Minimum staffing levels must include RNs plus PCAs – and incentivise NFP providers over For Profits – professor behind US nursing home ratings system tells Commission

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US Professor of Nursing Charlene Harrington (pictured above) has told the Commissioners that mandated minimum staffing requirements that increase with resident acuity should be the “gold standard” for aged care homes – and those that don’t comply should face “severe” penalties, even if they are failing to meet standards because they are financially unviable.

Speaking via video link from her home in California for just over an hour, the Professor – a (non-practising) RN who has worked at the School of Nursing at the University of California in San Francisco for 40 years and sits on the advisory committee for the Centers for Medicare & Medicaid Nursing Services’ (CMS) Nursing Home Compare website – warned against Australia simply setting mandated minimum staffing requirements without prescribing the number of minutes of Registered Nurse time.

“There have been over 150 research studies looking at nursing home staffing,” she told Senior Counsel Assisting Peter Rozen QC. “And many of those studies show that it’s the RN hours that makes the big difference. And far more important than the LVN or the nursing assistant hours. So, it’s very important that nursing homes have adequate RN staffing levels.”

Professor Harrington used the example of some US states where minimum staffing levels were mandated but failed to deliver better quality because the RN hours weren’t specified and nursing homes employed cheaper carers to fulfil the requirements and reduced the proportion of RNs.

The Professor said her research for the CMS – which was published in 2000 and showed that not having minimum staffing levels resulted in harm to residents – recommended a minimum of 4.1 hours of care (including 45 minutes of RN time) per resident per day and this was still applicable today because it was aimed at residents with the lowest acuity.

“A recent study verified that the CNA [Certified Nursing Assistant or personal care worker] staffing for the very lightest care should be 2.8 hours per resident per day,” she stated. “So, we know that any acuity over that lowest level needs to have higher staffing. So that hasn’t been specified but we have guidelines for what it should be.”

Professor Harrington also said there was a case for the Government to expand financial support to government-run and Not For Profit providers – in the US at least – because there the homes with the highest profit margins have been found to have the worst quality.

She argues this would expand the number of higher-quality nursing homes and make the market more competitive.

“The research that I’ve done and many other people have done shows that the only facilities – well, primarily the only facilities in the United States that meet the staffing standards that are recommended are non-profit and government facilities. And so, if we have more of those facilities, then it would give people more access to higher quality care and it would encourage the for-profit facilities to improve their staffing and their quality.”

Commissioner Tony Pagone was clearly intrigued by this idea.

“I can think of lots of examples where the opposite would happen, not necessarily in the aged care sector but where government subsidises or funds an activity and then the result is to drive down the private sector delivery rather than increase it,” he said. “Now, I’m conscious of the answer that you gave earlier on, but are you aware of any studies that have looked at whether what you’ve said there is anything – has any likelihood that it would go your way rather than my pessimistic prediction?”

“No, I’m not aware of any studies,” Professor Harrington replied. “I mean, there have been many studies showing that the poor quality is primarily in the private for-profit sector and, unfortunately, that sector is getting bigger while the non-profits that are primarily owned and operated many times by churches or religious organisations, they have a certain standard and they generally have higher staffing and better quality. And they have more difficulty making the facilities financially viable because of that. So, you see that we’re losing non-profits and we’re losing the highest quality facilities because of the economics, because they are not subsidised in any way by the government.”

Interestingly, the Professor disagreed with Mr Rozen’s proposition that allied health should be included in minimum staffing, saying that allied health staff don’t spend enough time with residents to justify their inclusion (Professor Harrington later repeated this comment to Commissioner Lynelle Briggs, who appeared disappointed by the statement).

However, Professor Harrington was in favour of sanctions for providers who fail to meet minimum staffing requirements – with severe penalties.

“We have a penalty system where you can issue fines,” she said. “But we also have a system, its federal system allows the inspectors to put a hold on admissions of residents and that is the most effective standard. So, we would like to see holds put on any new resident admissions until a facility has met minimum standards for staffing or has adequate staffing levels to meet the needs of the residents.”

This would extend to homes that are unable to meet minimum staffing standards because they are financially unviable, the Professor added.

“We don’t think facilities should be operating if they don’t have adequate financial resources,” she said. “But those nursing homes in the United States are making quite a lot of money the for-profit homes. And so that’s generally not a problem and they do receive fines now. They can receive up to $100,000 in fines if someone has been injured severely or there’s a doubt and this is kind of the cost of doing business for nursing homes. So, I don’t see that as a problem. I think – but I would rather than having a fine, I think they should have a halt so that – put on the admissions so that – and they need to reduce their residents until they have sufficient staff to care for the residents, or they should be closed if they can’t comply.”

The Professor further added that in the US, rural homes receive funding tailored to them – so if they are unviable, the Government should be making sure they are adequately resourced – while requiring providers to prove that they don’t have the cash.

“In the United States, we have very poor financial accountability and very few audits of nursing homes,” she concluded. “And so, this is a big problem where a nursing home can complain that they don’t have resources when they don’t have to show that that in fact is the case.”

Commissioner Pagone (pictured above) was more interested in the Professor’s opinion of sanctions on senior management however.

“I was wondering whether, in the United States there are examples where sanctions are imposed not on the facility but secondarily upon individual people who might have positions of responsibility within the facility so that it’s either a primary or a secondary liability where there’s a default in the facility but the sanction is imposed upon, for example, a managing director or the directors of a company. Do you know whether that’s how it operates in the States at all?” he queried.

“The sanction system that we have in the United States through the … survey process is only on the facility,” answered the Professor. “Although we do know that the poor quality in some of these facilities is the result of decisions by the executives and the corporate management. But they are not sanctioned, although – and we also know that in some cases, if a nursing home does receive a lot of deficiencies and fines, the administrator or the owners of the nursing homes will sometimes dismiss the administer or the director of nursing after the fines have been issued.”

The Commissioner wasn’t deterred though, saying that fines of sanctions on the facility are more likely to negatively affect the residents than the operators.

“It would seem to me to make more sense the fines or sanctions to be imposed on somebody who is likely to feel the effect without the effect then being off-loaded on to the elderly or the residents,” he remarked. “So that if you impose a fine upon the facility, for example, or you close the doors on the facility, or you restrict the number of new entrants, in each of those instances the sanction will be felt by the people who are designed to be helped rather than the people who are culpable. From your perspective, do you see value in the sanction being imposed not upon the facility but upon the owners or the controllers or people of that ilk?”

Professor Harrington said their studies shows that quality in US aged care homes is tied to corporate ownership so they have urged the Government to focus on all privately owned facilities, but they have not followed this advice.

“The government does – the Department of Justice is able to go after some of the corporate owners for fraud and what we call work plus services and in that case, they do sanction the entire corporation. But they don’t sanction individuals within a corporation in terms of the leadership. And they sometimes look at the entire corporation under a five-year oversight by the government, give them special attention and take large amounts of money back from these companies. But it’s still rather a weak system.”

Another sign that the issue of sanctions against boards and CEOs is still on the Royal Commission’s agenda?