Biden-Harris Administration’s Plans to Crack Down on Nursing Homes Indicate Upcoming Uptick in Survey Activity

Written by: Brittany H. Cone, Esq., Jordan Johnson, Esq., and Baylee A. Culverhouse, Esq.

On March 1, 2022, President Joe Biden delivered his first State of the Union address—announcing plans “to set higher standards for nursing homes” and to “crack down on the ‘Wall Street firms’” allegedly taking over nursing homes.[1] As part of its reasoning for the crackdown, the Biden-Harris Administration asserts that the COVID-19 pandemic “highlighted the tragic impact of substandard conditions at nursing homes,” pointing to the nearly 200,000 COVID-19 deaths that occurred in nursing homes during the past two years as substantiation for its claim.[2]

While President Biden’s State of the Union address provided very little detail on the intended next steps, one day prior to the address, the White House released a statement and accompanying fact sheet calling on Congress to provide nearly $500 million to the Centers for Medicare and Medicaid Services (“CMS”) to increase inspections in nursing homes.[3] In the statement, the Administration also outlined its plans for the establishment of new minimum staffing requirements, expanded penalties for “poor performing nursing homes,” improvements in transparency and Americans’ abilities to “comparison shop” for the best facility, a stricter value-based payment plan, and continued provision of COVID-19 testing and vaccinations at nursing homes.[4] The Administration’s set of reforms is addressed in more detail below.

Reforms Aimed at Quality of Care

CMS is launching four new initiatives aimed at increasing quality of care—the most significant of which will be the establishment of minimum staffing requirements in nursing homes. According to the White House Fact Sheet, “CMS will conduct a new research study to determine the level and type of staffing needed to ensure safe and quality care and will issue proposed rules within one year,” and “[n]ursing homes will be held accountable if they fail to meet this standard.”[5] This announcement comes amidst a nationwide staffing shortage that is especially plaguing healthcare and long-term care facilities. In fact, a recent survey of 1,183 nursing homes and assisted living providers performed by the American Health Care Association and National Center for Assisted Living revealed that 99% of nursing homes were facing staffing shortages, with 59% of nursing homes reporting “high level” shortages.[6]

In addition to the minimum staffing requirements, CMS is promoting single-occupancy rooms in an attempt to phase out rooms with three or more residents. The Administration said that “multi-occupancy rooms increase residents’ risk of contracting infectious diseases, including COVID-19.”[7]

The third quality of care initiative CMS is launching is a reform of the Skilled Nursing Facility (“SNF”) Value-Based Purchasing Program—a CMS program that awards SNFs with “incentive payments based on the quality of care they provide to Medicare beneficiaries, as measured by performance on a measure of hospital readmissions.”[8] CMS plans to alter incentive funding based on facilities’ staffing adequacy, resident experience, and staff retention. Lastly, CMS will supplement its existing National Partnership to Improve Dementia Care in Nursing Homes by launching a new effort to curb “inappropriate use of antipsychotic medications.”[9]

Reforms Aimed at Accountability and Oversight

Despite the industry’s grueling two-year fight with COVID-19, a common theme in the Administration’s proposed reforms is an increase in accountability. As such, the Administration is calling on Congress for approximately $500 million in increased funds to CMS (a nearly 25% increase) to fund inspections at nursing homes. In addition to increased inspection activity, CMS’s Special Focus Facility (“SFF”) program will undergo an overhaul. Currently, the SFF program selects under-performing nursing homes in each state and increases supervision of the facilities until they either “graduate” from the program or are terminated from the Medicare and/or Medicaid programs.[10] In practice, forced SFF program participation equates to more frequent surveying by the State Survey Agency and progressive enforcement actions for each violation. Now, CMS plans to implement changes that will toughen requirements on SFF program participants, move participants through the program more quickly in an effort to scrutinize more facilities, and increase enforcement actions on facilities that fail to improve.

CMS also plans to utilize “desk reviews of data submissions” (in addition to on-site inspections) to “expand the instances in which it takes enforcement actions against poor-performing facilities.”[11] The White House Fact Sheet references a Trump Administration policy that reduced penalty amounts by imposing only one-time fines instead of per diem fines, or those that charge facilities for each day they are out of compliance with a cited rule or regulation. In sharp contrast, CMS is now looking into making per diem penalties “the default” and noted that CMS will use data and analytics to predict and enhance enforcement. The Biden-Harris Administration is also calling upon Congress to increase the dollar limit on per-instance fines from $21,000 to $1,000,000 per violation.

Other accountability and oversight reforms include a call on Congress to give CMS the authority “to require minimum corporate competency to participate in Medicare and Medicaid programs, enabling CMS to prohibit an individual or entity from obtaining a Medicare or Medicaid provider agreement for a nursing home (new or existing) based on the Medicare compliance history of their other owned or operated facilities (previous or existing).”[12] The Administration also hopes to expand CMS’s enforcement authority based on ownership—allowing CMS to go beyond the corporate structure and impose penalties on owners and operators even after they close a facility’s doors.

