By James C Sherlock

We have some great nursing facilities in Virginia. We also have far more than our share of bad ones.

Virginia has a decision to make about the latter.

The federal government sets standards for those that are paid with federal funds.  It both levies fines and denies payments as it feels appropriate.

But more direct action to assure quality of and safety in nursing homes is left to the states, who both license and regulate them.

There are simply not enough nurses nationwide or in Virginia to staff all of the nursing homes currently operating.  And that shortage is not temporary.

The decision Virginia needs to make is straightforward:

• do we want to keep open to new patients the 289 certified nursing facilities currently in operation; or
• do we want to ensure patient safety.

We cannot have both.

The nursing shortage cannot be a reason for government to leave open to new patients grossly understaffed nursing homes.  If that understaffing is sufficiently chronic, some must be closed.

Among the bad facilities, some owners are scoundrels.  Others are just not able to get it done.  Better enforcement will reduce the number of both.

Actions must be taken to assure that when citizens need a nursing home, the state license can be trusted as a sign that basic standards are maintained.

That they will be safe.

Nursing homes.  There are two types of federal nursing home designations: skilled nursing facilities (SNF) for those moved from hospitals to recover, and nursing facilities (NF) for those needing long-term care.

Ninety-one percent of beds in Virginia are dual-certified SNF/NF to allow facilities to adjust for patient mix.  The actual numbers and mix of patients, however, must depend upon the ability of the facility to provide for their medical care.

Last quarter, a very large number of Virginia facilities had more and sicker patients than they should have allowed themselves, or have been allowed, given staffing.

SNF care is paid primarily by Medicare and private health insurance.   Under normal circumstances, Medicare will pay for up to 100 days.  Occupied SNF beds can be quite profitable.

Medicaid is the primary payer for NF beds.  Nursing care for those beds generally requires less nursing time, especially RN minutes, than SNF beds.

Owners contend that Medicaid rates are insufficient given inflation, especially of personnel costs.  That is an issue for the Department of Medical Assistance Services (DMAS) to address.

Licensing.  A state license is required to operate a nursing home.

Nursing homes change ownership all the time, often in groups.  Yet Virginia has almost no criteria for a license to operate an existing nursing home other than filling out a form.

New York requires a “character-and-competence” review of buyers before approval of a change in ownership of nursing homes. Other health care facilities associated with the buyers must have a record of high-quality care.

Inspections and CMS data.  The states themselves inspect nursing homes, both to certify them for Medicare and Medicaid, and in support of state license renewal.

Inspections are conducted generally once every two years for most, and more often for those found in serious violation of patient safety.

The Virginia Department of Health’s (VDH) inspector corps in the Office of Licensure and Certification (OLC) is itself chronically understaffed, but they are very good at what they do.

They inspect, find and report violations, and CMS publishes the reports.

OLC receives monthly reports from CMS containing star ratings for the following measures: overall rating, health inspection rating, overall quality measure (QM) rating, long-stay QM rating, short-stay QM rating, and staffing rating.

In addition, the reports contain staffing alerts, health inspection rank in state and identified potential Special Focus Facilities (SFF).  OLC uses these reports to choose the designated SFF (must be approved by CMS) and candidates for required off-hour (weekend) survey entrances. Special Focus Facilities are chosen from the top five candidates on the list.

Violations.  Under the Code of Virginia, the following definitions are used for nursing facilities:

• “Certified nursing facility” means any skilled nursing facility, skilled care facility, intermediate care facility, nursing or nursing care facility, or nursing home, whether freestanding or a portion of a freestanding medical care facility, that is certified as a Medicare or Medicaid provider, or both, pursuant to § 32.1-137;
• “Substandard quality of care” means deficiencies in practices of patient care, preservation of patient rights, environmental sanitation, physical plant maintenance, or life safety which, if not corrected, will have a significant harmful effect on patient health and safety;
• “Class I violation” means failure of a nursing home or certified nursing facility to comply with one or more requirements of state or federal law or regulations which creates a situation that presents an immediate and serious threat to patient health or safety;
• “Class II violation” means a pattern of noncompliance by a nursing home or certified nursing facility with one or more federal conditions of participation which indicates delivery of substandard quality of care but does not necessarily create an immediate and serious threat to patient health and safety. Regardless of whether the facility participates in Medicare or Medicaid, the federal conditions of participation shall be the standards for Class II violations.

