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State panel OKs bill to overhaul nursing homes’ staffing rules

Critics fear dilution of care by Eric Besson | April 8, 2021 at 6:57 a.m.
Sen. David Wallace, R-Leachville, presents SB530 that would amend certain provisions of the workers comp law Monday March 29, 2021 at the state Capitol in Little Rock. The bill failed to get the needed votes to pass. More photos at arkansasonline.com/330leg/. (Arkansas Democrat-Gazette/Staton Breidenthal)

A state Senate committee on Wednesday backed legislation that would rewrite Arkansas' nursing home staffing laws, sending it to the full Senate for final legislative consideration as advocates for nursing home residents -- some caught by surprise -- began expressing opposition.

The Senate Public Health, Welfare and Labor Committee advanced House Bill 1776 on a voice vote -- after a brief presentation by state Sen. David Wallace, R-Leachville -- with no audible dissent, no questions asked and no public opposition raised.

Wallace said the bill would eliminate state laws that duplicate federal regulations and that the legislation would take Arkansas "out of the 1950s [and] into the 21st century."

But an array of advocates -- including one who was out of town and unable to testify and another who just learned of the bill Wednesday -- sharply criticized HB1776 in telephone interviews.

HB1776 would repeal the state law mandating specific nurse-to-resident ratios on a per-shift basis, replacing it with a requirement that nursing homes average 3.36 "direct care hours per resident day" over a one-month period.

[RELATED: See complete Democrat-Gazette coverage of the Arkansas Legislature at arkansasonline.com/legislature]

The 16-page bill would expand the state's definition of "direct care staff" to include medication assistants and therapists, two categories that the current law explicitly excludes.

It also would strike a section setting financial penalties for nursing homes found to have a pattern of violating state staffing laws.

Supporters said the bill would modernize state laws, remove redundancies and acknowledge the role of "other health professionals" in nursing homes.

"There's nothing about this bill that waters down our staffing requirements as it relates to taking care of our residents," Wallace said.

In interviews, advocates for residents disagreed with the bill sponsors' characterization of federal staffing rules and said the legislation would "dilute" quality of care.

They also argued that the proposed method for reporting staffing levels would make it more difficult to know how many nurses and other staff members were on duty on any particular day or week, harming day-to-day accountability.

"Federal regulations are not substantial enough to protect residents," said Martha Deaver, president of Arkansas Advocates for Nursing Home Residents. "State staffing laws and accountability for daily staff is just imperative."

Deaver, who has been in Northwest Arkansas attending to a family matter, was unable to testify, she said.

Asked whether the Arkansas Department of Human Services and its Office of Long Term Care support HB1776, department spokeswoman Amy Webb said only that the agency does not believe it would cut staffing levels.

"Although HB1776 does significantly modify how staffing requirements are calculated and measured, we believe the revised methodology will result in overall staffing levels at least equivalent to what is enforced now," Webb said.

The Arkansas Health Care Association, which represents nursing homes, helped develop the bill, talking with state officials before the covid-19 pandemic, Executive Director Rachel Bunch said in response to emailed questions.

"The old staffing ratios/shifts are unique to Arkansas and were created over 20 years ago – before extensive federal staffing requirements and elaborate, transparent and audited federally mandated data reporting," Bunch said. "Flexibility with staffing in a changing workforce will ultimately benefit our residents."

The financial penalties for repeated staffing violations that are scratched under the bill "were outdated" and "were 'in addition to existing state fines and penalties,'" Bunch wrote. "There is much work to be done over the coming months to update the rules and details for the new process."

Herb Sanderson, director of AARP Arkansas, learned of HB1776 on Wednesday and found it to be "extremely concerning," he said.

Sanderson's reading of the bill, he said, indicates that nursing homes will be able to count what is now "administrative and managerial work" as direct resident care, which he said would "dilute" the care residents receive.

"I am shocked that the Arkansas Department of Human Services would not be opposing this bill," Sanderson said. "I think consumers should have a lot of concern about it because I think -- unlike the title of the bill and likely what people are being told -- it's going to lead to lower quality of care.

