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Four Ways to Reform the Nursing Home Industry

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A slow-burning crisis that put millions of our most vulnerable and precious citizens in harm’s way became all the more urgent last year. For us at Jehl Law Group, 65 years of collective experience defending the safety and dignity of some of the most vulnerable members of our society opened our imagination to how much better the nursing home industry could be, with the right changes.

The COVID-19 pandemic, plus a new federal administration in Washington that promised things will be different, afford the opportunity to realize substantial reforms to improve the lives and experiences of our elders in care. Here are a few.

  1. Make Nursing Homes Safe and Supportive Places to Work

The nursing home and long-term care sector is one of the most hazardous in the United States in terms of work-related illnesses and injuries. Data from 2020 suggested the industry ranked just behind fishing-related workers in numbers of job-related deaths. In exchange for such pressures, workers earn non-competitive wages, with about a quarter of nursing assistants receiving just $12.24 an hour for their work in 2019. Their experiences fall directly on the fault lines of social inequality, with women making up as much as 90% of nursing assistants and racial minorities nearly 40%.

Both at the federal and state levels, a start would be to implement an all-encompassing review of salaries, benefits and practices, raising standards to dignified levels. Most nursing home employees should have a minimum set of benefits, including access to sick leave and health insurance coverage. They should be afforded reasonable autonomy to make decisions on the job, and have managers who are supportive and responsive to their concerns. This includes sufficient personal protective equipment, and enough staff to cover for co-workers who are sick, preventing burnout.

  1. Protect Workers – and Residents – with Safe Staffing Ratios

Long before there was such a thing as COVID-19, headlines in major newspapers were billing American nursing homes as chronically-understaffed “ghost towns.”

The Nursing Home Reform Act of 1987 says a registered nurse must be present for eight consecutive hours, seven days a week, and licensed nurses 24 hours a day. Otherwise, it only requires “sufficient” staffing levels to care for patients. In practice, Tennessee’s regulations have only minimal variance with the federal laws. Both provide an unacceptable deal of discretion for individual facilities in staffing levels.

One study from Health Services Insights recommended at least 30% of total nursing care hours should be provided by licensed nurses, with RNs on call 24 hours a day rather than eight. Staffing must also be matched to the complexity of care required in facilities, aside from only accounting for the number of residents.

  1. Overhaul Infection Control Protocols

The U.S. Government Accountability Office (GAO) reported last May that more than 80% of nursing homes studied over a four-year period between 2013 and 2017 had received at least one citation for failing to maintain appropriate infection control standards. 48% of those homes were cited in multiple, consecutive years, often for the same infraction.

Requiring facilities to employ a dedicated infection preventionist (IP) is a step in the right direction, but day-to-day processes must involve everyone working there. The most effective strategies combine robust recordkeeping, participation in infection control training by all staff, and regular meetings to discuss strategy and improvements.

  1. Stronger Monitoring and More Empowered Watch Dogs

Everyone concerned with elder wellbeing should rally around more robust regulations. Industry reform needs to focus more closely on facilities that fail in safeguarding residents, rather than loosening standards, bending to requests to expand liability protections, and ignoring the relationship between ownership or management of facilities and outcomes.

While lobbyists claim that making it easier to sue nursing homes an unfair weight on operations, and that aspects like ownership make little difference in care outcomes, existing evidence points in the opposite direction. Statistics compiled by the Kaiser Family Foundation earlier this year note that profit-making nursing homes sustained higher rates of COVID-19 cases and deaths than not-for-profit ones. Another study found that when profit-making firms become involved in managing facilities, rates of death, improper use of medication and wasteful spending on things unrelated to patient care all increase.

While sweeping judgments won’t save lives, tougher monitoring of weak players and bad actors will go a long way to improve safety.

Meaningful change in the industry is a marathon, not a sprint, requiring continued, careful effort and advocacy. Until then, when you suspect nursing home abuse and neglect, the experienced legal professionals at Jehl Law Group are here and ready to help.