Nursing Facilities

Background

Nursing facilities provide long-term services and supports (LTSS) to many vulnerable older adults and people with disabilities. Skilled-nursing facilities also provide short-term rehabilitation and postacute care to people following in-patient hospitalizations. When residents remain for more than a short transitional period, nursing facilities should be small home-like settings with an emphasis on resident-centered care and staff empowerment (see Chapter 7, Health: Special Needs and Services—End-of-Life Care; see Chapter 7, Public Health—Care Coverage: Medicaid.).

Medicaid:

Culture—frail, vulnerable adults fare better when they feel a personal connection with their care provider. It is vital that the philosophy of practice and the day-to-day milieu of nursing facilities reflect this reality. Nursing facilities should focus on practices that promote relationship building between provider and recipient and discard practices that inhibit such relationships.

The Nursing Home Reform Act—Congress responded to widespread concern about poor nursing facilities by passing the Nursing Home Reform Act, part of the Omnibus Budget Reconciliation Act of 1987. The Reform Act establishes state requirements for certifying nursing facilities that participate in the Medicare and Medicaid programs. It also sets quality standards for nursing facilities nationwide, establishes resident rights, and defines the state survey and certification process that enforces the standards.

The Reform Act includes significant provisions regarding the rights of nursing facility residents and the rights and responsibilities of ombudsmen. Its Residents’ Bill of Rights includes the right to self-determination, personal and privacy rights, transfer and discharge rights, protections against personal funds and Medicaid discrimination, and the right to be free of physical and chemical restraints. But as nursing facilities have reduced the use of physical restraints, evidence has come to light that some have inappropriately substituted antipsychotic medications to restrain people. Although antipsychotic drugs are indicated by the Food and Drug Administration to treat schizophrenia and other psychotic disorders, studies by Centers for Medicare & Medicaid Services (CMS) and independent researchers report that off-label use of these drugs is high among nursing facility residents with dementia. In many cases, these medications are used despite a specific warning on the label against administering these drugs to older adults for dementia-related conditions.

The law also establishes a resident’s right to unrestricted access to visitors who are family members, and the right of access to other visitors, subject only to reasonable restrictions by the facility. The law also requires each nursing facility to “care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident.”

Under the Reform Act, states must enforce a number of provisions concerning the rights and responsibilities of nursing facility ombudsmen. Ombudsman programs and councils advocate for residents of nursing facilities and board and care homes.

The law also mandates comprehensive assessments of potential residents, and bars nursing facilities from inappropriately admitting and keeping people with mental disabilities unless the facilities can provide or arrange for appropriate care.

The Reform Act’s quality standards and protections do not apply to private-pay residents in nursing facility beds not certified for Medicare and Medicaid reimbursement. In addition, because some facilities certify only a limited number of beds for Medicaid, private-pay residents who exhaust their savings and become eligible for Medicaid could be discharged if no certified bed is available. In the same way, the lack of certified beds makes it more difficult for Medicaid-eligible people to be admitted to nursing facilities.

Quality indicators—in 2002 the Department of Health and Human Services announced the Nursing Home Quality Initiative, which emphasizes consumer information and the use of consultants to help nursing facilities improve care. A centerpiece of the program is the Nursing Home Compare website. It gives consumers new information about the quality of care in individual nursing facilities. To that end, it reports measures of key quality factors, such as pain management, preventable bedsores, and use of restraints. The ratings are risk-adjusted, so facilities that take care of sicker residents do not receive unfairly low scores, and the ratings can be compared across all types of nursing facilities. The website also features an overall five-star rating system based on health inspections, staffing, and quality measures.

Nursing facility inspections—state governments oversee the licensing of nursing facilities. States have contracts with CMS to monitor nursing facilities that want to provide care to Medicare and Medicaid beneficiaries. Each state with a contract must conduct onsite inspections, called surveys, which determine whether nursing facilities meet the minimum Medicare and Medicaid quality and performance standards. Surveys may occur anytime from 9 to 15 months after the previous survey, with the statewide average time between inspections being no greater than 12 months. If a nursing facility is performing poorly, state inspectors may go in more frequently.

