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)
It wasn’t the first time lawmakers had rejected a push for minimum staffing requirements in Virginia nursing homes.
But Tuesday’s vote by a House panel to kill legislation aimed at raising workforce standards was particularly frustrating for advocates amid the ongoing COVID-19 pandemic, which has contributed to more than 4,700 deaths within the state’s long-term care facilities. A Senate committee defeated similar legislation last week, ending any hope of passing staffing requirements during this year’s General Assembly session.
Legislators have rejected the initiative for nearly two decades, but the latest votes came despite a year of intensive study on the topic by Virginia’s Joint Commission on Health Care, a standing work group dedicated to policy analysis. The commission’s final report listed staffing mandates as one of the top policy options for improving quality in state facilities, which rank below the national average when it comes to care.
Nationally, 31 percent of nursing homes have a one- or two-star staffing rating — the lowest of possible scores — from the U.S. Centers for Medicare & Medicaid Services. In Virginia, 43 percent of facilities are rated one or two stars, a ranking based on the expected number of direct care hours needed to adequately provide for residents.
More than 60 percent of low-staffed facilities in Virginia also receive poor health inspection ratings, according to the report, and understaffing is worst in nursing homes with high proportions of low-income and Black residents, who are disproportionately likely to be enrolled in Medicaid.
“I am trying my darndest to put a face on this,” said Del. Vivian Watts, D-Fairfax, whose latest bill marked her 18th attempt to pass staffing requirements through the General Assembly. “We are concerned about people who cannot afford basic care.”
Her legislation this year mirrored a Senate bill sponsored by Sen. George Barker, D-Fairfax — both of which were drafted based on recommendations approved by legislative members of the Joint Commission on Health Care in December. The proposed legislation would have required nursing homes to provide — at minimum — the baseline number of direct nursing care hours calculated by CMS based on the needs and condition of residents living there.
The bills would have also introduced penalties of up to $10,000 per violation for facilities that did not comply with the new requirements. As drafted, those sanctions would not go into effect unless the state budget funded at least the initial administrative costs of implementing the legislation, which also called for a new state fund for any fees assessed on nursing homes. Over time, the money would have been used for quality improvement grants to facilities and to help pay for the costs of running the program, according to the fiscal impact statement for the bill.
Del. Betsy Carr, D-Richmond, also introduced another bill that would have set flat hourly staffing requirements across the board rather than adjusting mandates based on estimated need. Her version was favored by consumer advocates for multiple reasons, including concerns that the formula currently used by CMS to calculate resident acuity doesn’t accurately capture some of the most high-need patients at many facilities.
“The case mix they use doesn’t even look at the staffing needed to prevent harm — it’s focused on how long it takes staff to perform certain actions,” said Emily Hardy, an elder law attorney for the Virginia Poverty Law Center. Joani Latimer, who advocates for patients as Virginia’s long-term care ombudsman, also said facility-specific requirements would be difficult to parse for both residents and their families.
“I think there’s tremendous value in an hourly standard because it just translates more clearly,” she said. “I’m very concerned that basing it on acuity is just not something people would be able to get a handle on. And then it’s difficult to know if your facility is in compliance.”
The distinctions between the bills, though, ultimately mattered less than concerns over the anticipated cost. Lobbyists for the long-term care industry have opposed efforts to introduce staffing minimums for years, arguing that chronic workforce shortages would hinder their ability to hire the employees needed to meet new standards. They’ve also argued that coming into compliance would require greater reimbursements from the state’s Medicaid program, which pays for the majority of patients at most facilities.
“We’re facing two hurricane-head winds — we don’t have the Medicaid reimbursement to pay the people and when we look at the staff, we don’t have people in the bullpen lined up to hire them,” said Scott Johnson, a lobbyist for the Virginia Health Care Association. Carr’s legislation proposed a gradual phase-in of staffing minimums, but all three bills came with massive cost estimates for the state. One projected the state would pay up to $100 million more by the end of the decade to reimburse facilities for increased staffing expenses.
Advocates, though, have long argued that the estimated costs reflect decades of underfunding within Virginia’s Medicaid program. And while the state will begin offering additional reimbursements this summer to facilities that meet certain quality measures, there’s still no requirement for nursing homes to take advantage of the program — leaving many residents stuck with inadequate staffing.
“It’s absolutely outrageous that they can’t take action on this,” said Natalie Snider, a state advocacy director for AARP Virginia. “We’re talking about Virginians who are incredibly frail. And the fact that our General Assembly is saying no year after year is just unconscionable.”
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