Pandemic deaths fail to shake loose a legislative solution on nursing home staffing

By: - March 25, 2021 12:03 am

House of Delegates members walk past the south portico around at the end of the veto session at the Virginia State Capitol in Richmond on April 22, 2020. Legislation passed the same year created Virginia’s new Office of the Children’s Ombudsman. ( Pool Photo by Bob Brown/ Richmond Times-Dispatch)

Sam Kukich was initially excited to join a workgroup she thought would focus on improving staffing levels at Virginia nursing homes.

The director of Dignity for the Aged, a Poquoson-based nonprofit, Kukich had become an almost inadvertent advocate for reforming standards of care in the nursing home industry. She and her family had already made headlines across the state when they detailed a nearly five-year-long struggle to find care for her mother-in-law, who lost 65 pounds and suffered dozens of falls at multiple facilities in the Hampton Roads region.

When she started Dignity for the Aged in 2018, largely out of frustration, Kukich started hearing from “all sorts of people” about cases of abuse and neglect in Virginia nursing homes. Many of the cases, she said, were linked to understaffing — certified nursing assistants and other health care workers who were simply too overworked and overwhelmed to properly care for residents. 

So Kukich was disappointed last year, when a Virginia Senate subcommittee rejected a bill from Sen. Jennifer Kiggans, R-Virginia Beach, that would set minimum staffing ratios for the industry. It was the 16th straight year similar legislation had died, but this time, legislators ordered the state Department of Health to organize a work group to “review and make recommendations” on increasing the nursing home workforce in Virginia.

“I told Sen. Kiggans that I would very much like to be on the committee,’” Kukich said. “So I was pleased that they invited me.”

When the bill died again this year, after months of meetings by the workgroup that failed to produce concrete proposals to fix staffing shortages, advocates say, that made it 17 times in a row.

National advocacy groups rank Virginia among the worst in the nation when it comes to staffing levels in nursing facilities (Families for Better Care, a Texas-based watchdog group, has given the state a failing grade for the last two years). And given the scope of Kiggans’ bill, Kukich thought staffing ratios would at least play a major role in the discussion.

By many accounts, that didn’t happen. The workgroup held eight meetings from early July through November, as hundreds of residents were dying in Virginia’s long-term care facilities. But when the workgroup released its final list of 34 recommendations, the top three centered on creating optional service learning credits for school children who volunteered in long-term care facilities. The fourth suggested changing regulations to allow for more volunteerism overall — volunteers who would need to be trained and overseen by professional staff members.

Lower on the list there were recommendations on creating financial incentives for nursing home workers. Lower still, at 21 and 22, there were proposals to pay facilities higher Medicaid reimbursements if they met specific staff-to-resident ratios — suggested to start at 12-to-1 and increase to 6-to-1 over the next four budget cycles.

Joani Latimer — the state’s long-term care ombudsman, a watchdog over Virginia nursing homes and resident rights — said those types of programs are often called “value-based purchasing” or “pay-for-performance.” Nationwide, they’re gaining traction as a way to give incentives for better care, rather than penalizing facilities for staffing shortcomings they say are often outside their control.

In this case, though, nursing home lobbyists voted against both recommendations that would have tied reimbursements to minimum standards. A final report from the workgroup, obtained by the Mercury but yet to be released publicly, states that the Virginia Health Care Association-Virginia Association of Assisted Living opposed staff-to-resident ratios of any kind. The industry group, which represents 345 of the state’s nursing homes and assisted living centers, frequently argues the real problem is a shortage of credentialed health professionals.

“Just from a pragmatic end, there are not the nurses there to meet the staffing levels that have been proposed,” said CEO Keith Hare. “The state has to build a pipeline of individuals who want to enter long-term care and make it a career. Until we do that, any other efforts are putting a Band-Aid on the situation.”

State Sen. Jennifer Kiggans, R-Virginia Beach.

As the meetings went on, Kiggans said the debate began to spin in circles. If advocates pointed to low pay that made recruiting staff more difficult, lobbyists for the industry would point to the importance of student outreach. Advocates would bring up burnout, and the industry — or sometimes administration officials — would pivot to bringing in more volunteers or expanding employment opportunities to the deaf.

“The advocates want staffing ratios, period,” Kiggans said. “And there are a lot of other people — industry people, administration people — who don’t think that’s the perfect solution. They wanted things like, how can we get more high school students who are interested in being nurses at these facilities? How can we get more veterans or people with disabilities to work there?”

‘Virginia seems very much like baby steps all the time’

By the time the workgroup adjourned in November, Kukich was fed up — and furious. A final recommendation called for the state’s Joint Commission on Health Care to conduct yet another study on “direct care staff recruitment and retention.” Dignity for the Aged lambasted the proposal in written opposition, saying the state had no reason to waste “one more dime” on the staffing issue.

