As many states have moved to tighten regulations in lockstep with the federal focus on nursing home reform, there’s often been an unexpected guest at the negotiating table.

Provider associations and individual nursing home leaders are often sitting alongside worker and patient advocates whose voices have more traditionally driven policy. 

The pandemic put many providers in the unusual position of being on the same side as powerful unions, both of them lobbying for resources that could make nursing homes safer during COVID-19 outbreaks. It makes sense to continue those alignments now, said Zachary Shamberg, president and CEO of the Pennsylvania Health Care Association, who recently helped negotiate a historic, 17.5% Medicaid increase after a nearly 10-year freeze for his state’s 700 nursing homes.  

“As we’ve talked about the state budget, as we’ve talked about a new regulatory outlook, patient advocates, provider advocates and worker advocates have all been at the table expressing their concerns and their ideas,” he told McKnight’s Long-Term Care News, noting current efforts to influence the state’s first revamp of nursing home regulations in more than 20 years.

“With this new regulatory proposal, we’ve come to find some common ground that is going to further providers, further our workforce and further quality care for our residents,” he said.

Provider groups are playing a bigger role in helping lawmakers and regulators understand how their proposals affect operations, interpret whether they might accurately address the targeted concerns, and identify alternatives that might help both providers and patients.

Much of that work is an outgrowth of increased advocacy for state funding.

In Ohio, provider advocates are hoping recent non-budget season talks about quality improvement payments, rebasing and even possible bed reduction strategies will lead to ongoing collaboration on issues at the heart of care quality.

“The quality program is the carrot,” Susan Wallace, president and CEO of LeadingAge Ohio, told McKnight’s. “The other issue is how you address bad actors…. If we can get past the payment conversation, I’d really like to talk about what we need to do with our survey processes, and are there other steps where we can assist the state of Ohio in identifying those problem facilities and moving them out of the space, frankly” 

Funding first, more rules next?

This bold tone on self-regulation is a tacit recognition that mounting pressure will catch up with the sector one way or another.  Where once provider groups might have tried to defeat legislation dictating how they operate, Shamberg said today’s leaders need to remain part of the conversation to help counter stereotypes that nursing homes are poorly run or bleeding residents dry. 

“There’s something to be said for providers stepping up, being vocal on an issue like this, for standing up and not allowing the bad actors to speak for the entire industry,” Shamberg said. “When indictments are announced or allegations [surface], it destroys the momentum we’ve built and all the hard work we’ve done. It destroys the credibility the last few months have brought with it.”

Access often comes with tradeoffs, in this case a willingness to accept future obligations in exchange for much-needed support.

Ohio is likely to move from four to seven long-stay quality metrics in its quality incentive program, but providers also have expressed willingness to support the restoration of an occupancy metric. High occupancy shows satisfaction, Wallace noted. Low occupancy, however, could cost providers bonus points that equate to real dollars. They might surrender some beds to boost their scores, and that’s an outcome leaders are willing to consider in exchange for better funding.

“It’s not something we want to take away, but if you can boost your payment score by giving up a few beds, maybe that’s a good thing overall for Ohio,” Wallace said. 

Pennsylvania followed other Northeastern states and hammered out an agreement requiring 70% of total spending go toward resident care and related costs starting in 2023. In addition to that, the state’s healthcare associations embraced the state’s first staffing ratios for CNAs and LPNs.

As part of regulatory talks, PHCA now is narrowing in on change of ownership regulations that could make it tougher for new corporations, REITS or other types of investors to gain a foothold in the state.

Logistics of regulation

Providers want a voice in a process that has recently been changed in Kansas, Oregon and other states looking to avoid receivership catastrophes like the one that followed the 2018 collapse of Skyline Healthcare.

Just how to spot and control potential failures is up for debate.

But lawmakers and policymakers benefit from allowing providers to participate in the legislative and rulemaking process, said Hedy Silver Rubinger, partner and head of the healthcare practice at Arnall Golden Gregory. She helps skilled nursing and other providers navigate the various change of ownership and change of management processes in place across the states. She’s also involved in efforts to manage reform.

“The reason you either want a trade association or providers at the table is because they provide insight into how these laws and policies apply in practice,” Rubinger said. “A provider or trade association can help explain to lawmakers what makes sense from a business and operational perspective. This involvement helps to ensure that the resources of both providers and regulatory bodies are used effectively.” 

While providers understand their obligation to comply with the regulatory process and ownership disclosures when properties change hands, Rubinger said, they also want the process to be efficient.

Finding a balance between a rubber stamp and a process so lengthy it discourages buyers is a key perspective Shamberg wants to bring to his lawmakers.

Opportunity for common ground

In Ohio, Wallce is using meetings outside of the budget process to better educate lawmakers for the next session and to iron out new incentives that drive change.

The post-COVID era is an ideal time to engage in deeper conversations about how to change for the future, she said, but also to bring up workforce issues, ongoing challenges with agency and other factors that might impede reform.

Ironing the wrinkles of a measures-based system is revealing other areas that might be easy to align on, too, she said. For instance, Ohio has a cost-based capital component that doesn’t incentivize providers to reinvest in their physical plant. Wallace has proposed moving that to a fair rental value-type calculation that would make more sense given federal pressure to innovate physical spaces and reduce dependency on shared rooms.

“We’ve got our necks out in front of the pack in terms of putting more money behind quality,” Wallace said. ”The question is what do we fund?”