Industry lobbying left nursing homes vulnerable in pandemic - North Carolina Health News

By Sidney Madden, Braeden Waddell and Yanqi Xu, Investigative Reporting Workshop

This story was originally published on The Midwest Center for Investigative Reporting. Published in collaboration with the Investigative Reporting Workshop.

Even before COVID-19, aides caring for elderly and disabled people in nursing homes often were overworked and underpaid, doing everything from changing linens to helping residents eat to physically rotating them to prevent bed sores.

Ashley Ford often was one of four aides for as many as 42 residents at the Indiana nursing home where she’s worked since early 2019. She sometimes skipped breaks when work got busy so she wouldn’t leave patients waiting.

“There’s just not enough time to do everything we’re supposed to within our shift and answer all the call lights and make sure everybody’s in bed and changed and rounds and our charting and stacking the shelves,” she said. “If you didn’t smoke, we really didn’t get a break.”

That was before the pandemic.

Since March 2020, the 25-year-old from DeMotte, Indiana, has watched co-workers at Parkview Haven nursing home in Francesville leave for other jobs. Those who stayed were left to pick up the extra shifts. Ford said she made $11 an hour until late October, when management bumped her up to $14.

By fall 2020, Ford said she often was one of just two aides for the entire facility during her evening shifts.

“That’s a lot on one person,” she said.

As at Ford’s Indiana facility, the pandemic has compounded the chronic problem of inadequate staffing and low pay at nursing homes nationwide. Since the first U.S. case of COVID-19 at a nursing home was confirmed in Kirkland, Washington, in late February 2020, facilities have faced more than 1.1 million cases among staff and residents and more than 129,000 deaths.

But the nursing home industry has fought legislative efforts to improve staffing, spending millions in lobbying money to prevent reform.

Just months before the pandemic hit, the industry’s largest lobbying group came out against proposed staffing level mandates.

“Today, our profession suffers from a critical workforce shortage and setting minimum staffing levels will not solve that issue,” said Mark Parkinson, president and CEO of the American Health Care Association and National Center for Assisted Living. The trade group represents more than two-thirds of the nation’s 15,000 nursing homes that provide medical and personal care, as well as thousands of assisted-living centers, which primarily provide personal care, and other long-term care facilities.

The group has spent more than $30 million lobbying Congress and millions more through its state affiliates since 2010, according to a review of state and federal lobbying data by the Investigative Reporting Workshop.

The long-term care industry has long used its political influence to push against reforms that would have increased staffing requirements, training, transparency and oversight.

Now, the industry is pushing for — and in some states, successfully passing — legislation to shield nursing home owners from lawsuits during the pandemic.

“This industry was not ready for a pandemic,” said Lori Porter, co-founder and CEO of the National Association of Health Care Assistants, an advocacy worker group that represents more than 26,000 certified nursing assistants, or CNAs, across the country.

“The only positive to come out of COVID,” she said, “is if nursing homes can be lifted up by America, rather than kept down.”

Concern before pandemic

Nursing homes throughout the U.S. say they’re understaffed, undersupplied and underfunded in the fight against COVID-19. But the problems began long before the virus hit.

Federal data from 2017-2018 showed that 75% of nursing homes didn’t have enough registered nurses on staff. A Government Accountability Office report published in May showed that more than 80% of nursing homes had infection control violations from 2013 to 2017.

Most nursing homes with infection control violations were issued warnings rather than fines, so many never corrected the problems. The Trump administration in 2017 changed penalty rules, including reducing fines for serious violations

Even as the pandemic took hold, the Centers for Medicare & Medicaid Services reported in April that 36% of nursing assistants weren’t washing their hands properly and 25% weren’t correctly using protective equipment.

But AHCA said in an email to IRW that past infection control deficiencies were not connected to the spread of COVID-19. “Even the best nursing homes with the most rigorous infection control practices could not stop this highly contagious and invisible virus,” it said.

Experts like Charlene Harrington, professor emerita of social and behavioral sciences at the University of California San Francisco and an expert on nursing homes, said the multi-billion dollar industry “cut corners” to save money leading up to the pandemic by allowing low staffing, low wages and inadequate enforcement of infection control plans.

“(AHCA) is the lobbying arm, and they’re the ones pushing Congress for all this money and saying they didn’t have the money, and so ‘it wasn’t their fault’ that all these patients died,” Harrington said. “There’s a lot of things they could have done to prevent the deaths.”

The trade group also told IRW that enforcement actions, both before and during the pandemic, don’t help nursing homes address the root causes of infection control issues.

