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The spikes that adorn the outer surface of the coronavirus, which impart the look of a corona, when viewed through an electron microscope. CDC photo

At the height of the COVID-19 pandemic, New York state moved many critically ill patients from hospitals back to nursing homes, contributing to as many as 15,000 deaths.

There were bodies piled in refrigerated trucks. Family members, prohibited from being with loved ones in their last moments of life, cried outside nursing homes, hands pressed against the glass. Meanwhile, swamped and exhausted nursing home workers struggled to provide care.

In many nursing homes, there just weren’t enough workers — many of them were sick or terrified themselves — to care for so many critically ill and dying residents. Now that the pandemic is finally loosening its grip, New York and several other states are setting higher standards for nursing home staffing.

A bill passed by the New York Senate and Assembly, which Democratic Gov. Andrew Cuomo is likely to sign, would require nursing homes to provide a daily average of 3.5 hours of care per patient by a nurse or nursing assistant. A separate budget bill, also passed by both chambers, would require nursing homes to spend 70% of their revenue on patient care. Of that 70%, at least 40% would have to go toward paying nurses.

While there are some federal and state standards in place for staffing, experts say the rules are easily circumvented.

“The COVID-19 pandemic has exposed how understaffing in our healthcare facilities, especially at our embattled nursing homes, can lead to a dangerous environment for residents and workers,” state Sen. Gustavo Rivera, the Democratic chair of the Health Committee and chief sponsor of the bill, said in an email to Stateline.

But Assemblymember Josh Jensen, a Republican, said setting staffing thresholds might make it more difficult for nursing homes to fulfill all their responsibilities to residents. Jensen spent a year as the director of communications in a nursing home in his upstate district before his election to the Assembly last November.

“I saw in my experience how challenging the situation was before COVID and the struggles they were facing with getting enough staff,” Jensen said. “This bill is going to tie the hands of nursing homes and take away the resources they need for the entirety of nursing home care.”

Jensen also said the $64 million lawmakers annually put in the state budget to help nursing homes hire more staff is not enough. New York, he said, is “just putting in more mandates with not enough financial support.”

A 2018 study of federal data by Kaiser Health News found that most nursing homes exaggerated staffing levels. Using data from Medicare’s compilation of daily payroll records, Kaiser found that staffing fluctuated day-to-day, and many homes were understaffed on weekends.

Before 2010, the Kaiser study said, Medicare rated the staffing levels of a nursing home based on the facility’s unverified reports, which likely led to inflated numbers.

There is evidence that this type of exaggeration still goes on. In March, the state of California sued a national company, Brookdale Senior Living, accusing it of filing false staffing numbers. Brookdale owns and operates more than 700 older adult living and retirement communities in the United States.

In filing the lawsuit, then California Attorney General Xavier Becerra issued a statement accusing Brookdale of “artificially increasing its profits by cutting corners when transferring or discharging its patients. It lured individuals to its facilities through false promises about providing the highest quality care.” Several days later, the U.S. Senate confirmed Becerra as secretary of the U.S. Department of Health and Human Services.

The Long Term Care Community Coalition, an advocacy group for nursing home residents, reported that for the fourth quarter of 2020, New York nursing homes on average provided 3.45 hours of care a day per patient, ranking the state 32nd in the nation. A federal study from 2001 called for 4.1 hours.

While Jensen argued that the standards were too hard to meet, the New York state chapter of AARP, which advocates for older adults, said the bill’s requirements didn’t go far enough.

Bill Ferris, AARP’s New York representative, said in a phone interview that while the New York bill “definitely goes in the right direction,” the standards are too low.

“In negotiations, the bill went from 4.1 to 3.5 hours per day. We were troubled by that,” he said. “The other issue is that they have 1.1 hours at a minimum for licensed practical nurses and registered nurses. We didn’t like that, because AARP believes that the more care that is provided by an RN you have a better outcome. We don’t think this does enough.”

The federal Centers for Medicare and Medicaid Services (CMS) calls for staffing that is “adequate” to meet the needs of the nursing home residents. But AARP’s Rebekah Mason, a senior legislative representative, said the agency has never defined adequate, though a CMS paper uses the 3.5 hours standard. Some states, such as California, use that standard, but allow waivers depending on circumstances.

“The devil really is in the details,” she said. “States determine how they train and how they license the workers in nursing homes. When we are looking at these bills, we are looking at apples and oranges. Different workers are trained with different standards. Aggregating what is reported as direct care may not end up benefitting residents if they are not careful.”

Mason pointed to New Jersey as a state where a new law has set a reasonable level of care.

Spurred by the pandemic, New Jersey Gov. Phil Murphy, a Democrat, signed a bill late last year establishing minimum direct care staff-to-resident ratios in nursing homes.

The new law calls for one certified nursing assistant for every eight residents during the day shift, one nurse or CNA for every 10 residents in the evening shift, and one staff member for every 14 residents for the night shift.

The law, Murphy said in his signing statement, requires long-term care facilities to institute policies that prevent social isolation of residents.

“Sadly, too many nursing homes are run by companies more interested in making money than protecting patients,” he said. “These long-sought reforms will help bring accountability to the industry and protect residents, staff, and family members with a loved one living in a long-term care facility.”

Massachusetts last fall also announced new regulations that require a staffing minimum of 3.5 hours per patient and require the investment of at least 75% of revenue toward direct care staffing costs.

Stories from the pandemic spurred this action, especially in New York with its high death toll in nursing homes.

At a Health Committee hearing last August, a New York resident named Bonnie Webster testified that her mother had died in a nursing home in Avon from COVID-19, and that her father had died by suicide shortly thereafter, out of despair. Part of the problem, Webster said, was the lack of responsiveness from the overwhelmed and decimated staff.

“Our nurses and staff didn’t have the tools or the staff to properly attend to our family members,” Webster testified. “It’s just horrific what has taken place. Unfortunately, our family has been dealt a huge blow from this pandemic.”

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