Reforms Aimed at Transparency

Corporate transparency and accountability among owners and operators are also persistent themes present in the Administration’s reforms. According to the White House Fact Sheet, “[p]rivate equity firms have been buying up struggling nursing homes, and research shows that private equity-owned nursing homes tend to have significantly worse outcomes for residents”—including higher numbers of preventable hospitalizations, excess mortality rates, prescription of antipsychotic drugs, taxpayer spending per resident, and COVID-19 infection and death rates.[13] To combat this alleged phenomenon among “predatory owners and operators,” CMS is creating a new database to track and identify owners and operators with previous health and safety issues. In addition to existing data collected through provider enrollment and surveys, CMS will begin collecting more corporate ownership and operating data to report to states and potentially to the public.

CMS’s existing facility database, Nursing Home Care Compare (“Care Compare”), will also get an overhaul. Available as part of Medicare.gov, Care Compare is a website that rates facilities based on their performance in certain categories, including health inspections, staffing, and quality measures.[14] Users are then able to compare facilities based on these ratings to others in the area when picking a facility for themselves or loved ones. As part of its reforms, CMS will soon begin including facilities’ compliance with minimum staffing requirements on Care Compare (once the staffing requirements are determined and finalized). Additionally, the Administration is calling upon Congress to expand CMS’s authority to validate self-reported data and levy penalties on facilities that submit incorrect information.

Other Reforms

Other reforms proposed by the Administration include the development of policies pertaining to nursing home staff and pandemic and emergency preparedness measures in facilities. In terms of labor, “CMS will establish new requirements to ensure nurse aide trainees are notified about their potential entitlement to training reimbursement upon employment” and will work with states to distribute reimbursement and free training opportunities.[15] Additionally, CMS will partner with the Department of Labor and other “external entities” (including labor unions) for “a robust nationwide campaign to recruit, train, retain, and transition workers into long-term care careers.”[16]

In terms of pandemic and emergency preparedness, the Administration will continue current COVID-19 testing and vaccination provision efforts, and CMS will increase required staffing levels of on-site infection prevention employees. CMS is also considering updating the requirements of participation in Medicare and Medicaid to include new fire safety, infection control, and other updates “using an equity lens.”[17]

What Does This Mean for Providers?

While the Biden-Harris Administration’s announcement has not changed anything for nursing homes yet, these reforms indicate an upcoming uptick in survey activity and increased penalties at nursing homes across the country

 

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[1] The White House, Remarks of President Joe Biden – State of the Union Address As Prepared for Delivery (Mar. 1, 2022), https://www.whitehouse.gov/briefing-room/speeches-remarks/2022/03/01/remarks-of-president-joe-biden-state-of-the-union-address-as-delivered/.. Staffing shortages at facilities will most likely worsen, requiring nursing homes to come up with more long-term solutions than asking current staff to work overtime or extra shifts, hiring temporary staff, or limiting new admissions. As providers wait for these reforms to take shape, Hall Booth Smith, P.C. and its team of professionals are here to help providers navigate the changing landscape of nursing home regulations.

[2] The White House, FACT SHEET: Background on President Biden’s Remarks on the Economy During His First State of The Union Address (Feb. 28, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-background-on-president-bidens-remarks-on-the-economy-during-his-first-state-of-the-union-address/.

[3] See id. See also The White House, FACT SHEET: Protecting Seniors and People with Disabilities by Improving Safety and Quality of Care in the Nation’s Nursing Homes (Feb. 28, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.

[4] The White House, supra note 2.

[5] The White House, supra note 3.

[6] American Health Care Association and National Center for Assisted Living, State of the Long Term Care Industry (Sept. 2021), https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/Workforce-Survey-September2021.pdf.

[7] The White House, supra note 3.

[8] Centers for Medicare & Medicaid Services, The Skilled Nursing Facility Value-Based Purchasing (SNF VBP) Program, CMS.gov (Mar. 4, 2022, 10:52 AM), https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/Value-Based-Programs/SNF-VBP/SNF-VBP-Page.

[9] The White House, supra note 3.

[10] Centers for Medicare & Medicaid Services, Special Focus Facility (“SFF”) Program (Feb. 2022),  https://www.cms.gov/Medicare/Provider-Enrollment-and-certification/CertificationandComplianc/downloads/sfflist.pdf.

[11] The White House, supra note 3.

[12] Id.

[13] Id.

[14] Medicare.gov, https://www.medicare.gov/care-compare/?providerType=NursingHome&redirect=true (last visited Mar. 7, 2022).

[15] The White House, supra note 3.

[16] Id.

[17] Id.