“We have enough information from studies to fill a library the size of the Pentagon,” the comment reads, adding that lawmakers should “get it together and pass a bill to mandate ratios.”

“Think of your parents, friends or even yourself residing in a nursing home with no one to answer your call button, sitting in your own waste for hours,” Kukich wrote. “We have all the data we need.” 

Less than three months later, though, lawmakers did opt for another study. Just a few weeks into the 2021 General Assembly session, state legislators quickly killed two more bills from Kiggans and Del. Vivian Watts, D-Fairfax, that again called for minimum staffing and care standards in nursing homes. Kiggans’ bill included an exception during public health emergencies — against the wishes of many advocates — and delayed enactment for a year to give the joint commission time to study the issue. 

Still, a Senate subcommittee quickly killed the bill — taking a vote during a virtual meeting while Kiggans’ video stream was frozen. “Clearly, if we’re going to end up doing these types of ratios, we’re going to have to figure out how many staff would be appropriate and what type of variation there would be in the needs of different patients,” said Sen. George Barker, D-Fairfax, who chairs the panel.

Proponents for the bills knew they shouldn’t have been surprised. Watts, the longest-serving woman in the House, had been introducing similar measures for almost two decades with the same results. Watts said they’d never received much traction, even when Kiggans — a geriatric nurse practitioner — started to lend bipartisan support. 

As of Wednesday, a total of 3,938 people had died from COVID-19 in long-term care facilities, according to data from the Virginia Department of Health. Overall, the facilities have accounted for nearly 35 percent of the state’s outbreaks and almost 40 percent of its COVID-19 deaths, though their residents account for a tiny fraction — less than one percent — of Virginia’s total population. 

Staffing shortages were a problem before the pandemic, but experts say they played a major role in spurring the spread of disease. By early April, nursing home administrators were begging state officials to release a list of sites with COVID-19 outbreaks — because low-paid staff often worked at multiple facilities and could spread the virus from place to place. An outbreak at Canterbury Rehabilitation & Healthcare in Henrico, one of the state’s deadliest, is believed to have started with an infected staff member.

The COVID-19 death toll at Canterbury Rehabilitation and Healthcare Center in Henrico became one the highest known in the nation at a longterm care facility in April. (NBC12)

Employment levels also played a critical role in how well facilities responded to an outbreak. Skyview Springs, a nursing home in Luray, was placed under “immediate jeopardy” last May when state inspectors found that more than 60 percent of its residents tested positive for coronavirus (24 ended up dying from the disease). Employees didn’t isolate COVID-positive patients from negative ones, with one worker blaming “staff limitations” that made it difficult to separate the patients.

“Understaffing isn’t simply a question of poor quality care — understaffing is a matter of life or death for our seniors,” Dr. Jim Wright, the medical director for Canterbury Rehab, told lawmakers in February. Nationwide, facilities with a history of workplace shortages — facilities like Canterbury, he said — had much higher incidence rates of COVID-19.

“That’s what makes this so infuriating,” said Natalie Snider, a state advocacy director for AARP Virginia. “I’ve done legislation in other states, but Virginia seems very much like baby steps all the time. And I don’t think they have the foresight to take the longer-term view of what we’re looking at.”

(Getty Images)

‘It’s like trying to build a new roof for the house and the house is on fire’

Even quantifying the extent of Virginia’s staffing shortages can be a challenge. According to the Long Term Care Community Coalition, a national advocacy group for nursing home residents, the state ranks 38th in the country when it comes to total staff care and 44th when it comes to the average number of hours each resident spends with registered nurses. Families for Better Care, another nonprofit advocacy group, reports that residents typically receive “fewer than two hours and 17 minutes of direct care per day” — contributing to Virginia’s ranking as “worst nursing home state” in the mid-Atlantic region.

Federal sources, like the Centers for Medicare & Medicaid Services, provide less insight into the state’s overall ranking. But according to CMS, which relies on self-reported data from facilities, Virginia ranks slightly below the national average when it comes to RN staffing hours and certified nurse assistant hours. The agency’s most recent dataset from February shows that Virginia facilities have a higher-than-average number of fines and that their cost is higher than in other states — $18,326 on average compared to $12,120 nationally. Long-term stay residents also tend to deteriorate faster, losing too much weight and requiring more help with day-to-day activities at higher rates than the national average. 

Industry groups, including VHCA-VCAL, are quick to push back. Not all nursing homes in Virginia have inadequate staffing, many point out. They also say facilities are well aware of the challenges and shouldn’t be blamed for the systemic problems causing them. 

One argument is that a shortage of health professionals — RNs, licensed practical nurses and the CNAs that often shoulder the lion’s share of daily care — makes it difficult, if not impossible, for facilities to meet staffing ratios. Another is that such ratios would force a one-size-fits-all approach on facilities, even if it didn’t make sense for their operating model.

