CENTER FOR MEDICARE ADVOCACY INC ONTARIO HEALTH COALITION

CENTER FOR MEDICARE ADVOCACY, INC. ONTARIO HEALTH COALITION March 31, 2009 _______ www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc.

OVERVIEW OF PRESENTATION § Nursing home industry in USA § Public oversight of nursing home industry • Nursing Home Reform Law (federal law, 1987) § Nurse staffing § Tension between market-based and regulatory approaches to assuring high quality of care and high quality of life for residents • • Advocates for residents want regulation Nursing home industry wants market-based approaches www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 2

NURSING HOME INDUSTRY IN USA § Historically, old age homes, county poor houses § Industry expanded with introduction of federal funding (Medicare for old and disabled people, Medicaid for poor people) in 1960 s www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 3

NURSING HOME INDUSTRY IN USA § Change over time, increasing for-profit ownership § Now, two-thirds of facilities are for-profit; one-quarter are not-for-profit; rest are government-owned § More than half of facilities nationwide are owned by chains, often, multi-state chains www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 4

NURSING HOME INDUSTRY IN USA § Most nursing homes are free-standing, not part of hospitals (hospital-based) • Charlene Harrington, et al, Nursing Facilities, Staffing, Residents and Facility Deficiencies, 2001 through 2007 (Sep. 2008), http: //www. nccnhr. org/uploads/File/Harrington _01 -07_OSCAR_complete_2008. pdf www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 5

NURSING HOME INDUSTRY IN USA § Recent trend: creation of multiple corporations for a single facility, separating management, property, etc. • Joseph E. Casson, et al, “Protecting Nursing Home Companies: Limiting Liability Through Corporate Restructuring, ” Journal of Health Law, Vol. 36 (Fall 2003), http: //www. proskauer. com/news_publications/publishe d_articles/content/2003_12_02/_res/id=sa_File/Journal %20 Casson%203. pdf www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 6

NURSING HOME INDUSTRY IN USA § Recent trend: take-over of chains by private equity firms, e. g. , • Beverly Enterprises – Fillmore Capital Partners • HCR Manor Care – The Carlyle Group • Tandem Health Care – JER Partners and Formation Capital www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 7

PRIVATE EQUITY FIRMS § Quality of care declines following take-over • Charles Duhigg, “At Many Homes, More Profit and Less Nursing, ” The New York Times (Sep. 23, 2007), http: //www. nytimes. com/2007/09/23/business/2 3 nursing. html? _r=1&scp=19&sq=Charles%20 Duhigg&st=cse. www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 8

PRIVATE EQUITY FIRMS § Manor Care CEO was to get $118 -186 million when the private equity firm bought his company • The Center for Medicare Advocacy calculated how many RNs and aides could be hired with the money • • $118 M: 5346 CNAs (19 per Manor Care facility) $186 M: 8427 CNAs (30. 3 per Manor Care facility) $118 M: 2198 RNs (7. 9 per Manor Care facility) $186 M: 3464 RNS (12. 5 per Manor Care facility) • Center for Medicare Advocacy, “SNF CEO’s Windfall Could Have Provided More Staff and Services” (July 2007), http: //www. medicareadvocacy. org/Commentary_SNFCEOs. Win dfall. htm www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 9

2001 -PRESENT § Nursing home industry losing ground to home health and home and communitybased alternatives, including assisted living § Industry has attempted to shift to higherpaying Medicare beneficiaries www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 10

PUBLIC OVERSIGHT § State oversight of all facilities under state licensing law § State oversight was historically ineffective www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 11

PUBLIC OVERSIGHT § Federal oversight depends on nursing facilities’ (generally) voluntary participation in federal payment programs (Medicare, Medicaid), resulting in certification • 99. 9% facilities participate in one or both programs: 3. 2% Medicare only, 2. 2% Medicaid only, 94. 5% both (Harrington, Table 6, page 17) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 12

REAGAN ADMINISTRATION § Considered elimination of “residents’ rights” as facility condition of participation in Medicare/Medicaid (never officially proposed; leaked draft) § Proposed regulations for surveys, 47 Federal Register 23, 403 (May 27, 1982) • • • Less-than-annual surveys Self-surveys Deemed status for nursing facilities accredited by the Joint Commission on the Accreditation of Hospitals (now called Joint Commission) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 13

CONGRESSIONAL RESPONSE § Two legislative moratoria preventing deregulation § Agreement with Health Care Financing Administration (HCFA) (as second moratorium was about to expire) to fund study by Institute of Medicine (Io. M) (part of National Academy of Sciences) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 14

