Advocates say they were left out of talks on nursing home staffing

By Jamey Dunn

Changes to the state’s Medicaid program, which Gov. Pat Quinn recently signed into law, were heralded as historic reform and are expected to shave billions off the state’s liability under the program. But the sweeping plan also attempts to resolve some longstanding disputes over health care policy in Illinois. This is part two in a two-part series that looks at those components of the new law.

Advocates say they were cut out of the process to determine nursing home staffing level requirements after the issue was pulled into negotiations over the Medicaid legislation.

There was some debate over staffing requirements included in sweeping nursing home reform passed in 2010, and the Joint Committee on Administrative Rules (JCAR) took up the issue this spring.

The reforms were spurred by investigations by the Chicago Tribune and The Chicago Reporter, which revealed neglect in the state’s nursing homes. The Tribune focused on the violent results when younger mentally ill patients were housed with older residents and adequate supervision was not supplied. The Reporter focused on the disparity of care between nursing home that served predominantly black and Hispanic residents compared with those that housed mostly white residents.

When looking at both issues, lawmakers agreed that increasing staffing levels and more hands-on care would help to address some of the problems. So, requirements for how much direct care each patient must receive were increased under the 2010 legislation, but a disagreement broke out in the industry over who must provide such direct care — registered nurses or lesser-trained and generally less-expensive caregivers. It was left to JCAR to decide.

The law requires that patients receive 3.8 hours of direct care each day by 2014. Patient advocates were pushing for 20 percent of that care to be provided by RNs. But many in the industry argued that such requirements would be too costly for some nursing homes, and licensed practical nurses or certified nursing assistants would not provide any lower quality of care.

Negotiations stalled, and JCAR postponed voting on the issue. “We were going through what I thought we’re honest negations. Negotiating in good faith,” said Chicago Democratic Sen. Jacqueline Collins. She said the advocates were pushing for 20 percent of direct care to be provided by RNs, while the industry was pushing for 10 percent. She said if negotiations had continued, it was likely that the two groups might have met in the middle at 15 percent. However, they never got the chance to haggle it out because the decision was made at a different table, where the negotiations over Medicaid reforms were taking place. And the advocates were not invited to pull up a chair.

“When it came time to actually move on rule-making process, the rug was pulled from under those advocates who had believed that, in fact, we could have addressed the issue though rule making,” Collins said. Senate Bill 2840, which Gov. Pat Quinn signed into law, sets the requirement that 10 percent of the direct care be provided by a registered nurse. Under the new law, 25 percent of direct care must be provided by licensed nurse.

David Vinkler, associate state director for AARP Illinois, said that those involved in hashing out the nursing care requirements had decided to hold off and revisit the issue after the state budget was finished. But he said he and others were surprised when they found the Medicaid reform legislation contained a provision for staffing levels. "Then we found in the Medicaid bill a piece of language that decided this on its own,” he said. “In our mind, [it] really kind of violated the spirit of the negotiations that we had.”

He added, “We know there were no [nursing home] resident advocates in that decisions making process.”

Sen. Heather Steans, who sponsored both the nursing home reform legislation and SB2840, said that it is unlikely that JCAR would have approved the 20 percent requirement. Still, she said that advocates should not have been left out of the talks that produced the final product. “I think they should have been included.” s

Vinkler said that while the 10 percent staffing level is disappointing, it is the future that lies beyond it that troubles him most. After 2014, nursing homes will be reimbursed under a new system called RUGs, which takes into account the complexity of care needed by residents. Care for patients with greater needs would bring in more money in reimbursements. The new system was part of Medicaid reforms. Steans said the new system would “incentivize” nursing homes to care for more traditional elderly patients, instead of receiving the same funding to take on younger patients who might need less daily care. “Giving the same amount of money, regardless to the level of need of the patient. ... it’s just not sensible.”

However, after the new system goes into effect, staffing levels would also be tied to the level of care patients need, leaving no strict minimums across the board. Vinkler said this could result in a situation that is confusing for patients and their families. “Staffing is one of the biggest indicator of quality of care,” he said. “As a consumer, are you going to be able to figure out: ‘What [care] should I be getting?’ If you are not getting the minimum, how would you know?”