“For years, we’ve been advocating to policymakers that incentivizing providers to improve rather than solely punishing with fines is the better path to foster quality care,” AHCA wrote in an email to IRW.

In late 2019, U.S. Rep. Jan Schakowsky of Illinois introduced legislation to mandate nationwide minimum staff hours. The law would have required each resident to get 4.1 hours of total care from staff a day — the standard academics and advocates have recommended for years. Facilities that failed to comply would have been fined up to $10,000.

But industry lobbyists pushed back and the bill never made it out of committee. AHCA said facilities need more federal funding to pay competitive wages and congressional support for recruitment programs before it can focus on improving staffing levels.

Just months after Schakowsky introduced the bill, the first U.S. COVID-19 case in a nursing home was reported.

‘Sufficient staffing’

Staffing problems can be traced to vague federal standards in the Nursing Home Reform Act of 1987, then considered landmark legislation for nursing home residents because it set a federal standard for quality care and established legal protections for residents. The law required long-term care facilities to have a registered nurse for eight consecutive hours, seven days a week, as well as a licensed nurse 24 hours a day.

But the law didn’t include specific requirements for all staff. UC-San Francisco’s Harrington was on the committee that drafted the proposal, saying she and others settled on “sufficient staffing” for nurse aides because they worried specific ratios would prevent the measure from passing.

In Indiana, where Ford works as a CNA, there is no set minimum ratio for nurse aides, but even in states with explicit staff-to-resident ratios, facilities often fail to meet those benchmarks.

A large body of research has shown the benefit of more one-on-one care. A study published in June found that lax enforcement of federal staffing requirements in nursing homes led to worse health and safety outcomes. California nursing homes with COVID-19 cases also had 25% fewer registered nurses than facilities with no COVID-19 cases.

AHCA said the notion that its past lobbying efforts against minimum staff ratios increased risks for nursing homes was a “red herring” that “ignored the facts on why this virus took such a toll on our residents and staff.” Instead, the trade group said that infection rates in nursing homes are correlated with COVID-19 spread in the communities where facilities are located.

But many experts and advocates agree that the spread of COVID-19 in facilities was affected by low staffing and poor wages that have been recognized in the industry for years.

David Grabowski, a Harvard professor and expert in nursing homes and health care policy, who AHCA cites, said the situation is more nuanced. He said that while his research shows community spread has been the most important factor when explaining which nursing homes will have outbreaks, once a nursing home actually has a case, its ability to effectively handle the situation depends on having a full staff and proper equipment.

“Nursing homes would have been better able to protect residents from major outbreaks with more staff,” Grabowski said in an email. “Staff were largely underpaid and undervalued before and during this pandemic. Moving forward, the way to protect nursing home residents is to properly compensate staff such that nursing homes do not have the shortages observed during the pandemic.”

An industry that made billions 

The 10 largest nursing home chains own about 13% of facilities across the country. In 2019, their combined profits exceeded $20 billion; their top executives make millions in salaries and bonuses.

At Genesis Healthcare, the country’s largest nursing home chain, CEO George Hager Jr., who retired in January, made nearly $3 million in salary and bonuses in 2019.

AHCA’s Parkinson, recently named a 2020 top lobbyist by The Hill, a news site that covers politics in Washington, D.C., received more than $2 million in salary and bonuses in 2019, according to IRS records. Other top AHCA staff made between $300,000 and $700,000 that year.

The CARES Act, signed into law in March 2020, included $175 billion for health providers treating COVID-19 patients. The federal stimulus package passed in December allocated nearly another $70 billion.

Still, the industry has maintained for years that nursing homes are on the verge of financial disaster.

Increasing state Medicaid funding is a key goal for industry lobbyists because 62% of nursing home residents are covered by the public insurance program. Medicare accounts for about 12% of payments, but it typically covers patients for a limited time. The rest comes from private insurance or the patients themselves. Medicaid pays nursing homes, on average, about 70% of the cost of private pay.

Many patients who stay in a skilled nursing facility long term spend their assets and eventually qualify for Medicaid. The average cost of a shared room is about $6,800 a month per resident, according to HHS figures.

Porter, who leads the group representing CNAs, said the blame for the situation facing long-term care facilities rests equally on the federal government and on nursing home corporations. Until “the dance between CMS and the nursing home providers” ends, she said, residents and workers will pay the price.

A dangerous job

Nursing home workers have been among the hardest hit by the pandemic.

