First-of-its-kind nursing home staffing minimum proposed. Will it protect Texas residents?

Federal statistics show Mitchell’s mother’s facility has a staff turnover rate of more than 80% in the last year -- a trend seen across the state, with a 60% turnover rate in Texas.

AUSTIN (KXAN) – Lori Mitchell remembers how she felt, after receiving a call one early morning in January and learning about her mother’s death.

Her voice broke as she remembered the staff member at her mother’s Round Rock nursing facility encouraging her to contact a funeral home, where her mother’s body had apparently been moved.

“I was confused because I had not given consent for anybody to pick her up,” she recalled.

“An hour later, the nursing home called me back and said, ‘Your mother is back up here.’  And I said, ‘I don't understand what's going on.’ They said, ‘Well, there was a mistake. She's back here now.’”

Hours earlier, according to state records detailing the incident, the family of a different resident received a similar call from the facility, telling them their loved one passed away. That family started making arrangements to have the body transported from the facility to a funeral home they chose.  

But, as it turns out, their loved one was alive.

The state records show this woman’s roommate – Mitchell’s mother – had died. The facility “made an error.”

'This didn’t have to happen'

Texas regulations outline how skilled nursing facilities should notify a resident’s representative about their death and how to properly report information about a death. Other regulations govern how personal information should remain private.

Despite the mix-up, an inspector determined the facility did not violate any state regulations and followed their own protocols and procedures, according to state records. The state did not cite the facility, and the claims were ruled “unsubstantiated.”

The report also noted several changes made by the facility to prevent this type of incident from happening again: they updated residents’ profile photos and posted more clear signs on residents’ doors.

“It's great that they made all these changes, but these changes were not in place prior to my mother passing away,” Mitchell said. “I understand mistakes, but that's a huge mistake.”

Frustrated with the outcome of the inspection, she reached out to KXAN investigators, following a series of KXAN reports on how the state determines whether to cite or punish long-term care facilities in substantiated cases of neglect, abuse or harm.

In the more than five years her mother lived at the facility, Mitchell believes she received good care.

Still, she began to worry last year, after noticing some long-time nurses leaving, she said. At one point, Mitchell even filed a complaint with a local ombudsman about some of her concerns.

But Mitchell said the outcome of the incident after her mother’s death made her wonder, ‘Was this the kind of care she was receiving?’

KXAN reached out to the facility and its parent company for comment several times and did not hear back.

'More people are going to lose'

Federal statistics show Mitchell’s mother’s facility has a staff turnover rate of more than 80% in the last year -- a trend seen across the state, with a 60% turnover rate in Texas. According to The Centers for Medicare and Medicaid Services (CMS), the turnover rate is 53% nationwide.

“You have a shortage of direct care staff, and you have multiple providers that are all trying to recruit the same individual -- more and more people are going to lose than win,” said Kevin Warren, the president and CEO of the Texas Health Care Association (THCA), which represents hundreds of skilled nursing facilities in the state.

The nursing home industry has been ringing alarm bells about staffing shortages – exacerbated by the pandemic – for years. At the same time, the federal government and President Joe Biden have promised to do more to improve care and protect people living in these facilities.

Eighteen months after the president reiterated these claims in his 2022 State of the Union Address, federal regulators responded with a long-awaited proposal. It features more oversight and accountability for facilities, some efforts to expand the skilled nursing workforce, and – most notably -- an unprecedented, nationwide staffing requirement.

• Read more about the federal proposal here

If the proposal went into effect, facilities nationwide would be required to provide residents with at least 33 minutes of care from a registered nurse (RN) every day and at least 2 hours and 27 minutes of care from a nurse aide. The proposal also calls for an RN on-site at every facility, 24 hours a day and seven days a week.

“When facilities are understaffed, residents suffer. They might be unable to use the bathroom, shower, maintain hygiene, change clothes, get out of bed, or have someone respond to their call for assistance,” HHS Secretary Xavier Becerra said in a statement, when the proposal was announced last month.

Warren calls the proposal “untenable” and “disappointing,” given the staffing crisis currently facing the industry.

