It is regrettable that 17 state attorneys general are grandstanding by demanding — in a letter initiated by California Attorney General Xavier Becerra — that federal government impose stricter nursing home regulation and sanctions.
The letter shows no real understanding of skilled nursing care or its challenges. Instead, it is arguably designed to assist Becerra, an appointee, in his tough primary.
According to a report to Congress in March, the average nursing home had only a 0.7% profit margin in 2016, due largely to state Medicaid reimbursement that falls far short of meeting care costs. Yet Becerra and his colleagues feel the only way to improve nursing home quality is to further subtract resources from care through punitive fines.
This has always been a paradox: Governments unwilling to pay for care then fining for deficiencies in its provision. Guess who such fines affect? Most Medicaid care costs are wages, and most residents are on Medicaid. According to the Paraprofessional Healthcare Institute, 91% of nursing assistants are women, and 20% are immigrants.
Becerra and his colleagues also demand that the federal government not delay in implementing new regulations adopted in October 2016 as the Obama Administration was going out the door. What they fail to mention is that the same regulations they praise also acknowledged — on page 166, IF you could read that far in — that the cost of implementation would be “about $831 million in the first year and $736 million per year for subsequent years.”
No federal funding accompanied this new federal mandate, nor have states seen fit to fund it. As the rules note, “the average cost per facility is estimated to be approximately $62,900 in the first year and $55,000 in subsequent years.” While that may not seem like much to Becerra, who makes $170,080 a year, it is a huge amount for many facilities to absorb within the limited means provided by most state governments, and the new standards are quite complicated. At a minimum, some delay is helpful in the transition.
Indeed, a more productive approach for Becerra and his colleagues to take would be to challenge their states’ failures to make adequate provision for their most vulnerable residents. Signatories to the letter include Illinois Attorney General Lisa Madigan. What does she make of the lawsuit filed on behalf of over 100 Illinois nursing homes over the state’s Medicaid rates failing to support quality care? Or of Illinois seniors who have faced state Medicaid delays so severe that, in a lawsuit granted class action, they allege one woman went blind waiting for eye care?
Mississippi’s attorney general, Jim Hood, also signed Becerra’s letter. Among other horrors Hood might focus upon, Mississippi leads the nation in tooth loss for the elderly, due to atrocious Medicaid coverage.
The letter correctly points out that, with the 65-and-older population rapidly growing, “Ensuring that this expanding vulnerable population receives quality care will require significant resources[.]” But those resources cannot only be regulatory or punitive. At least some resources must be provided to actually sustain care. The letter makes too much of the fact that “[o]nly 6.5 percent of facilities nationwide had no deficiencies in 2016.” No other healthcare settings are regulated like nursing homes.
Actual examples of noncompliance might be a resident’s eyeglasses being out-of-reach; a resident’s anxiety exacerbated by a staffing agency nurse failing to announce herself at the door; or forgetting to leave a fearful resident’s bathroom light on. Where deficiencies are found, plans of correction are implemented, and many deficiencies are very easily fixed — such as keeping those eyeglasses bedside, knocking-and-announcing, and turning on the bathroom light.
Challenges to long-term care cannot be fixed only by relaxing regulations. But neither can they be solved by piling them on.
Brendan W. Williams, M.A., J.D., is the president and CEO of the New Hampshire Health Care Association.