More than 546,000 nursing home workers across the U.S. have been infected with COVID-19 and more than 1,590 have died as of Feb. 14, according to CMS data. But a new report shows New York significantly undercounted COVID-19 deaths in nursing homes, and the Indianapolis Star reported last month that Indiana nursing homes failed to report nearly one in 10  COVID-19 deaths in nursing homes.

If similar patterns emerge across other states, total COVID-19 deaths could be significantly higher than the numbers previously reported by CMS.

Nurse aides are primarily women, people of color and immigrants, according to a September 2020 report from PHI, a nonprofit that advocates on behalf of direct care workers. More than a third of CNAs rely on some form of public assistance and 17% live below the federal poverty level. Their wages, when adjusted for inflation, average a little less than $14 an hour.

The pandemic simultaneously put a spotlight on two at-risk populations: the residents and the workers. Harvard’s Grabowski said the failure to provide nursing homes with adequate personal protective equipment, including N95 respirators and face shields, demonstrates a broader issue.

“We’ve tended to undervalue and exploit these workers, many of them are immigrants, many persons of color, predominantly women,” Grabowski said. “There’s a reason that we pay them minimum wage and don’t really provide them with suitable benefits: It’s because we are exploitative.”

Because wages are low, he said many nurse aides work at multiple facilities, potentially spreading COVID-19 from one long-term care facility to another, as well as to their families and communities.

Legislation passed by Congress in summer 2020 exempted long-term care workers from paid medical and family leave. It allowed employers to deny health care workers time off during the pandemic through the end of 2020.

Brian McGarry, a researcher at the University of Rochester Medical Center who worked with Porter and Grabowski to calculate mortality rates for nursing home workers, said that the rate was so high over the summer that, even as it dropped, “the margin went from horrific to really, really bad.”

By the end of 2020, nursing home workers had a death rate of 163 per 100,000 workers, higher than commercial fishing and hunting, logging and flying, which regularly appear at the top of the Bureau of Labor Statistics’ annual list of deadliest jobs.

Lowering standards

Desperate to shore up staffing, nursing homes have hired temporary aides and supported measures to allow workers to be hired with less hands-on training.

Days after CMS announced the waiver to reduce education requirements for nurse aides, AHCA notified providers its lobbying efforts had succeeded, offering free eight-hour online courses for temporary nurse aides in a growing number of states.

Reduced training could persuade retired licensed professionals or qualified health care professional immigrants to join the workforce because the barrier to entry is lowered, said Stephen Campbell, data and policy analyst at PHI. But he also said nursing assistants who don’t get hands-on training may not learn correct infection control procedures or how properly to move residents, ultimately compromising the quality of care.

Nursing homes certified through Medicare and Medicaid require at least 75 hours of training, but advocates for workers and patients have long sought as many as 120 hours.

The 30 states that require more training than the federal standard have faced opposition from the industry, which has actively lobbied to lower training requirements.

No state has escaped the devastation of COVID-19 or the fight over what constitutes adequate training, and Midwestern states’ various approaches further signal the difference in care from state to state.

In fall 2019, the Wisconsin Legislature passed a bill to reduce training for CNAs from 120 hours to 75.

But the state’s Democratic governor, Tony Evers, vetoed the bill.

“There are better ways to address the shortage of nurse aides than reducing the quality of training programs,” Evers said at the time.

The reduction of training hours was proposed again in April as part of a broader COVID-19 relief bill. It passed and Evers signed it this time, not as a temporary provision during the pandemic, but as a permanent change in the law.

Helen Marks Dicks, state issues advocacy director for AARP’s Wisconsin branch, said she felt the governor had been forced to accept the provision in order to get a pandemic relief package signed. Still, she said AARP pushed back hard against reducing training.

“Lower standards and deprofessionalizing reduce not only the quality of care, but don’t help with retention and recruitment of people,” Dicks said.

In Iowa, advocates and industry lobbyists have clashed over training programs for years. An advisory council proposed a Board of Direct Care Workers in 2012, which would have overseen a new training and licensing system and a centralized direct care worker registry. A similar bill was introduced in early February.

Advocates like Di Findley, executive director and founder of the nonprofit Iowa CareGivers, said such comprehensive, ongoing education would help retain and recruit workers. But the Iowa Health Care Association argued a licensing board and more training would create additional barriers for those trying to enter the workforce.

While the bill to implement the training system didn’t pass, the council was given funding to distribute the curriculum to interested providers and community colleges for a few years.

Findley said recently that improved training and staffing proposals could have given Iowa a “National Guard of caregiving” better prepared to fight the current pandemic.

PHI’s Campbell said he worried that temporary relaxing of training requirements in individual states would last beyond the pandemic and affect policies nationwide.

