Bill changing Florida nursing home standards was written by the industry, emails show

TALLAHASSEE — A bill to loosen staffing standards at Florida nursing homes was initially drafted with the help of one of the state’s most powerful long-term care lobbying interests.

Under the measure, Senate Bill 804, nursing homes that fail to meet state-mandated staff requirements would no longer be barred from admitting new residents.

It also would broaden which kinds of employees can be counted in these mandatory staffing minimums, which are intended to keep residents safe.

Proponents say such a bill is desperately needed to deal with a chronic and growing staffing shortage at long-term care facilities. But patient advocates fear the bill as written will lower the standard of care in nursing homes — without increasing the amount of staff inside.

“COVID definitely has affected staffing,” said Lindsay Peterson, a professor and researcher at the University of South Florida School of Aging Studies. “Is this the answer? I don’t know.”

Sen. Ben Albritton, R-Wauchula, the bill’s sponsor, said he filed the measure after the Florida Health Care Association brought him drafted language. But Albritton said the bill’s language is a starting point meant to bring parties together on a solution to help ease the long-term care industry’s staffing shortages.

“They brought a piece of legislation that I looked at and felt like was a starting place — with the absolute intention to do exactly what we are doing going forward. And that is, get everybody in the room,” Albritton said. “Anybody else could have brought me language.”

Emails obtained by the Times/Herald in a public records request show that, from the beginning, Albritton’s office was coordinating the bill’s language with Toby Philpot, the chief lobbyist for the Florida Health Care Association. The association represents nearly 600 nursing homes and assisted living facilities in the state. It’s the largest industry group in the state, a dominant player in the multibillion-dollar long-term care space.

On Oct. 25, John Hinchee, Albritton’s aide, emailed Philpot to let him know the legislative language Philpot had suggested had been turned into a drafted bill. The aide asked Philpot to get in touch if any changes needed to be made.

One week later, Hinchee wrote Philpot to tell him the bill’s language had been finalized.

“It should reflect the modifications you addressed,” Hinchee wrote. “Take a look and let us know if it is ready to file or needs any other corrections.”

The bill was filed two days later.

Kristen Knapp, a spokesperson for the Florida Health Care Association, said her group is “always part of the process when it comes to offering solutions and forward-thinking recommendations to our lawmakers.” Her organization has launched a social media campaign in support of the legislation.

A companion measure, House Bill 1239, has also been filed in the House by Rep. Lauren Melo, R-Naples. Neither bill has gotten a hearing in the House or Senate.

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Once his bill was filed, Albritton arranged a meeting between the interests that have the most to gain or lose from changes to the way long-term care facilities are staffed. On Jan. 18, representatives from groups including AARP, Service Employees International Union, Florida Health Care Association and LeadingAge Florida had an hourlong meeting at which they hashed out their concerns.

Steve Bahmer, CEO and president of LeadingAge Florida, which represents mostly nonprofit long-term care facilities, said the meeting was a good-faith effort to bring the parties together for a compromise.

The parties have yet to agree on final language. Once they do, Albritton said he will file a “strike-all” amendment to his bill — a process that could entirely redraft the legislation.

“It appears at this point that it’s going to be something very different,” Albritton said of the legislation that will eventually be heard by a Senate committee.

Quality care linked to staffing

In 2001, Florida passed legislation that strengthened regulations in nursing homes — particularly around the amount of time qualified staff must spend directly caring for patients.

Studies show the quality of care residents receive is linked to the number of highly trained staff in a facility.

This is particularly true when it comes to nurses, although evidence suggests the same may be true for certified nursing assistants, who perform less medically complex tasks and provide the bulk of care for residents.

Today, nursing assistants, colloquially referred to as CNAs, must provide 2½ hours of direct care to each nursing home resident daily.

Because of the changes enacted by the Legislature, Florida has been considered a leader on minimum staff standards, faring better on metrics like weekend and evening staffing than other states.

Changing population?

Nursing home industry leaders say the needs of the people they care for have changed in the last two decades and that flexibility with staffing is needed to account for some of the specialists working with residents.

“We have people who are coming to us after a stroke or heart attack, younger residents who have traumatic brain injuries or opioid addiction, and a significant number of residents who have Alzheimer’s and dementia,” Knapp said.

“We’re looking at a more holistic approach, as opposed to just fitting them in a standard that was created in 2001,” she added.

More than 85 percent of member nursing homes reported having to limit admissions in mid-January because they didn’t have enough employees to meet the current staff standards, Knapp said.

“We can’t take patients if we don’t have the staff,” she said. “We have to follow the staffing requirements that are put in place by the state. It causes an access issue.”

The proposed House and Senate bills would allow time spent with “non-nursing” direct care staff — such as physical and occupational therapists, activities staff, mental health workers and social services employees — to count toward nursing assistants’ hours of care.

Under the House bill, nursing assistants would still need to provide at least 1.8 hours of care per resident daily. No similar requirement for nursing assistants exists in the Senate draft legislation.

The one hour of care nurses are required to provide each resident daily would remain intact in both bills, as would the current ratio of nursing assistants to residents.

But whether a facility meets its overall staffing requirements would now be based on a monthly, rather than weekly, average of hours of care provided.

Real crisis, contentious fix

Nursing homes and patient advocates agree: The recent surge of the omicron variant of the coronavirus has made conditions at nursing homes worse.

The state’s long-term care ombudsman, Michael Phillips, said he’s seen an uptick in staffing-related complaints in recent weeks from both employees and residents.

But attempts to change Florida nursing home staff requirements are not new.

As recently as last year, the state passed a law that allowed less experienced staff known as personal care attendants to count as nursing assistants for staffing requirement purposes. Personal care attendants generally receive two workdays of training before beginning direct care for residents, and perform less medically complex tasks than nursing assistants.

Proponents from the nursing home industry marketed the measure as a “nursing assistant-in-training” program. These attendants would act as an immediate bandage on the staffing crisis, and ideally many would go on to pursue certification and become permanent nursing assistants.

About 38 percent of these personal care attendants — 474 out of 1,235 total to date — have gone on to become nursing assistants, according to survey data provided by Knapp.

Yet elder abuse watchdogs and employee unions say that changing minimum staffing requirements is not the right solution for staffing woes.

“It works against the residents’ welfare, and it keeps the facility from being cited for not having sufficient staff,” said Phillips. “The needs of the residents are on a daily basis — not on a monthly basis.”

Specialized staff may not care for all residents, Phillips said. By changing the requirements, nursing homes will not need to employ as many staff members that do.

”The vital things that prevent pressure sores, the turning of a patient, lifting up a patient who’s heavy to eat, those things are what nursing staff provide,” said Roxey Nelson, a Tampa Bay-based spokesperson for the Service Employees International Union, which opposes the bills as drafted. Other specialized staff are not equipped, and may not be willing, to handle those tasks, Nelson said.

It isn’t clear how long the pandemic — and its accompanying staff shortages across all industries — will continue.

But the proposed laws, if passed, may outlive it.

“Do we need a permanent change for something that’s potentially temporary?” Peterson said. “That’s the question.”

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