“You have counties in the state of Texas that maybe only have one or two RNs in the county,” he said. “To simply put a mandate on it, doesn't manufacture new staff to come into the profession.”

CMS estimates approximately 75% of nursing homes would have to strengthen staffing in their facilities in order to meet the new standards. An analysis by the Kaiser Family Foundation estimates only 4% of Texas facilities would meet the proposed standards.

Texas doesn’t have any required staffing minimums right now, but CMS statistics show on average in Texas, residents receive 22 minutes of care from an RN and 1 hour and 55 minutes from a nurse aide.

KXAN investigators asked Warren whether that was an adequate amount of care for Texans in these facilities.

Warren responded that he hopes the focus isn’t “merely on hitting a number.”

"It doesn't take into account the social worker, the activity director, housekeeping, you know, the therapy staff, the dietary staff, volunteers, all of these other individuals that are in the building each and every day that are engaging,” he explained. “The same individuals that aren't recognized within the proposal are the same ones that are the additional eyes and ears for those direct care staff – that say, ‘Hey, you know, the resident in this room, I think, needs help that I can't provide.”

The proposal has not been adopted and is subject to change during an ongoing "comment period," where residents, family, facility operators, staff, advocates and the public can all submit questions, concerns or input about the plan. The comment period runs until November 6.

• Submit a comment on the proposal here

KXAN reached out to the Texas Health and Human Services Commission (HHSC), which would be responsible for regulating any new requirements on the state level.

An agency spokesperson said, "As proposed, there is a three-to-five-year implementation period during which the state would expect further federal guidance around state responsibilities for each of these activities."

They went on to say, "HHSC will inform providers when CMS issues final guidance and how it will affect Texas providers."

'The first thing you look at is compensation'

The federal proposal goes even further, with additional oversight initiatives and audit efforts aimed at “ensuring taxpayer dollars go toward safe, high-quality care.”

For example, the HHS Office of the Inspector General will perform a new analysis of “how nursing homes may profit at the expense of taxpayers and residents by using services, suppliers, or facilities controlled by parties they own or are otherwise connected to, rather than from vendors who might charge a more competitive price.”

The proposal also calls on states to collect and report on compensation for workers as a percentage of Medicaid payments.

“The first thing you look at is compensation -- that if you don't pay an adequate amount, you will not attract people from less demanding jobs. Doing the kind of work that the nursing staff does in a nursing home is demanding work physically and psychologically,” U.S. Representative Lloyd Doggett (D-Texas) said.

Doggett told KXAN he hoped to see even stronger staffing minimums, citing a 2001 study that recommended requiring even more minutes per resident.

He said he understands a stronger requirement could require a greater Medicaid investment to fund it.

“If the industry can make a good case that additional money needs to be put into this, I believe those in nursing homes and their families do deserve that and that we should make that investment,” he said.

Warren pointed out that some states pay a higher Medicaid rate than Texas, in order to cover the cost of care.

KXAN investigators asked him about the money allocated by the legislature in 2023 to increase the Medicaid base rate, marking the largest increase seen in Texas in years.

“Will that money be used to try and ease some of these staffing shortages and recruit more care?” KXAN investigator Avery Travis asked.

Warren said that while the industry was “extremely grateful,” the investment only got facilities back up to the emergency funding levels they saw during the pandemic.

“So, it was kind of replacement. But again, those were extremely necessary and needed funds,” he said.

The legislative funding also came with strings attached: a large portion of the funds have to be used on direct care and staffing expenses.

'Appropriate consequences'

Federal regulators announced a few other initiatives, alongside the staffing proposal.

Those include an audit of direct care staffing data, to ensure accurate information is available to families and residents, and an analysis of state inspection findings to ensure deficiencies and violations “receive the appropriate consequence, particularly in incidences involving resident harm.”

According to CMS, “These analyses will ensure citations are applied more consistently and reflect the seriousness of the deficiency, permitting appropriate follow-through and enforcement."

It’s part of why Mitchell wanted to tell her story in the first place.

"I'm not sure what the answer is, honestly,” she said. "I just felt like something needs to change. And if I have a small part in making that happen, my mother would be proud.”