The sway of Ohio’s nursing home industry over the state legislature is holding steady, despite a pandemic in which many such centers became COVID-19 hotspots.
Senate Republicans last week in the state budget bill greatly reduced, if not outright eliminated, key provisions put forth by Gov. Mike DeWine that would put more checks on skilled nursing facilities.
The industry praised the changes as a fight back against what it called unnecessary government overreach, but opponents fear they could put nursing home residents at more risk.
In contrast, the House had made relatively minor modifications, if not left the two provisions untouched. The Senate’s harder stance sets the stage for negotiations on a compromise to be reached by the end of June.
Orders against nursing homes
The governor wanted to give his Department of Health the power to issue fines, orders or corrective action against nursing facilities without notice, in cases where immediate action was necessary.
“This will enable the department to swiftly intervene to protect and, if necessary, remove patients from a nursing facility if the health and safety of the patients is at immediate risk,” said Health Director Stephanie McCloud. “The need for the change has been evidenced by a few instances in which residents required assistance.”
She cited an instance where the department was unable to do anything after a nursing home during the winter was unable to maintain an acceptable temperature when boilers stopped functioning.
Under the governor’s budget proposal, nursing homes after the fact could still request a hearing within a month to appeal the decision. No more than a $250,000 fine would be imposed for each instance, and a home would also have to reimburse the health department for any expenses needed to take immediate action.
House lawmakers pared that down with nursing home-friendly changes, adding in a 24-hours advance notice requirement, lower fines and a speedier appeals process. Homes could be reimbursed, among other limits placed on the health department.
The Senate’s changes? Chuck the entire thing.
There’s been some bad blood between state Republicans and the Ohio Department of Health, as many GOP members have expressed distaste toward the health director’s COVID-19 orders. They’ve advanced bills limiting the department’s powers.
“There is a real hesitancy at the moment on the part of some individuals to give any department and perhaps, in this case, because of COVID, particularly the Department of Health, the latitude to take that kind of immediate emergent action,” said Barbara Riley, who chairs the Ohio Aging Advocacy Coalition.
Nursing homes had requested it be removed, arguing the health department can already take immediate action by going to court to issue citations and impose penalties, including closure if issues aren’t remedied.
“Our members were concerned that it was duplicative of existing oversight channels, and that there were insufficient safeguards to ensure these new powers would not be abused,” said Patrick Schwartz, with LeadingAge Ohio, which represents about 400 long-term care facilities.
Instead, the industry sees that removed provision as a power grab from the health director, with no input from others or a pre-action appeal mechanism.
“It’s just an unfettered process to let (the health director) do whatever she wants,” said Peter Van Runkle, with the Ohio Health Care Association. “There’s no checks and balances.”
But Riley, a former director of the Ohio Department of Aging, said the longer it takes for action to happen in dire situations, the more vulnerable residents are.
“There have been situations in the past, where a nursing facility has been out of compliance on a consistent basis and perhaps grows worse and worse over time,” she said. “The delaying tactics that are available to [nursing homes], things like going through a court process, leaves the individuals there at risk.”
Nursing homes in Ohio’s Special Focus Facility Program
Under current law, one form of accountability for nursing facilities is the threat of losing its Medicaid participation.
Ohio takes part in both state and federal versions of the Special Focus Facility Program, which the federal Centers for Medicare and Medicaid Services describes as being for facilities that have a particularly bad history of compliance with health and safety standards.
“Significant problems would often re-surface by the time of the next inspection,” CMS explained in a document why SFF was created. “Such facilities with a ‘yo-yo’ or ‘in and out’ compliance history rarely address underlying systemic problems that give rise to repeated cycles of serious deficiencies.”
If a nursing home in the program does not make improvements or does not graduate from the program, the state’s Medicaid department is required to terminate the home’s Medicaid eligibility. That could be a problem for homes who rely heavily on Medicaid, one of the largest payers in the long-term care setting.
The governor proposed modifying the state program to give them an appeals process, in response to a court ruling that the program was unconstitutional without a form of appeal.
Senate Republicans didn’t bother trying to make the state program comply to the ruling — by repealing the entire program.
“Our feeling about it is, why should we fix an unnecessary and excessive statute?” said Van Runkle, whose organization asked for the SFF’s repeal. “There’s already a federal program in place that does this, that deals with the special focus facilities.”
The federal program does essentially the same thing as Ohio’s, except that Ohio’s required time frame for compliance is sped up and more stringent.
Riley acknowledged the federal SFF would still be there but called it a “low bar” of protection for residents.
“We in Ohio have endorsed that, in essence, we’ve said it’s important that we do something maybe a little more than what the federal government does,” she said, pointing out this doesn’t target all nursing homes, but only the particularly troublesome ones.
“Removing it is basically trying to fix something that isn’t broken,” she added. “What the Senate has done, really, removes another protection for the individuals in these facilities.”
Titus Wu is a reporter for the USA TODAY Network Ohio Bureau, which serves the Columbus Dispatch, Cincinnati Enquirer, Akron Beacon Journal and 18 other affiliated news organizations across Ohio.