INSTITUTE OF MEDICINE (1986) § Report recommended changes to entire federal oversight system for nursing homes • Requirements of Participation for facilities • Survey process • Enforcement system www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 15

INSTITUTE OF MEDICINE § Nurse staffing • • Recognized nurse staffing as a major factor determining quality of care and quality of life But did not recommend specific staffing ratios because of “the complexities of case mix” Called for standardized resident assessment data and empirical studies to determine appropriate staffing levels Urged facilities to “place their highest priority on the recruitment, retention, and support of adequate numbers of professional nurses” with training in gerontology and geriatrics www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 16

INSTITUTE OF MEDICINE § Io. M staff challenged staff of National Citizens’ Coalition for Nursing Home Reform (NCCNHR) to work for enactment of the recommendations as federal law § NCCNHR formed Campaign for Quality Care (CQC) (members were health care professionals, advocates, nursing home industry) to identify Io. M recommendations that should become law www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 17

CAMPAIGN FOR QUALITY CARE § CQC met frequently for a year to discuss Io. M recommendations § Most work was done on Requirements (based on good provider practices, good state practices) § Survey was non-controversial § Enforcement had least agreement § Honorary Chair: Actor Kirk Douglas www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 18

NURSING HOME REFORM LAW (1987) § Based on Io. M recommendations and CQC § Defined Secretary’s responsibility broadly: to assure adequate federal standards, and enforcement of those standards, related to health, safety, welfare, and rights of residents § Addressed Requirements for facilities, survey, and enforcement www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 19

NURSING HOME REFORM LAW § Big changes in Requirements for facilities, e. g. , • • • Nurse aides must be trained and competent before providing care (half the states did not require any training in 1987) Recognition of residents’ quality of life Facilities must provide care and services so that each resident attains and maintains his or her highest practicable level of physical, mental, and psycho-social well-being • Not a minimum standard of care www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 20

NURSING HOME REFORM LAW § Biggest missing piece: nurse staffing standard • Reform Law says (regardless of facility size or acuity of residents) • an RN on the day shift • licensed nurses around the clock • “sufficient staff” to meet residents’ needs 42 U. S. C. §§ 1395 i-3(b)(4)(C)(i), 1396 r(b)(4)(C)(i), Medicare and Medicaid, respectively www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 21

NURSING HOME REFORM LAW § Survey requirements • Multi-disciplinary teams • Surveyors are trained and tested • Unannounced surveys on 9 -15 month schedule (12 -month average) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 22

NURSING HOME REFORM LAW § Enforcement • Range of intermediate sanctions (e. g. , civil • money penalties, monitors, temporary management, etc. ) must be enacted, but their use in most situations is permissive, not mandatory Requirement to impose more significant remedies for uncorrected or repeated deficiencies www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 23

NURSING HOME REFORM LAW § Requirements for facilities became effective October 1990 § Federal enforcement regulations, due 1988, were not issued until 1994 § Implementation of Law has been prolonged, delayed, and, with respect to enforcement, ineffective (too tolerant of poor care) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 24

JULY 1998 § President Clinton’s Nursing Home Initiative (24 points) § HCFA released report to Congress on accreditation, regulatory incentives, and nonregulatory quality initiatives § Senator Grassley (Senate Special Committee on Aging) began series of hearings on nursing home issues (enforcement, bankruptcy, staffing, etc. ) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 25

CONGRESS, JULY 1998 DECEMBER 2000 § Senate Special Committee on Aging held multiple hearings • • • “Betrayal: The Quality of Care in California’s Nursing Homes” (July 27 -28, 1998), http: //aging. senate. gov/hearing_detail. cfm? id=276917& “Residents at Risk: Weaknesses Persist in Nursing Home Complaint Investigation and Enforcement” (March 22, 1999), http: //aging. senate. gov/hearing_detail. cfm? id=272290& “The Nursing Home Initiative: The Results at Year One” (June 30, 1999), http: //aging. senate. gov/hearing_detail. cfm? id=272299& “Forum: Consumers Assess the Nursing Home Initiative” (Sep. 23, 1999), http: //aging. senate. gov/hearing_detail. cfm? id=272304& “Forum: Nursing Home Residents Short-Changed by Staff Shortages” (Nov. 3, 1999), http: //aging. senate. gov/hearing_detail. cfm? id=272305& “HCFA Regional Offices: Inconsistent, Uneven, Unfair” (Nov. 4, 1999), http: //aging. senate. gov/hearing_detail. cfm? id=272306& “Nursing Home Residents: Short-Changed by Staff Shortages, Part II” (July 22, 2000), http: //aging. senate. gov/hearing_detail. cfm? id=272279& “Nursing Home Bankruptcies: What Caused Them? ” (Sep. 5, 2000), http: //aging. senate. gov/hearing_detail. cfm? id=272282& “The Nursing Home Initiative: A Two-Year Progress Report” (Sep. 28, 2000), http: //aging. senate. gov/hearing_detail. cfm? id=272287& www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 26

