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Black and low-income Virginians are disproportionately affected by nursing home understaffing

State-imposed staffing requirements could be a fix, analysts say

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For nearly two decades, Virginia’s General Assembly has failed to land on a legislative solution for understaffing in nursing homes. Setting requirements for facilities could be one of the most effective ways of addressing the problem, according to a new report presented to lawmakers this week.

The move would set legislators against the nursing home industry, which has long lobbied against minimum staffing standards. But analysts for the state’s Joint Commission on Health Care found that Virginia ranks below the national average when it comes to adequately providing care.

Nationwide, 31% 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. The ratings are based on the expected number of direct hours needed to care for patients living in the facility, who often have different levels of acuity.

“Virginia has more facilities with low staffing ratings than other states,” said Kyu Kang, an analyst for the commission, at a meeting on Tuesday. Statewide, 43% of nursing homes have a one- or two-star score. It’s an issue of patient care, and also of inequity, according to the report. Facilities with inadequate staffing are more likely to receive lower scores on quality and health inspection assessments. 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.

“There’s significant overlap in the populations we’re studying,” Kang said. “Facilities with a greater percentage of Medicaid residents also serve a greater percentage of Black residents.”

Solving the problem through policy, though, has frequently been a challenge in the General Assembly. Laws to set minimum staffing requirements have been introduced every year for nearly two decades with growing bipartisan support, including from Del. Vivian Watts, D-Fairfax, and Sen. Jennifer Kiggans, R-Virginia Beach, a geriatric nurse practitioner.

So far, nothing has passed. There’s broad acknowledgement among advocates, legislators and the industry that the state’s Medicaid reimbursement rates for nursing homes — the single largest source of payments for most facilities — don’t cover the true cost of care. Because of Virginia’s more stringent requirements for approving admission to nursing homes through Medicaid, residents often require more assistance with daily living than in other states. And the commission’s most recent report found that a growing number of residents have behavioral health needs that aren’t factored into reimbursement rates.

“The rate methodology really focuses on physical health needs and does not focus on mental health,” said Steve Ford, senior vice president of policy and reimbursement for the Virginia Health Care Association-Virginia Association of Assisted Living — an industry group representing state nursing homes.

With already low reimbursement rates, requiring facilities to hire more caretakers would also require the state to increase its spending on Medicaid. The report estimated that minimum staffing standards could cost Virginia an additional $14.1 million a year — a figure that would be matched by federal funds.

“There is a significant fiscal impact,” said Sen. George Barker, D-Fairfax, the vice chair of the commission. “So that does make it a little challenging.”

Legislators, though, say the urgency has increased over the past year and a half. “I think the dynamics have changed largely because of COVID,” said Del. Patrick Hope, D-Arlington, the chair of the commission. To date, long-term care facilities have accounted for just over a third of Virginia’s total coronavirus deaths, according to data from the state Department of Health.

In many cases, staffing levels played a crucial role in how well facilities responded to an outbreak. Skyview Springs, a nursing home in Luray, was cited multiple times by state regulators last May when an inspection found that more than 60% of its residents tested positive for coronavirus (24 ended up dying from the virus). Employees didn’t isolate COVID-19 -positive patients from negative ones, with one worker blaming “staff limitations” that made it difficult to separate the patients.

“I think it has really shone a big light on the disparities that we have within our congregate care facilities — especially nursing homes — in how understaffed they were,” Hope said. “So this is a great opportunity to take advantage of that.”

Representatives for the industry say that Medicaid reimbursement rates have always been the primary problem for nursing homes in Virginia. Keith Hare, the CEO for VHCA-VCAL, said rates should be raised without setting new and potentially difficult requirements for facilities, which are struggling — like much of the most of the health care industry — to hire and retain staff.

But while there’s wide consensus among legislators that increasing payments should go hand-in-hand with staffing requirements, analysts found that raising reimbursements alone was less effective than setting minimum ratios. “In states that tried to start first with just increasing Medicaid reimbursements rather than putting a staffing mandate into place, that did help, but not as much as the mandates in terms of actually getting those numbers up,” Kang said.

The majority of states already have requirements in place, either through minimum staff-to-patient ratios, a minimum number of direct care hours, or a combination of both. Hope said the latest report — unlike previous studies — offered strong options on how both to structure the mandate and how to fund it.

Legislators could implement across-the-board staffing requirements for nursing homes or an “acuity-based” formula determined by patient needs — an option Barker said would better serve patients with more intensive demands for care. The study also listed various options for raising Medicaid funding, including the re-establishment of an estate tax in Virginia or an annual fee on nursing homes.

Virginia is one of only six states without an industry assessment, but there is a precedent for it. The state funded the expansion of its Medicaid program in 2018 by implementing a new fee on hospitals, which, before the law passed, often absorbed the cost of caring for low-income, uninsured patients.

“I think we have plenty of options on the table and it could be a combination of funding mechanisms,” Hope said. Less certain is whether Medicaid reimbursements would be raised to incentivize higher wages for nursing home staff, who frequently only make between $14 and $15 an hour, according to a recent report from another state workgroup.

Employee recruitment and retention has long been a challenge for the industry, which has often blamed workforce shortages for the inability of many nursing homes to provide adequate staffing — and as an argument against minimum staffing requirements.

Del. Mark Sickles, D-Fairfax, a member of the Joint Commission on Health Care, said Virginia could do more to promote geriatric care and bring more professionals into the field. He’s also promoted incentives for nursing homes that do more to increase staffing — including language in the latest budget that directs the state’s Department of Medical Assistance Services to develop a program that would award higher reimbursement rates to facilities with better performance scores.

Analysts were skeptical that setting staffing requirements would be an insurmountable barrier for the industry.

“There was consensus” — among nursing home leadership and staff — “that workforce shortages are at the heart of the issue” the report reads. “But the facility-level data indicate that most Virginia nursing homes are able to overcome the shortages and meet minimum staffing levels based on CMS expectations.”

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