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New nursing home rules coming in Pa. are being kept secret as COVID-19 roils the industry

Advocates hope the new rules will reflect what has been learned during the pandemic.

Pennsylvania Secretary of Health Dr. Rachel Levine speaking to reporters. The Pennsylvania Department of Health has been working on revisions to the state's nursing home regulations, but has not said when they will be released for public review.
Pennsylvania Secretary of Health Dr. Rachel Levine speaking to reporters. The Pennsylvania Department of Health has been working on revisions to the state's nursing home regulations, but has not said when they will be released for public review.Read moreCommonwealth Media Services

Pennsylvania is in the midst of revising its nursing home regulations for the first time since the late 1990s in a process that started long before the coronavirus pandemic swept through the state’s nearly 700 facilities.

That worries advocates for the elderly who say they have been in the dark about what the state is planning and want to ensure that the new rules help prevent future pandemics from being so devastating to the long-term care facilities.

“We should take what we learned from COVID, and we should strengthen our regulations accordingly, especially in the areas of staffing and infection control and in making sure that we are careful in our licensing process to only give licenses to providers who are going to be able to provide quality care,” said Pam Walz, a supervising lawyer at Community Legal Services of Philadelphia.

Research this year has shown that the prevalence of COVID-19 in the community where a nursing home is located is the biggest predictor of COVID cases and deaths in a nursing home, but also that more direct nursing care may help contain the disease in a facility. Pennsylvania’s current requirement of at least 2.7 hours of daily nursing care per resident is far below the 4.1 hours recommended by the Pennsylvania advocates.

In the week ended Dec. 3, Pennsylvania long-term care facilities recorded nearly 5,000 new COVID-19 cases, according to the COVID Tracking Project. That’s about twice Pennsylvania’s weekly total in late April, according to state data. Nearly 7,500 Pennsylvania nursing home residents have died after contracting the virus.

To what extent the state has built experience from the pandemic into its draft is not known to the advocates because the state has declined to share with them what changes are under consideration — even verbally, according to Alissa Halperin, a Phoenixville consultant on legal issues for the elderly.

» READ MORE: After COVID-19, nursing homes are in need of long-term care

Along with Community Legal Services, the Center for Advocacy for the Rights and Interests of the Elderly laid out how current regulations should be strengthened in a letter last month to the Health Department. Also involved in the effort were David Hoffman & Associates PC, Disability Rights Pennsylvania, Pennsylvania Health Law Project, and Senior Law Center.

Nate Wardle, a spokesperson for the Health Department, declined to say when the new regulations would be published. Once that happens, they will go through the standard regulatory review process. “These things take time, and the entire department is assisting in the response to COVID-19,” he said. “However, they are still being actively worked on.”

In New Jersey, Gov. Phil Murphy in October signed laws that establish minimum staffing ratios for long-term care facilities. Those measures established a task force to study how to ensure a better supply of direct-care workers and require long-term care facilities to come up with ways to prevent isolation during a pandemic.

The effort to revise Pennsylvania’s nursing home regulations followed a 2016 report by Auditor General Eugene DePasquale that criticized the Health Department for not being consistent when evaluating compliance with staffing requirements and for exercising “considerable administrative discretion,” preferring to educate facilities on ways to improve care first rather imposing civil fines.

» READ MORE: Abramson Senior Care sells Horsham nursing home to N.J. for-profit group

Regulators had meetings with industry representatives, officials from at least one union, and others — but not advocates — in 2017 and 2018. Those talks focused primarily on the two topics that are most important to the advocates: staffing levels and the rules surrounding ownership changes, said Anne Henry, chief of government affairs for Leading Age PA, a trade group for nonprofit senior care services.

Henry said that since the stakeholder discussions ended, her organizations have not heard much about the status of the revised regulations.

As an industry representative, Henry disagrees with the advocates on increasing specific staffing requirements. “A facility needs to look at their resident population, look at the needs of the residents, look at your staff, look at their longevity, have they been well trained, those kinds of things, and then the facility should really determine the staffing for quality care,” Henry said.

She said any significant increase in staffing requirements would have to be accompanied by a Medicaid rate increase, something that the state hasn’t done in years.

In addition to staffing, a major concern for advocates is winning more transparency around licensing and the sale of nursing homes. They would like to see public notice requirements and opportunities for public comment. That could be especially important given the financial fallout from COVID, which is expected to cause many nursing homeowners to give up and sell out.

» READ MORE: COVID-19 vaccine can’t come too soon for nursing homes, but many questions remain

They want to avoid another Skyline Healthcare, which collapsed in 2018 after a period of explosive of growth. Skyline took over at least 100 nursing homes in seven states in just a few years but lacked the financial resources to support them. Pennsylvania regulators ousted Skyline from nine facilities when the company couldn’t pay its bills.

Such transfers happen in a black box as far as the public is concerned, said Diane Menio, executive director of the Center for Advocacy for the Rights and Interests of the Elderly. “We don’t know what’s happening. The residents don’t know. Their families don’t know.”