Class I violations  are handled immediately.  Repetition of Class I violations, however, is insufficiently sanctioned.

There are facilities still accepting new patients in Virginia that have been found for years in repeated inspections to commit Class I violations of federal regulations against patient abuse and improper medical care.

The wider issue is that the Commonwealth has not ever to my knowledge taken sufficient actions to discourage Class II violations.  The federal fines can be pocket change over time compared to the additional profits.

Nurse Staffing.  The supply/demand issues surrounding nursing home staffing are brutal for the operators.  There are simply not enough registered nurses to meet demand broadly.

And there won’t be any time soon.

We are not producing enough American nurses to replace those that left during COVID.  Not close.

The National Council of State Boards of Nursing, in a news release in April …

reveal(ed) that 100,000 nurses left the workforce during the pandemic and by 2027, almost 900,000, or almost one-fifth of 4.5 million total registered nurses, intend to leave the workforce, threatening the national health care system at large if solutions are not enacted.

Green card nurses have been relied upon for a long time to try and fill the gaps. But that avenue is currently blocked.  As reported by The Wall Street Journal:

Recruiting nurses from abroad has come to a halt because the type of green card that healthcare institutions use to hire nurses has become so oversubscribed that the State Department this month stopped processing applications from anyone who applied after February 2022.

Green card nurses have come primarily from the Philippines or Jamaica.  There is no indication that even if the pipeline were opened that anything like the numbers needed would fill it.  And it is a legitimate question how many trained nurses those nations can spare.

In that environment, the members of the American Health Care Association (AHCA) and National Center for Assisted Living (NCAL) – the operators of nursing homes – are struggling to find and retain staff.

Today, nursing homes have experienced the worst job loss of any health care sector.

From a nursing home owner’s perspective, the shortages are bad, are getting worse, and hospitals generally can offer nurses more money.

In Virginia, 78% of nursing homes are operated for profit.  Owners buy those facilities to make a profit as well as provide services.  But in return for their licenses their responsibility to their patients and thus the government is to provide the necessary nursing care.

Nurse staffing and turnover, especially of registered nurses, are key leading indicators of patient safety or jeopardy.  What I see in the data is:

• Some nursing home owners are providing better working environments and offering more in pay and benefits than others to fill those jobs;
• Many offer neither advantage.  Nurses are burnt out at badly managed and understaffed facilities.  Turnover can approach 100% a year.  CMS’s own studies say that high turnover is measurably bad for patients.  Care suffers.

CMS publishes nurse staffing and turnover data in detail for every certified nursing home in America. It is updated quarterly for the public and monthly to the states.  Citizens who follow it can see the patterns.

So can regulators.

Innovation.  The Japanese have been using robots in nursing homes for more than a decade to replace hard-to-find and hard-to-retain staff.

Nursing homes in many countries use wearables and fixed equipment to offer increased remote monitoring of patient information and feed that information to decision support systems to make nurses more efficient.

Virginia nursing homes are not notable for either technological advance.

Vultures. Baby boomers and the preceding generation will pass down $84.4 trillion in assets through 2045, with $72.6 trillion going directly to heirs.

The fact that there are vultures circling that wealth is, to say the least, predictable.

So is the fact that some of them are in the nursing home industry.  But that industry is built on government payments, limiting the access to generational wealth.

Those who try to make very large profit margins on relatively small government payments by denying necessary staffing are bugs in that system that need to be stepped on.

When we compare financial results (posted by vhi.org) to CMS staffing data over the same years we can see understaffing to be a business model for some owners. Part of an investment strategy.

Unfortunately, the posted results are two years old, so that does not help judge what happened last quarter.  Under new ownership in some cases.  But two and three and four years ago we can see the patterns.

Many of those operators are still in control.  Some took control during COVID.

They don’t care if government watches, inspects, reports. They only care if it acts in ways that disrupt the model.  It seldom, if ever, does.

Bottom line.  We cannot let it be OK to understaff nursing homes as a business plan to increase margins and by that decision bring on the utterly predictable outcome of patient harm.

Other owners, while trying, have proven unsuccessful in providing the required care.

Both must be dealt with.

Next: Part 2 – State action required.