"I would just hope that before the bill gets a final vote that people slow down and take a closer look at it."

The House Public Health, Welfare and Labor Committee on April 1 recommended passage of HB1776 by a voice vote with no audible dissent and no testimony against the bill. The House passed the bill Monday in an 86-1 vote, with only Rep. Denise Garner, D-Fayetteville, voting against passage. Four lawmakers voted "present."

Rep. Brian Evans, R-Cabot, presented the bill in the House. Reached Wednesday for an interview about his legislation, Evans asked for emailed questions.

The expanded definition for "direct-care" staff to include medication assistants and therapists aligns with federal regulations, Evans said.

"Medication assistants and therapists are direct care professionals, and they provide direct care services," Evans wrote in the email. "Federal regulations ... explicitly recognize Medication assistants and therapists as direct care staff. The feds also explicitly include nurse practitioners, advance practice nurses, and physician assistants as direct care staff."

Evans did not specifically say how the legislation would count hours worked by a facility's director of nursing -- who handles administrative and managerial duties -- in comparison to how existing law counts those hours.

HB1776 next goes to the 35-member Senate, where it has 17 co-sponsors.

Family Council President Jerry Cox said the organization is "concerned" about HB1776, though he noted the organization has not "taken a strong public position on it."

"This is a bill that we have concerns about," Cox said. "We have not had time to devote all the energy to it that I wish we could have. This may be one that has to be addressed two years from now to correct some of the damage."

The executive director of a New York-based nonprofit focused on federal staffing regulations said the bill's stated purpose -- to align with existing federal rules the bill describes as "highly proscriptive" -- is flawed.

"I think the premise is incorrect, in terms of the [state] rules being outdated and the federal rules being so comprehensive," said Richard Mollot, who runs the nonprofit, called the Long Term Care Community Coalition.

Mollot said HB1776 is a "strange bill" that "doesn't seem to be very well thought through."

Federal regulations are generally a strong foundation, but they're hard to enforce independent of state laws and aren't standardized in a way that adequately covers nursing homes of varying sizes, Mollot said.

Federal rules require that staffing be "sufficient" to meet individual residents' needs. They also set a bare-minimum requirement for registered nurse hours, but that minimum is uniform and doesn't consider a facility's size.

Staffing ratios are left up to the states. About 40 states have specific nursing home staffing laws to complement the federal regulations, Mollot said.

Arkansas' staffing ratios have been in place for about two decades.

The laws specify how many direct-care staff members need to be on duty for every resident at varying times of the day. The overnight shift requires one direct-care staffer for every 14 residents, for example, while the day shift requires one direct-care staffer for every six residents.

Additionally, national studies have found that a minimum of 4.1 hours per resident per day is necessary to ensure quality care, said both Mollot and Deaver, the Arkansas advocate for nursing home residents.

In response to emailed questions, Evans and Bunch said the state's current staffing ratio laws equate to 2.8 hours per day per resident of direct care by registered nurses, licensed professional nurses and certified nursing assistants.

They both pointed out that the legislation sets out 3.36 "direct care hours per resident day," a 20% increase.

Both said Arkansas nursing homes averaged more than 4.1 hours of direct care per day per resident in the third quarter of 2020, according to the U.S. Centers for Medicare and Medicaid Services' guidelines.

Bob Edwards, a Little Rock attorney who represents nursing home residents or their families in lawsuits concerning staffing levels, said state data he obtained through an Arkansas Freedom of Information Act request shows that nursing homes are far more likely to be cited for violating state laws versus federal regulations.

The Arkansas Department of Human Services data, which he provided to the newspaper, shows that the state's nursing homes have been collectively cited 421 times since January 2017 for failing to meet the state's minimum required direct-care staffing ratios.

Surveyors flagged nursing homes for 65 violations of federal staffing regulations over that same span.

A March report from the U.S. Department of Health and Human Services' Office of the Inspector General said state survey agencies -- which are responsible for tracking compliance with state laws and federal rules -- struggle to determine whether staffing levels are insufficient under the federal regulations.

Information for this article was contributed by Kat Stromquist of the Arkansas Democrat-Gazette.

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