Investigation of residents’ deaths—there is no national policy requiring investigation of the deaths of nursing facility residents to determine whether abuse or neglect played a role. Arkansas, however, has a unique law that requires coroner investigations of all deaths in nursing facilities. Coroners who find reasonable cause to suspect that the death is due to neglect or other maltreatment report their findings to the state survey agency and the state Medicaid Fraud Control Unit. Referrals may also go to a local city or county prosecutor. The state survey agency treats the coroner referrals as complaints and investigates them accordingly.

Swing beds—hospital “swing beds” that can be converted temporarily from acute care to chronic care use can improve access to services among people living in rural areas where there are severe shortages of nursing facility beds. Swing beds are most appropriate for delivering short-term skilled care. People who need skilled nursing or rehabilitative services at a level between hospital and nursing facility care can receive it in “subacute” or “transitional” care facilities. These facilities may be freestanding or part of a hospital or nursing facility.

Staffing levels—the Nursing Home Reform Act requires that nursing facilities provide, at a minimum, eight hours of registered nurse (RN) coverage and 24 hours of licensed practical nurse (LPN) coverage per day. In addition the law requires nursing facilities to provide the scope of care and services (including sufficient qualified staff) that will ensure that each resident can attain or maintain his or her “highest practicable physical, mental, and psychosocial well-being.”

Research shows that RN staff hours, in particular, are correlated with better quality outcomes, including reduced incidence of pressure sores, lower use of physical restraints, and fewer hospital admissions. While LPN and certified nursing assistant (CNA) staffing is essential, it is not a substitute for RN staffing.

Staff training—the Nursing Home Reform Act also requires that nurse aides who work in nursing facilities complete a 75-hour CNA training course and pass a competency test within four months of beginning work with residents.

Many states require more than 75 hours of training, believing that the federal standard is inadequate to protect the welfare of residents and the safety of workers. As of 2014, 19 states required only the federal minimum of 75 hours of training, 14 states required between 76 and 100 hours, and 14 states and the District of Columbia required more than 100 hours. The highest requirement was 180 hours.

In 2001 CMS issued administrative guidance to states, eliminating CNA training requirements and criminal background checks for workers hired only to transport residents (e.g., to drive a van or push a wheelchair). Two years later CMS issued new regulations that gave states the option of exempting from the training requirements staff hired to feed and hydrate residents who were unable to eat or drink without assistance. Such staff would only have to receive a minimum of eight hours of training. Effective September 2007 CMS began permitting the use of paid feeding assistants in skilled-nursing facilities. Feeding assistants are required to complete a state-approved training program and must be properly supervised. Skilled-nursing facilities can use paid feeding assistants if allowed under state law. Proposals at the federal level, and in many states, would exempt workers designated to perform various other single tasks for residents (sometimes referred to as single-task workers) from CNA training requirements.

Nursing facility transparency and improvement—as part of the Affordable Care Act (ACA), Congress established new provisions to help provide consumers with more complete information about nursing facilities. Publicly available data will include nursing facility ownership and staffing information based on payroll data instead of data self-reported by facilities. Consumers will have access to their complaints, inspection reports, and other information. The law also modifies civil money penalties for nursing facilities. It allows penalties to be collected and held in an escrow account, improves notice in the case of facility closure, and improves staff training, among other provisions.

Disclosure of aggregate information regarding nursing facilities’ ownership and management—in 2010 the Government Accountability Office (GAO) found that 1,876 nursing facilities were acquired by private investment firms from 1998 through 2008. Ten firms accounted for 89 percent of nursing facility acquisitions during this period. According to GAO, the CMS system for tracking information about nursing facility ownership was confusing. For this reason and others, Congress included enhanced reporting requirements for nursing facilities in the ACA.

The ACA requires a nursing facility to disclose extensive information regarding the people and entities that own, control, or manage the facility. The disclosure must address corporate structures by including organizational information on the legal relationships between the entities and people who own or manage the facilities.

Nursing Facilities: Policy

Service quality

In this policy: FederalState

Nursing facilities should focus on practices that promote relationship building between the care provider and the care recipient, and should discard practices that inhibit such relationships.

Quality measures are not a substitute for strong enforcement. Thus the federal government should enact and maintain strong federal nursing facility quality standards. AARP opposes efforts to deregulate the nursing facility industry or change the survey system in ways that could hamper a state’s ability to enforce standards and impose sanctions against poor-quality providers.

