On February 28th, 2022, as part of the State of the Union Address, the Biden administration released a fact sheet outlining its goals for increasing nursing home safety and transparency. The Biden Administration stated that these reforms “will improve the safety and quality of nursing home care, hold nursing homes accountable for the care they provide, and make the quality of care and facility ownership more transparent so that potential residents and their loved ones can make informed decisions about care.”

The Biden administration lays out three main goals for nursing home transparency reform:

• Ensuring that the public has better information about nursing home conditions;
• Ensuring that nursing homes provide a sufficient number of adequately trained staff; and
• Ensuring that poorly performing nursing homes are held accountable for improper and unsafe care

TRANSPARENCY IN OWNERSHIP

The Biden administration stated that it intends to combat the negative effects private equity firms have had on nursing homes. Citing the Journal of the American Medical Association among others, the Biden Administration found that private-owned nursing homes had higher rates of preventable emergency room visits and hospitalizations; higher rates of excess mortality and antipsychotic drug prescriptions, decreased hours of frontline working staff, and increased taxpayer spending; and higher rates of Covid-19 infection and death. To that end, the Biden administration is proposing a series of reforms to make nursing home ownership more transparent;

• The Centers for Medicare and Medicaid Services (CMS) will improve the Medicare run website Care Compare. As soon as a minimum staffing requirement for nursing homes is established, Care Compare will display whether a nursing home is meeting that requirement. CMS will prioritize ratings that reflect verifiable data over self reported data, and penalize nursing homes for providing inaccurate information. Biden has called on Congress to give CMS additional authority to validate data and take enforcement action against facilities that submit incorrect information.
• CMS will implement Affordable Care Act requirements regarding transparency in corporate ownership of nursing homes, including by collecting and publicly reporting more robust corporate ownership and operating data. This information is publicly available on both Care Compare, and on data.cms.gov.
• CMS will create a new database that will track and identify nursing home owners and operators across states to highlight previous problems with promoting resident health and safety. This registry will use information collected through provider enrollment and health and safety inspections. This information is publicly available on data.cms.gov.

TRANSPARENCY IN STAFFING

The Biden administration has found that private equity firms cut staffing hours in order to lower costs, resulting in much lower quality care. Therefore, the Biden administration plans to collect and publicize the following information regarding staffing levels in nursing homes:

• The Biden administration plans to establish a “minimum staffing requirement” as a metric to measure staffing, and to make public the nursing homes that fail to meet that requirement. CMS launched a new research study to “determine the level and type of staffing needed to ensure safe and quality care.” While the fact sheet published in February, 2022 states that “CMS will issue proposed rules within one year”, as of [PUBLICATION DATE], 2023, the CMS website has not issued any proposed rules regarding nursing home minimum staffing requirements. 
• CMS plans to rework the Skilled Nursing Facility Value-Based Purchasing (SNF-VBP) Program to prioritize staffing hours. The SNF-VBP program “awards incentive payments to skilled nursing facilities… to encourage SNFs to improve the quality of care they provide to patients.” CMS has begun to collect data on staff turnover and weekend staffing levels. This information is available on the CMS run website Care Compare. The Fiscal Year 2023 Skilled Nursing Facility Prospective Payment System final rule discusses adding a new “total nursing hours per resident day” category for a SNF-VBP program reward payment for fiscal year 2026. The Fiscal Year 2024 Skilled Nursing Facility Prospective Payment System final rule states that CMS will add a Nursing Staff Turnover Measure to the SNF-VBP program in fiscal year 2026.

ACCOUNTABILITY

To hold nursing homes accountable for failing to ensure the health and safety of their residents, the Biden administration fact sheet proposes a series of accountability reforms;

• President Biden called upon Congress to provide additional funding to CMS for their nursing home State Survey and Certification (S&C) program. Under the nursing home S&C program, state Medicaid agencies “[determine] whether a prospective provider is in substantial compliance with the nursing home participation requirements”. The nursing home S&C program collects and publicizes data on nursing homes, and penalizes nursing homes for poor performance. While Biden proposed a $96,927,000 budget increase, for a total proposed program budget of $494,261,000 for fiscal year 2023 (CMS Justification of Estimates for Appropriations Committee, 2023, page 73), the CMS S&C budget was enacted with only a 10,000,000 increase to their S&C budget, for a total budget of $407,334,000 (page 69). This was the first increase in the S&C program’s budget since 2015 (page 123) (for the S&C budget for years 2016-2019, page 69) . This year, for fiscal year 2024, CMS is requesting a $158,526,000 budget increase, for a total budget of $565,860,000 (page 73).
• CMS will overhaul part of their S&C operations, the Special Focus Facility (SFF) program, to “more quickly improve care for [residents of the poorest performing nursing homes]”. CMS identifies the nation’s poorest performing nursing homes and places them into the SFF program, where they must pass two consecutive inspections in order to “graduate”. CMS will make the inspection requirements “tougher and more impactful”, and “allow the program to scrutinize more facilities, by moving facilities through the program more quickly”. Facilities that fail to improve will face increasing penalties, including potential termination from participation in Medicare and Medicaid. A list of nursing homes in the SFF program can be found on the CMS website. On October 21st, 2022, CMS announced revisions to their SFF program to follow through on these proposals.
• CMS will expand financial penalties and other enforcement sanctions on poorly performing nursing homes. CMS will increase the instances in which it takes enforcement actions against poor-performing nursing homes based on desk reviews of data submissions. CMS has also stated that it will explore making per-day Civil Monetary Penalties (CMPs) the default penalty for noncompliance over one-time financial penalties, and increase the maximum per-instance CMP to $1,000,000. As of the date of this article, CMS has not made any significant changes to their Survey and Enforcement Process for Skilled Nursing Facilities and Nursing Facilities Imposition of CMP guidelines (page 115) from January 11th, 2022, to the date of this article.
• President Biden is calling on Congress to give CMS new authority to require minimum corporate competency to participate in Medicare and Medicaid programs. This would enable CMS to prohibit an individual or entity from obtaining a Medicare or Medicaid provider agreement for a nursing home based on the Medicare compliance history of their other owned or operated facilities. President Biden is further calling on Congress to give CMS the authority to “impose enforcement actions on the owners and operators of facilities even after they close a facility, as well as on owners or operators that provide persistent substandard and noncompliant care in some facilities, while still owning others.”

Categories: DATA TRANSPARENCY