“Facilities are very different in terms of the types of individuals they provide treatment to and the level of acuity,” Hare said. “So, a standard that says each facility must do the exact same thing is mandating a standard of health care that may not be in the best interest of the resident.”

“It may meet their needs, or it may overstaff their needs,” he added. “It’s an individual care plan that each resident has.”

But Emily Hardy, an elder law attorney with the Virginia Poverty Law Center, told the Mercury that the state has stricter criteria for admitting Medicaid patients into nursing facilities than many other places, which means that Virginia nursing home patients generally require more care than residents in other states. The formula in Virginia is complicated, but patients must be unable to independently perform at least two “ADLs,” or “activities of daily living” — defined in state code as bathing, dressing, toileting, eating and other essential tasks. 

They’re also required to meet at least two additional criteria, including a pattern of “aggressive, abusive, or disruptive” behavior, declining cognitive function — an inability to identify their home address, for example — or a lack of mobility. 

“So, we have less care for more ill people,” Hardy said. “As a starting point, I don’t think we need to concern ourselves with having too much staffing in any facility.”

Christina Nuckols, a spokeswoman for the state’s Department of Medical Assistance Services, outlined Medicaid criteria for admission into Virginia nursing homes.

Advocates also note that many other states have found ways to implement standards of care. According to the workgroup report, Virginia is one of 19 other states with no required staffing standards for nursing homes — either staff-to-resident ratios or a minimum number of direct care hours. CMS has developed recommendations, but states aren’t required to adopt them, Latimer said.

All of the other 30 states have established their own standards for ratios or direct care hours — sometimes both. The workgroup report also found that Virginia hasn’t seen a significant decrease in nursing professionals over the last five years. While the number of licensed LPNs dipped by 5 percent, licensed RNs have increased by 11 percent. And while there’s been a two percent decrease in the number of CNAs to receive licenses over the last five years, a greater number have rejoined the active workforce, according to the report — boosting the total number of full-time hours by 12 percent.

However, there’s evidence that landscape has shifted since the start of the pandemic. VHCA-VCAL pointed to a national study by the nonprofit research firm Altarum, which found that employment in nursing and residential care settings has fallen by 9.2 percent — 310,000 jobs — since February 2020. Advocates, though, say the real problem isn’t a declining workforce, but job conditions that cause employees to leave the industry, including low pay. 

Jeremy Kellems, a nurse practitioner in the Richmond area, told lawmakers this year that many nurses oversaw 20 to 30 residents a day — 45 to 50 if someone called out sick. Pay is another challenge. Average hourly wages for CNAs, who provide much of the day-to-day care in many facilities, has risen to around $14 to $15 an hour in 2019. But a significant number are still paid less than $10 an hour, and roughly 46 percent don’t receive health insurance through their employer, according to the report.

“So much of our staffing crisis has to do with retention as much as recruiting,” Latimer said. The issue was compounded by the pandemic, as nursing homes reported chronic shortages of personal protective equipment and were suddenly forced to implement exhaustive infection control protocols. 

Dignity for the Aged provided the workgroup with an informal Facebook poll of 100 CNAs — 59 percent of whom said low wages were one reason they had considered leaving or already left the industry. Another 51 percent cited burnout. Kukich said hearing from nursing home workers left her particularly frustrated by recommendations to increase recruitment among students or solicit more volunteers.

“We don’t need to talk young children into nursing care when we’re not going to pay them, we’re not going to treat them as professionals,” she said. She was equally unenthused — and perplexed — by suggestions to establish financial relief programs for nursing home workers to help pay for child care or transportation costs (both she and Hare said it was never clear who would be responsible for funding those programs, but the report tasked the General Assembly with deciding which categories of expenses should be targeted).

“Why don’t you just pay them a living wage?” Kukich said. “It’s like trying to build a new roof for the house and the house is on fire.”

Kukich and supporters protested at St. Francis, a Bon Secours Health System facility in Newport News where Kukich said her mother-in-law received substandard care.

‘The constant complaint was we don’t have enough staff’

There’s another problem frequently cited by the industry: Medicaid reimbursement. Virginia’s Department of Medical Assistance Services, which administers the state’s Medicaid program, calculates reimbursement rates for nursing facilities based on a variety of factors, including the acuity of residents. That makes it difficult to establish an average across the industry or compare rates between states.

But there’s near-universal agreement that Virginia falls on the low end of the spectrum. Steve Ford, VHCA-VCAL’s senior vice president for policy and reimbursement, said the state’s nursing homes — on average — received an estimated $196.21 daily reimbursement per Medicaid resident in fiscal 2021. But the daily cost of providing care to those patients was estimated at $208.43.