To ensure quality and protect residents’ rights in nursing facilities, federal and state governments should provide effective oversight of nursing facilities and create strong sanctions for violations of health and safety standards and residents’ rights.

Nursing Home Reform Act

In this policy: FederalState

Federal and state governments should monitor and enforce regulations as mandated by the quality reform provisions of the Nursing Home Reform Act and other laws and regulations affecting nursing facilities.

Federal and state governments should provide necessary funding to carry out the provisions of the act, including giving residents the right to immediate and unrestricted access to family members and others with whom they have established relationships (subject to reasonable and nondiscriminatory restrictions that the facility may adopt for residents’ health and safety and the facility’s security).

In order to prevent harm to residents, the act’s requirement that facilities ensure each resident attains or maintains his or her “highest practicable physical, mental and psychosocial well-being” should be vigorously enforced.

Protection of residents’ rights

In this policy: FederalState

Facilities should be required to post a residents’ bill of rights in prominent places that are accessible to residents and families.

States should require that facilities give the bill of rights to prospective residents, their families, and/or their representatives, and provide a translation to non-English-speaking people.

States should require facilities to:

  • provide access to a separate visiting room for people who live in semiprivate rooms;
  • have features that protect residents’ personal belongings from theft and are responsive to residents’ preferences;
  • provide residents or their representatives with a monthly itemized statement of charges; and
  • refrain from transferring residents to facilities that are far from family or friends unless it is a resident’s wish or the facility clearly documents that such a transfer is unavoidable.

Facilities that are reducing beds, merging, or closing—or that have filed for bankruptcy, or have other financial difficulties—should be closely monitored to protect residents’ rights and quality of care.

Nursing facility inspections

In this policy: FederalState

AARP opposes proposals to lengthen the period between nursing facility inspections.

Inspections should not be scheduled in advance.

States should require surveyors to interview residents in private when inspecting facilities and to conduct private interviews with family members and independent family councils requesting an interview.

Discriminatory admission practices

In this policy: FederalState

Federal and state governments should ban discrimination in admission practices based on source of payment, ability to pay, or socioeconomic status. Governments should strictly enforce these laws and monitor facilities to ensure compliance.

Medicare-Medicaid certification

In this policy: State

States should require that all beds in a nursing facility be Medicaid- and Medicare-certified as a condition for the facility’s participation in the Medicaid program.

Nursing facility deaths

In this policy: FederalState

Federal and state regulations should require the reporting by coroners and the investigation of nursing facility residents’ deaths that are suspected to have been caused by abuse, neglect, or other maltreatment.

When an investigation uncovers prior abuse, neglect, or other noncompliance associated with the resident’s death, the nursing facility should be penalized.

Swing beds

In this policy: FederalState

Federal and state governments should enforce quality standards similar to those for freestanding nursing facilities in order to protect against improper use of hospital swing beds.

Standards for subacute care

In this policy: FederalState

Federal and state governments should define uniform service and quality standards for subacute-care providers.

Staffing requirements

In this policy: FederalState

The goal of minimal staffing requirements should be to increase staffing thresholds to at least the levels determined necessary to ensure adequate care.

As a minimum step, federal and state governments should establish specific minimum staffing levels that are not lower than the minimum thresholds identified by Centers for Medicare & Medicaid Services (CMS):

  • 2.8 hours for nurse aides per resident per day;
  • 1.3 hours for registered nurses (RNs) and licensed practical nurses, combined, per resident per day; and
  • .75 hours for RNs per resident per day.

Federal and state governments should enact regulations that go beyond the Nursing Home Reform Act’s standard of eight hours of RN time per nursing facility per day, recognizing that increased RN staffing hours correlate with better quality outcomes.

Nursing facilities should be required to have at least one RN or APRN (e.g., gerontological nurse- practitioner) with clinical responsibilities on duty 24 hours a day, seven days a week.

States should require that facilities exceed the absolute minimum number of staff, as determined by CMS, to ensure that each resident can attain or maintain his or her “highest practicable physical, mental, and psychosocial well-being,” as required by the act.