A new bill introduced in the U.S. House in December would allow temporary nurse aides to continue their jobs with less training after the pandemic. The measure has not yet been addressed by the House.

“There often isn’t a reverse gear in health care policy,” Campbell said. “I’m fearful that this is going to … lead to a systemic undervaluing of the skills these nursing assistants need and the value of training as a recruitment and retention tool.”

Immunity from lawsuits

Since the pandemic began, Congress, state legislatures and governors have introduced measures to protect nursing homes and other businesses from lawsuits.

U.S. Senate Republicans introduced legislation in July that would shield businesses from coronavirus-related lawsuits. Industry leaders say the immunity is necessary at a time of supply and staff shortages.

But advocates worry that such industry protections could harm residents.

The Safe to Work Act would grant “blanket immunity to nursing homes from liability for all negligent care that harms residents for the next five years,” a group of 16 advocacy groups wrote in a letter to congressional leaders. It would, they said, allow “nursing homes to provide that care without fear of repercussion.”

Advocates for nursing home residents say the federal legislation lost momentum when Republicans lost seats in the Senate. But nursing facilities already are shielded from some coronavirus-related lawsuits in more than 30 states and counting because of executive orders issued by governors and bills passed by state legislatures.

Illinois Gov. J.B. Pritzker signed an emergency order in April protecting nursing homes from most malpractice suits, even those not related to coronavirus. Emails obtained by the Chicago Reader show that Pritzker and his staff had been corresponding and consulting with industry leaders before issuing the emergency order; those opposed to the measure say they were left out of the conversation.

The governor’s executive order expired June 27.

Before the order expired, Republican state senators introduced a measure to extend legal protections to nursing homes and other health providers. The session ended before the bill came up for a vote.

State legislatures across the country are pushing for similar bills to protect the industry. The American Legislative Exchange Council, a conservative group, drafted a sample bill for state lawmakers to use.

Iowa nursing homes were protected as part of the state’s coronavirus immunity bill. Passed late at night in June without public input and signed days later by the governor, the bill protects providers from lawsuits from employees, residents and their relatives involving coronavirus infections, hospitalizations or deaths. The Iowa Health Care Association publicly supported and defended the legislation, saying families and residents would still be able to sue if nursing homes intentionally or recklessly caused harm.

The Wisconsin measure signed in April, supported by Wisconsin’s AHCA affiliate, provides more protections, including granting immunity from any accusations of abuse, neglect or failure to act quickly during the state of emergency in response to the pandemic by health care providers.

Arbitration vs. lawsuits 

Legal protection for long-term care providers is not new. Sam Brooks, project manager at the advocacy group the National Consumer Voice for Quality Long-Term Care, said “nursing homes try to absolve themselves [from negligence] in as many as ways they can.”

The long-term care industry and patient advocates have clashed for years over the use of nursing home resident arbitration agreements, which means that residents must settle disputes out of court. Legal experts argue arbitration is a form of immunity because it often favors corporations over patients and because these proceedings are not made public.

Mike Bonamarte, a Chicago-based attorney who has represented families in lawsuits against long-term care operators, said arbitration and immunity “are all part of the same mindset of the nursing home industry to try to limit the rights of nursing home residents and their families in speaking out against neglect and abuse.”

Advocacy groups for long-term care residents say lawsuits can be employees’ and residents’ only legal protection now because the pandemic has suspended many forms of typical oversight, including visits from the long-term care ombudsman, state licensing and certification agencies, adult protective services and friends and family.

In 2016, CMS banned use of arbitration agreements in long-term care facilities that received Medicare or Medicaid. AHCA, along with the Mississippi Health Care Association and three providers, sued CMS, and a federal court stopped the agency from enforcing the agreements. CMS reversed the ban two years later.

The Fairness in Nursing Home Arbitration Act was introduced in Congress in late 2019 but never came up for a vote. AHCA defended arbitration, calling it a “fair and efficient legal remedy” for patients and providers that resulted in “reasonable damages, oftentimes equal to the amount that would be awarded under litigation.” That statement was made despite AHCA’s own 2009 study that found plaintiffs can be awarded as much as 35% less from arbitration than what they’d get in traditional litigation.

A U.S. District Court upheld a CMS ruling to limit pre-arbitration agreements in April 2020, but AHCA had already shifted its lobbying efforts to giving nursing homes immunity during the pandemic.

The ‘legal screen’ protecting nursing homes 

As the pandemic hit nursing homes, families struggled to get information about the facilities. CMS published its first report on COVID-19 in nursing homes in June.