“In layman’s terms, we estimate Medicaid, on average, was paying $12.22 less than cost,” Ford said. The pandemic complicates that approximation, since DMAS has been paying facilities an extra $20 per bed per day reimbursement since last April to help recoup coronavirus-related expenses. But overall, it equates to an ongoing financial challenge for facilities.

“What we do know is that we were below the national reimbursement average even with the COVID add-on,” Ford said. According to DMAS, 61 percent of the state’s nursing home residents were funded through Medicaid as of 2019. Many facilities say their profits rely on patients funded through Medicare — which covers short-term rehabilitative stays — or what’s often a small minority of self-pay patients.

Virginia’s low reimbursement rate is another reason why the industry opposes staffing ratios. Even if that workforce was there — “and truly, it is not,” Hare said — facilities say they often can’t afford to hire more employees or boost salaries.

“To tell the employees simply that they have to employ more staff solves neither of those issues,” Ford said. Senators of both parties made the same point when subcommittee members voted to table Kiggans’ bill. Sen. John Edwards, D-Roanoke, referenced Medicaid funding directly, describing it as the primary problem facing nursing homes. “I was on the board of Virginia Lutheran Homes for 20 years,” he said. “The constant complaint was we don’t have enough staff, especially on weekends. I passed it along to the CEO, and he said, ‘That’s right. We don’t have the money.’”   

Like many issues in Virginia politics, though, sticker shock has been a barrier. A fiscal impact statement for Watts’ bill this year estimated it would cost the state more than $60 million by fiscal 2027 to underwrite staffing hour requirements through Medicaid reimbursement. “The impact statement has always been what’s killed the bill,” she said.

Del. Vivian Watts, D-Fairfax. (Photo by Ned Oliver/Virginia Mercury)

Then there are other priorities that the state has yet to fund fully. Technically, Virginia mandates a ratio of one long-term care ombudsman to every 2,000 nursing home residents. But legislators have never provided the necessary money. In 2018, the state’s General Assembly boosted funding to the office by $300,000 — less than a third of the $974,000 requested by advocates, which, in turn, was half of the nearly $2 million needed to provide that ratio, Latimer said.

Today, there’s one ombudsman for every 2,898 residents. “But that does not take into account the mandate to cover persons receiving community-based long-term care,” she added in an email.

“Coverage also differs by locality based on bed counts, available funding and staffing level,” Latimer wrote. “For example, in one extensive geographic area of the state, there is one full-time ombudsman covering 8,000 long-term care beds.” 

This year’s budget does include roughly $43.7 million in state dollars to extend an additional $15 daily payment to nursing homes per Medicaid bed until July 2022. But when it came to permanently expanding the state’s reimbursement rate, “there was no discussion of that at all,” said Del. Mark Sickles, D-Fairfax, a senior budget negotiator.

Some advocates say there shouldn’t be an increase without accompanying staffing requirements for nursing homes. While facilities cite budget challenges, Latimer said there’s little public transparency into how much the companies make, how they spend that money and how much is invested back in staff. Administrators are required to submit detailed cost reporting to the state’s Office of Licensure and Certification, but those details aren’t frequently relayed back to consumers.

“We need to be able to find out what they spend that money on,” said David DeBiasi, another state advocacy director for AARP Virginia. “It’s not just reimbursement rates — there was a windfall of money for nursing homes in the federal recovery act. Where did that go? Raising reimbursement rates won’t do a thing if it doesn’t translate to improvements in staffing levels.”

That’s another reason why many have concerns with value-based purchasing programs, which offer higher rates to facilities who meet performance standards or make improvements in quality of care. The additional state money for supplementary Medicaid reimbursements was added to the budget along with language instructing DMAS to “work with appropriate nursing facility stakeholders” to develop a program, with a target start date of July 1, 2022.

The industry supports the policy. “From our perspective, if you’re making progress, you should continue to be incentivized and reimbursed,” Ford said.

But Latimer said it’s difficult to measure progress without empirical requirements. There’s also concern that any improvements would continue to favor residents who can afford nursing homes that are already committed to high standards.

“I think the flaw in that argument is that for facilities that don’t have the incentive to improve, or think there’s no way of getting there — where’s the imperative?” she said. “They can stay where they are and get the lower reimbursement. And you can bet that the residents who are in those poorer-performing facilities, they’re the ones without other options.” 

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Kate Masters
Kate Masters

Kate grew up in Northern Virginia before moving to the Midwest, earning her degree in journalism from the University of Missouri. She spent a year covering gun violence and public health for The Trace in Boston before joining The Frederick News-Post in Frederick County, Md. Before joining the Mercury in 2020, she covered state and county politics for the Bethesda Beat in Montgomery County, Md. She was named Virginia's outstanding young journalist for 2021 by the Virginia Press Association.