownership and management standards, transparency, and accountability for quality; (4) government payment systems, financial transparency, and accountability; (5) structural changes in the long-term care delivery system; and (6) nursing home redesign and rebuilding.

Areas for Congressional Action

Staffing and Workforce

• Ensure adequate staffing levels with requirements for minimum staffing standards, including Registered Nurse staffing 24-hours per day. (1.1)

• Provide living wages and benefits to recruit and retain nursing staff. (1.3)

• Require a full-time qualified Infection Preventionist in all facilities. (1.4)

• Increase required nurse aide training to a minimum of 150 hours and require enhanced training on infection control.(1.5)

Regulation and Enforcement

• Ensure that at least one family member or friend of the resident’s choice be permitted to enter facilities and provide essential support for residents at all times during a public health emergency. (2.1.3)

• Increase the budget for survey and certification to permit increased survey frequency and more timely complaint investigations. (2.2.1)

• Amend Medicaid law to remove the provision that allows facilities to establish distinct part units. (2.2.4)

• Ban the use of mandatory pre-dispute arbitration agreements. (2.2.7)

• Request studies to identify and eliminate long-standing problems, including adverse events among Medicaid beneficiaries, efficacy of the Special Focus Facility program, and the characteristics of nursing homes most and least affected by COVID-19. (2.2.10)

Ownership and Management Standards, Transparency, and Accountability for Quality

• Improve ownership reporting to CMS to include all parent, management, and property companies and all related party entities. (3.1)

• Expand the authority of CMS to impose investigations and remedies across a corporation or organization when a pattern of poor care is identified. Require CMS to prepare an annual report on the quality of care in chains, assessing patterns in staffing, deficiencies, financial arrangements, and objective quality indicators. (3.2)

• Establish federal criteria for the purchase, change of ownership or management of any nursing home seeking Medicare and/or Medicaid certification. (3.3)

• Establish a centralized application unit for ownership and management evaluations and decisions including processes to work with state agencies, state attorneys general, and the Department of Justice. (3.5)

Government Payment Systems, Financial Transparency, and Accountability

• Prohibit nursing homes from engaging in related-party transactions for staffing, supplies, and/or services. (4.1)

• Incorporate a medical loss ratio on the combined administrative costs and profits of each nursing home, its related parties, and parent companies of 10 percent of net revenues per year. (4.3)

• Give CMS full access to IRS filings of all the entities involved in the ownership and operations of facilities as part of CMS audit oversight. (4.4)

Structural Changes in the Long-Term Care Delivery System

• Permanently reauthorize the Money Follows the Person program and give greater flexibility to design programs that will facilitate successful transitions. Provide greater support to individuals returning to the community. (5.1)

• Make HCBS a mandated service under Medicaid. (5.2)

• Establish certification standards and federal reporting requirements for residential care/assisted living facilities that accept Medicaid residents. (5.4)

Nursing Home Redesign and Rebuilding

• Revise Medicare and Medicaid payment policies to incentivize private rooms and bathrooms for all residents. Require renovations and new construction to include private rooms and bathrooms as a condition of federal or state financing support. (6.1)

Actions CMS Can Take Under Current Authority

Staffing and Workforce

• Require automatic and increasing penalties for repeated staffing deficiencies. (1.2)

Regulation and Enforcement

• Ensure survey and complaint investigations, as well as enforcement actions continue during a public health emergency. (2.1.1)

• Require facilities to maintain a 1-month supply of PPE for staff and residents. (2.1.2)

• Ensure surveyors and managers do not have conflicts of interest and do not provide consultation and training to facilities. (2.2.1)

• Restore per day civil money penalties as the default. Revise the process for determining scope and severity. (2.2.2)

• Develop specific criteria for states to use qualified temporary managers. (2.2.3)

• Give high priority and require minimum pre-established penalties for inappropriate discharges. (2.2.5)

• Expand and improve Care Compare by flagging nursing homes out of compliance with staffing requirements, adding staff turnover and retention measures, using Medicare claims-based information for quality measures, and expanding ownership information available. (2.2.6)

• Reinstate the 2016 regulations banning mandatory pre-dispute arbitration agreements. (2.2.7)

•Collect and publicly report nursing home data, including data on admissions, discharges, occupancy, deaths, and resident characteristics. (2.2.8)

• Establish greater coordination, cooperation and training with related federal and state entities and stakeholders. (2.2.11)

Ownership and Management Standards, Transparency, and Accountability for Quality

• Post to Care Compare facilities that are owned or operated by chains. (3.2)

• Establish an effective prior approval process and qualification criteria for changes in ownership or management. (3.4) Require that applications be reviewed and approved prior to any individual or entity being allowed to own or operate a facility. (3.6)

Government Payment Systems, Financial Transparency, and Accountability

• Amend Medicare cost reporting requirements to require nursing homes to provide an annual consolidated financial report of income from all sources. (4.2)

• Conduct a new rate-setting study of the time and skill levels needed to carry out all nursing activities that meet federal requirements for person-centered care. (4.5)

• Permit value-based purchasing only for facilities that have established a track record of meeting minimum standards including no findings of harm or immediate jeopardy in 3-years and only to support those who have implemented practices that exceed minimum standards for the benefit of residents. (4.6)

Structural Changes in the Long-Term Care Delivery System

• Require Medicaid coverage for HCBS for up to three months prior to the month of application. (5.3)

Nursing Home Redesign and Rebuilding

• Coordinate with leading experts and stakeholders to develop new standards for the design, renovation, and/or replacement of existing nursing homes and residential care facilities. (6.3) Standards for nursing home building designs should emphasize designs that reduce the spread of infection and enhance quality of care and quality of life. (6.4)



Nursing Home Reform