AHCA’s Parkinson was the Kansas lieutenant governor when then-Gov. Kathleen Sebelius was confirmed to lead the U.S. Department of Health and Human Services. He served as governor for 22 months, leaving office in January 2011. In his role with AHCA, Parkinson urged members to report COVID-19 cases to the government “to make it clear that long term care facilities support transparency.” But the trade group has often pushed against transparency measures, supporting state and federal initiatives that made it harder for residents and their families to report abuse, neglect and assault.

A 2011 Wisconsin bill supported by AHCA’s state affiliate proposed sealing nursing home abuse investigation records. The bill passed and state health investigation records were made inadmissible in lawsuits involving abuse and negligence in nursing homes.

The records are posted online, but Wisconsin nursing homes have a history of failing to report neglect and abuse. That history, coupled with the change in the law, made finding and stopping abuse more difficult.

“They just built a huge legal screen around nursing homes, so that family members and consumers could not sue nursing homes over quality of care and get any meaningful records into the record of the arbitration,” AARP’s Dicks said.

Decreased reporting also often means less oversight.

The Iowa Legislature passed a measure in 2009 that decreased fines for common violations as long as nursing homes report, identify and correct the violation before a state inspector arrives. It doubled fines for less common, more serious violations, such as death or severe injuries. The reforms were a key agenda item for the Iowa Health Care Association, which represents the state’s nursing homes.

Nursing homes with insufficient staffing or no qualified nurses on duty “save money by just paying the fines and not having to make the improvements,” said Harrington, the University of California San Francisco professor emerita and aging expert.

With less oversight, state lawmakers and industry officials showed up at nursing homes to try to intimidate inspectors, according to a 2009 GAO report. And while 2010 gubernatorial candidate Terry Branstad promised a “collaborative” approach to nursing home inspections, Gov. Branstad’s appointed appeals director eliminated 10 inspectors, leaving 28 inspectors for 30,000 residents in 442 nursing homes.  A decade later, the state has added 20 more long-term care surveyors.

Because of the pandemic, CMS suspended all non-emergency inspections of Medicaid-funded nursing homes nationwide, allowing only focused infection-control inspections that “minimize the impact on provider activities.” State inspectors didn’t conduct any routine inspections between early March and Aug. 17, 2020, when the surveys resumed, according to CMS spokesperson Gregory Myers.

Harrington said the response to the pandemic was “the opposite” of what needed to happen. CMS should have increased staff and sent more inspectors and ombudsmen, she said, not work with such a short staff and stop visitation altogether.

“It couldn’t be worse” than during the Trump administration, she said about the future of nursing homes under President Biden, adding that there needs to be a push to keep improving conditions in nursing homes even once the pandemic is over.

But back at Ashley Ford’s Indiana nursing home, the problems have multiplied.

Mechanical lifts that aides use to move residents require two people to operate. If Ford can’t find help, she said, residents might wait more than an hour before they’re transferred into bed. Some sit on the toilet waiting for busy aides who are needed by multiple residents at the same time.

For months while the facility waited for N95 masks to come, management posted a sign instructing staff to put their blue surgical masks in paper bags to wear again later, a “crisis capacity” recommendation from the Centers for Disease Control and Prevention.

“It’s totally unfair to me, and it’s totally unfair to the residents,” Ford said in September.

In mid-November, a worker tested positive for COVID-19 at Parkview Haven, according to the Indiana Department of Health.

Sharon McKinley, executive director of the Pulaski Health Foundation, a nonprofit that operates Parkview Haven, said the nursing home had been doing well until the outbreak hit. McKinley said testing delays made it hard to catch before it spread. Separating residents also was a challenge. By the time a staff member first tested positive, residents and other staffers had been exposed.

A month later, 23 residents had tested positive and 13 had died from COVID-19 according to state numbers. McKinley said, to her knowledge, 12 residents had died from the virus.

At the height of the outbreak in the facility, Ford said staff took more precautions — putting on new gowns, gloves and face shields before entering each room. Twenty-five staff members tested positive during the outbreak, according to state data.

Looking toward the future, McKinley said the majority of staffers at Parkview Haven are now vaccinated, but that the trauma from the outbreak was not forgotten.

“Sometimes they had four people die in one evening,” McKinley said, adding that she is looking into counseling services for staff members. “The people that work in those facilities, they’re there because they care about the residents.”

The issues facing nursing home staff and residents won’t end after the pandemic, Harrington said. “The danger is just reverting back to the old way of doing things instead of really trying to get the situation straightened out.”

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