CONGRESS, 2001 -PRESENT § Considerably less Congressional involvement • Senate Finance Committee hearing: “Nursing Home Quality Revisited: The Good, the Bad, and the Ugly” (July 2003), http: //finance. senate. gov/sitepages/hearing 071703. htm § Hearings about private equity firms (Nov. 15, 2007) • “Trends in Ownership and Quality, ” House Ways and Means • Committee, http: //waysandmeans. house. gov/hearings. asp? formmode=detail&h earing=601 “Nursing Home Transparency and Improvement, ” Senate Special Committee on Aging, http: //aging. senate. gov/hearing_detail. cfm? id=300437& § But no legislation has been enacted as a result www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 27

NURSE STAFFING § Nursing Home Reform Law required study of nurse staffing § Requirement was forgotten and ignored for years § Finally, study done www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 28

NURSE STAFFING REPORT § Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes • • Phase I (Summer 2000) Phase II (Winter 2001) • Found 97% of facilities failed to meet 1 or more staffing requirements (1. 15 -1. 3 hours licensed staff; 2. 4 -2. 8 hours aide) to prevent avoidable harm to residents • Simulation found 91% lacked sufficient nursing staff to meet 5 key care processes required by Nursing Home Reform Law (dressing/grooming; exercise; feeding assistance; changing wet clothes and repositioning; toileting) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 29

STAFFING RECOMMENDATIONS OF EXPERTS § Direct care staffing standard: 4. 13 hours per resident day § Plus administrative nurse staffing § Plus mealtime staffing • Charlene Harrington, et al, “Experts Recommend Minimum Nurse Staffing Standards for Nursing Facilities in the United States, ” The Gerontologist, Vol. 40, No. 1, 5 -16 (2000). www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 30

NURSE STAFFING REPORT CLINTON ADMINISTRATION § Clinton (Sep. 16, 2000 Radio Address) called for • one billion dollar grant program to boost • • staffing levels, improve recruitment and retention, and train caregivers establishing minimum staffing requirements within 2 years using civil money penalties to improve staffing www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 31

NURSE STAFFING REPORT BUSH ADMINISTRATION § Bush Administration said evidence in Phase II report was insufficient to support change in law or regulation § Staffing initiatives • Feeding assistants (staff with 8 hours of training • to feed residents) Nursing facilities to post staffing information, by shift www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 32

INCREASED REIMBURSEMENT FOR STAFFING § Medicare and Medicaid reimbursement increased from $24. 8 billion in 1990 to $51. 0 billion in 1998 • Congress increased rates (by 16. 6%) for nurse staffing component of Medicare rate in 2000 (component includes social services, nontherapy ancillary services, as well as nurse staffing) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 33

BUT LITTLE CHANGE IN STAFFING LEVELS § 1991 -1998: staffing levels remained largely unchanged § 2000 rate increase did not increase staffing • Government Accountability Office (GAO), Skilled Nursing Facilities: Available Data Show Average Nursing Staff Time Changed Little after Medicare Payment Increase, GAO-03 -176 (Nov. 2002), http: //www. gao. gov/new. items/d 03176. pdf, found • Medicare rates were increased 4 -12% (on top of prior increases) • Staffing remained virtually stagnant (1. 9 minutes increase in nurse staffing, but less RN, more LPN and aide time) • Staffing increased (15 -27 minutes per resident) in 4 states that explicitly required staff increases • GAO concluded, “increasing the Medicare payment rate was not effective in raising nurse staffing” (page 4) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 34

ASSURING HIGH QUALITY § Approaches: • “Mandatory and external • “Voluntary and internal • “Strengthen the regulatory process • “Improve information systems for quality monitoring • “Strengthen the caregiving workforce • “Providing consumers with more information • “Strengthening consumer advocacy • “Increasing Medicare and Medicaid reimbursement • “Developing and implementing practice guidelines • “Changing the culture of nursing facilities” Joshua Weiner, “An Assessment of Strategies for Improving Quality of Care in Nursing Homes, ” The Gerontologist, Vol. 43, Special Issue II (2003) www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 35

MARKET VS. REGULATION § For this presentation, focus on market vs. regulation § An enduring controversy • Reagan Administration: deregulation (although • • Nursing Home Reform Law was enacted) Clinton Administration: regulation Bush Administration: market-based approaches www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 36