States should create incentives that encourage providers to hire as many permanent workers as possible. Extensive use of temporary workers is a disincentive to staff recruitment and retention. It can lead to poor-quality care because such workers are unfamiliar with residents’ needs and may be inexperienced, and because the high cost of training new staff may divert funds from providing care.

Waivers for staffing requirements

In this policy: FederalState

Waivers should be granted only for professional staff and only if efforts to recruit such staff at adequate pay levels have failed.

However, even under a waiver, the quality of care and safety of residents must be ensured 24 hours a day, seven days a week, by providing sufficient professional staff to meet these goals.

Ombudsmen should be notified when waivers are requested or granted.

Staff training

In this policy: FederalState

All unlicensed individuals responsible for resident care, including single-task workers, should be required to complete certified nursing assistant (CNA) training, pass a CNA competency test, undergo a period of probationary supervision, and fulfill annual continuing education requirements.

The required minimum CNA training should be increased to at least 100 hours, and staffs should be required to complete competency-based training before providing care.

Training in communication, problem solving, cultural sensitivity, and recognition and reporting of abuse and neglect should be added to CNA curriculum requirements.

Federal and state governments should require that nursing facility staff be trained and demonstrate needed skills before implementing new technology or equipment for residents.

States should establish continuing education requirements for registered nurses, licensed practical nurses, and nurse aides; require employer-provided paid leave for this purpose; and encourage employers to pay tuition and fees for continuing education.

States should ensure that social workers and other mental health professionals who work in nursing facilities or under contract to nursing facilities have training in the special needs of older people and people with all types of physical and mental disabilities (see also this chapter’s section Creating an Adequate Well-Trained Long-Term Services and Supports Workforce; Chapter 7, Health care, Workforce, Education, and Training section-- Training).

Research on staffing requirements

In this policy: FederalState

Additional research that will advance the understanding of the relationship between staffing levels and quality of care should be encouraged.

CMS should complete, in a timely manner, research to determine the staffing levels needed to ensure adequate care and to develop methods of adjusting staffing levels based on case mix and residents’ needs.

Private right of action

In this policy: FederalState

Medicare and Medicaid beneficiaries should be provided with a private right of action to sue nursing facilities for violating federal laws and regulations or to sue the government for failing to enforce federal laws and regulations pertaining to care and services.

Federal and state law should require providers to reimburse the legal costs of beneficiaries or their representatives if the court finds in the beneficiaries’ favor.

Paperwork

In this policy: FederalState

Federal and state regulators should look for additional ways to reduce paperwork in nursing facilities without adversely affecting resident care or interfering with federal quality initiatives.

Consumers should have input regarding changes made to paperwork requirements.

End-of-life decisions

In this policy: State

States should require facilities to establish ethics committees to help staff, residents, and families deal with end-of-life treatment decisions, such as refusal of nutrition and hydration and do-not-resuscitate orders.

End-of-life care

In this policy: FederalState

Federal and state policymakers should support improved access to palliative care services regardless of setting (e.g. hospital, nursing home, or residence). Palliative care should be available in the care setting that the person prefers.

Use of physical or chemical restraints

In this policy: State

States should enforce standards to eliminate the unnecessary use of physical and chemical restraints. Antipsychotic medications should not be administered for the purpose of sedating residents.

States should ensure that physicians, nursing facility staff, and families are educated about the negative effects of restraints and alternatives to their use, and medical professionals should be held accountable for inappropriate prescribing.

Providers should not use restraints, except in an emergency and under a physician’s order; the physician’s order should not last more than 12 hours. “Emergency” should be defined as an unanticipated and rarely occurring situation that poses an immediate and serious danger to the resident or other individuals in the facility.

States should require that when restraints are applied, residents are checked on a schedule at least as strict as that required by CMS under the Nursing Home Reform Act.

Disclosure of ownership

In this policy: FederalState

Federal and state governments should work closely with consumer groups to develop and implement a standardized format in which nursing facilities will disclose the names of all parties with ownership control or lease, financial, or operational interest in the facility; this data should be submitted to federal and state governments, the state long-term care ombudsman, and the public. Federal and state governments should notify the public of the availability of this information and make this information readily accessible to the public.

Nursing facilities should be required to notify prospective and current residents, their families, and resident councils of the availability of ownership information and provide them with this information upon request.