Kirk Riva — vice president of public policy for Life Services Network, which represents non-profit nursing homes throughout the state — said nobody knows exactly what staffing requirements will look like under the new system, but his organization supports the changes to reimbursement. “Clearly, there are homes in the state that are not staffed at the levels they should be,” he said “Certainly, you’ve got to have some standards. There’s no questions about it.” But he said there is still time to work out the details. “I think it’s safe to say there’s going to still be a lot of negotiations going on.”

Pat Comstock — executive director of the Health Care Council of Illinois, which represents for-profit nursing homes — said that staffing levels will be determined by the needs of residents, which is all a part of the new system that focuses on individual care. “Over the next 18 months, we will be working with the Department of Healthcare and Family Services on structuring the new [reimbursement] program, and as that process goes forward, a part of that process will be determining the care needs of the resident, and the staffing needs will follow.”

Vinkler said he doubts the state’s ability to keep track of requirements that are not uniform across every facility."We have serious questions about whether the Department of Public Health will be able to do that," he said. “Especially in Illinois, where we have had a history of really poor care, you have to have a minimum.”

Comstock said there is no reason for concern because the new system will still set staffing requirements that would be tailored to each resident’s needs. “I don’t understand their worry because the RUGs program will make it pretty clear, based upon the condition of the resident, what kind of staffing requirements they need.” She noted that 22 other states have a RUGs program, and while there are small differences between them, they are all based on nationally recognized standards. “One of the reasons why there was a push to go to RUGs was so that Illinois became a part of what the other states are doing and part of a national standard.”

 But Vinkler said he thinks legislators and Quinn’s administration traded off on the staffing levels to get for-profit nursing homes to agree to the new reimbursement plan. “That was the give to get the nursing homes to switch to that payment method.”

Steans said it was all part of trying to negotiate changes that are sweeping and generally positive for health care in the state. “Two big things that had to happen are reforming the way that nursing homes and hospitals get reimbursed. Those are things that had to happen to enable other changes to occur,” she said. She said it would have been difficult to get the nursing homes to agree a new reimbursement system without the give and take of negotiations over the Medicaid legislation. “The nursing homes are a powerful lobbying group.”

Comstock said her organization was asked to present ideas to lawmakers as part of negotiations over Medicaid reform because it represents nursing homes that care for the “vast majority” of Medicaid patients. She said that lawmakers working on the legislation heard comments from hundreds of groups. “So anybody that wanted to voice their opinion about what should be done certainly had the opportunity to do so on many levels.”

Steans said, “Big picture, what happens to nursing homes is still a huge step forward.”

Comstock agreed that the changes in the bill could potentially be positive. But she said the most important factor in whether the transition to RUGs is successful would be funding levels. “It depends on whether the state is prepared to fund the care requirements that are established under RUGs.” Illinois currently has some of the lowest Medicaid reimbursement rates in the nations. "We’re providing the same care that folks do in other states for far less money," Comstock said.

Collins said she worries that the changes ahead will not solve the racial inequity of care that affects many people she represents. “I worry about the problem that has not been resolved, which is the staffing disparity. ... The patients at majority-white homes often had care from RNs, while those in black-only homes got care from [licensed practical nurses],” she said. “My intention is to revisit the issue because the problem I’m facing in my district has not been resolved.”

Steans said that once the new system is in place, nursing homes should be required to publish and post their staffing requirements so patients know if they are receiving the required care. She said she is going to try to find a way to work out such a provision in the rule-making process concerning the Medicaid changes. If not, she said she might try to push a bill with such transparency measures. “Those staff requirements should get published, and they should be posted, and they should be put online.”

Transparency aside, Vinkler said that the staffing requirements, which could be confusing and difficult to enforce, are not in the best interests of nursing home residents. “It’s very telling when a policy comes out that is the product of solely the industry and policy makers, as opposed to consumers of that service. It is probably not the best policy for consumers.”