2001 -PRESENT § Nursing Home Initiative (Nov. 2001) • Public reporting of performance measures • Technical assistance to facilities through Quality Improvement Organizations § Revisions to State Operations Manual (surveyor guidance) § Quality-based purchasing demonstration www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 37

NURSING HOME INDUSTRY § For this presentation, industry = trade association leadership, not workers § Industry consistently promotes marketbased approach to regulation; quality improvement; technical assistance; outcome measures; customer satisfaction www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 38

NURSING HOME INDUSTRY § American Health Care Association (AHCA) (trade association of primarily for-profit facilities) • 2000 Issue Brief called for collaborative • system, spending civil fine money to improve care for residents, preventing the labeling of chains, etc. ) Similar position each year www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 39

NURSING HOME INDUSTRY § American Association of Homes and Services for the Aging (AAHSA) (trade association of not-for-profit facilities) • Broken and Beyond Repair: Recommendations to Reform the Survey and Certification System (June 2008), http: //aahsa. org • Calls for “a new oversight model” www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 40

NURSING HOME INDUSTRY § Voluntary initiatives • Quest for Quality (1982) • Quality First (announced July 2002), • http: //www. qualityfirstnursinghomes. com/ Advancing Excellence (Sep. 2006 -present), http: //nhqualitycampaign. org/ www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 41

QUALITY FIRST § Announced July 16, 2002 by 3 national nursing home trade associations (AAHSA; AHCA; Alliance for Quality Nursing Home Care [chain nursing homes] www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 42

QUALITY FIRST § Covenant to commit to 7 core principles • • Continuous quality assurance and quality improvement Public disclosure and accountability Patient/resident and family rights Workforce excellence Public input and community involvement Ethical practices Financial stewardship www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 43

QUALITY FIRST § Expected outcomes by 2006: • • • Continued improvement in compliance with federal regulations Demonstrable progress in promoting financial integrity Demonstrable progress in clinical outcomes Measurement improvements in CMS quality improvement measures High satisfaction on consumer satisfaction surveys Demonstrable improvement in employee retention and turnover rates www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 44

QUALITY FIRST § Established and paid for National Commission for Quality Long-Term Care, http: //www. qualitylongtermcarecommission. org/ • Co-chaired by former Republican Speaker of • the House of Representatives Newt Gingrich and former Nebraska Senator Bob Kerrey Hosted several meetings; issued several reports www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 45

ADVANCING EXCELLENCE IN AMERICA’S NURSING HOMES § Voluntary campaign § 8 “measurable goals” • • Reducing high risk pressure ulcers Reducing use of daily physical restraints Improving pain management for long-stay residents Improving pain management for short-stay residents Establishing individual facility targets for improvement Assessing resident and family satisfaction with quality of care Increasing staff retention Improving consistent assignment of nursing home staff www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 46

ADVANCING EXCELLENCE § Center for Medicare Advocacy, “The ‘New” Nursing Home Quality Campaign: déjà vu All Over Again” (Sep. 21, 2006), http: //medicareadvocacy. org/SNF_Quality. C ampaign. htm www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 47

NURSING HOME INDUSTRY § Claims to represent residents, equating dollars spent on care with care of residents • AHCA, “American Health Care Association Kicks Off Quality-Focused Ad Campaign; Inside-the-Beltway Ads Highlight Improved Quality of Care for America’s Seniors and Disabled” (Sep. 12, 2008), http: //www. ahcancal. org/News/news_releases/Pages/12 Sep 2008. aspx § Same initiatives, repackaged • Now industry claims that helping the industry helps the economy, financial stimulus www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 48

AN ENDURING ISSUE § § Reagan Administration: de-regulation Clinton Administration: regulation Bush Administration: market Obama Administration: www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 49

NOW § Nursing home industry proposing to Capitol Hill staff • Less than annual surveys for “top tier” (which it • does not define) Back to 1982 www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 50

NOW § The financial collapse was caused, in part, by the absence of regulatory oversight of financial institutions. I hope the United States does not make the same mistake by continuing the de-regulation of the nursing home industry. It’s time for re-regulation. www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc. 51

CENTER FOR MEDICARE ADVOCACY, INC. Toby S. Edelman Center for Medicare Advocacy 1025 Connecticut Avenue, N. W. Suite 709 Washington, DC 20036 (202) 293 -5760, extension 104 (202) 293 -5764 (fax) tedelman@medicareadvocacy. org _________ www. medicareadvocacy. org Copyright © Center for Medicare Advocacy, Inc.