A law enacted three years ago intended to ensure quality care at Rhode Island nursing homes has yet to be enforced, and no one is sure when – or if – it ever will be.
The Nursing Home Staffing and Quality Care Act established the strictest nurse staffing mandates in the country when it was passed in 2021, but Gov. Daniel J. McKee had repeatedly issued executive orders suspending the mandate in part because of the additional costs to nursing homes that are already struggling financially.
As a result, no facilities have been fined for violating the law.
Most recently, McKee extended his executive order on March 28, with McKee spokesperson Olivia DaRocha saying the order "will remain in place while the administration continues to pursue long-term solutions to prevent facility closures and stabilize the nursing home industry."
It's not clear what those solutions will be.
The unions representing the nurses say the law is needed to maintain care for elderly residents, but representatives of nursing home owners say the law is too burdensome.
For years, John Gage, CEO and president of the Rhode Island Health Care Association, has called for repealing or amending the mandate because he says nursing homes simply can’t afford to attain the staffing minimum as the industry’s staffing crisis persists.
Gage suggests changing the law so it’s easier for nursing homes to comply by broadening the definition of direct care staff to include workers such as occupational therapists, social workers and mechanisms to acknowledge nursing homes that are trying to hire more staff. Also, he says, the fines should be restructured,
Gage says Rhode Island’s nursing homes are underfunded by around $50 million to $60 million because Medicaid reimbursements haven’t kept up with the cost of providing care. Meanwhile, the size of the workforce is down by around 15.3% and six nursing homes have closed since the COVID-19 pandemic hit, he says.
Most of Rhode Island’s nursing homes have not been able to hire enough staff to comply with the law, Gage says. And those that have complied are struggling to stay open, with some shrinking their capacity by as much as 50%, he says.
“It’s chasing a number that’s not attainable,” Gage said. “Something's got to give because we won’t survive.”
State lawmakers have introduced several bills to change the law with little success. The most recent attempt came from Rep. Robert Quattrocchi, R-Scituate, who submitted legislation this year that would repeal the law. It was held for further study by the House Committee on Health and Human Services. Quattrocchi did not respond to PBN’s request for comment.
Other measures have called for amending the law. Senate Minority Leader Jessica de la Cruz, R-Burrillville, introduced a measure to abate any penalties incurred in 2022 and 2023. The bill was held for further study by the Senate Committee on Health and Human Services.
Gage says nursing homes in Rhode Island nursing homes would have faced a total of $16 million in penalties in the third quarter of 2023 alone. Because fines escalate each quarter, they would rise to around $85 million over the course of four quarters of enforcement and essentially bankrupt the state’s nursing home industry, he says.
However, advocates who support the law challenge Gage’s estimate.
According to information provided by Raise the Bar on Resident Care Coalition, the most recent available data provided by the R.I. Department of Health shows nursing homes would have had to pay more than $11 million in fines in the second quarter of 2022.
Joseph Wendelken, a spokesperson for RIDOH, says the department has not been calculating fines for the period when the mandate was suspended because “collecting and analyzing data from homes to determine fine quantities, as outlined in the legislation, is a very complex, resource-intensive process.”
Nevertheless, Jesse Martin, executive vice president of Service Employees International Union 1199 and member of Raise the Bar, says the union continues to endorse the law and emphasizes it’s important to prioritize providing quality care for residents.
Martin says the measure doesn’t just set staffing standards, but it has also provided financial benefits in the form of annual increases in Medicaid reimbursement rates. However, he adds that the staffing mandate is still crucial for ensuring for-profit facilities – who Raise the Bar says are usually the ones violating the law – are held accountable.
Between 2022 and 2023 Rhode Island’s immediate jeopardy findings rose by 138%, including at least eight deaths, and these are largely caused by staffing shortages, according to Raise the Bar.
“Staffing is the backbone of the industry,” Martin said. “We need laws to protect the elderly.”
Both House Speaker K. Joseph Shekarchi and Senate President Dominick J. Ruggerio, who supported the staffing mandate, say they do not want to repeal the law but are considering revisions that have been proposed, including de la Cruz’s bill to forgive fines.
“We want to make certain that nursing home residents and dedicated staff continue to be protected, and we are also concerned about the financial hardships of some of the state’s nursing homes,” Shekarchi and Ruggerio said in a joint statement to PBN.
DaRocha says McKee’s office is waiting for results from a rate review from the R.I. Executive Office of Health & Human Services, which may recommend more Medicaid rate increases this fall. Also, McKee has requested $10 million in State Fiscal Recovery Funds to help bridge the gap of the new fiscal year, beginning July, and implementing the new rates in October. Shekarchi and Ruggerio say this $10 million proposal will be reviewed amidst “increasing budget pressures.”
Katie Castellani is a PBN staff writer. You may contact her at Castellani@PBN.com.
Correction: An earlier version of this story gave an incorrect time period in which the Rhode Island Health Care Association says $85 million in fines would accumulate in the 14th paragraph. The association said penalties could rise to $85 million over four quarters.
We will see how serious our state is with minimum staffing when they decide the new Medicaid rates for October 1. The rearray is based on 2022 costs…… in 2022, 70 percent of the homes were not in compliance with minimum staffing. So basing a rearray on median costs or average costs in 2022, won’t come close to adequately funding minimum staffing regulations. Stay tuned!!