Increasingly Centralized Control Has Assured that Nursing Homes Don't Innovate (and worse)

My friend Hal Grammer (over at “A Place for Parents” said something I wanted to underline recently – apparently he and I share a brain): he said that elder care is not an environment particularly suited to innovation, and I tend to wholeheartedly agree!

A Paradise for Parents @HalCranmer

Government regulation of healthcare in general discourages innovation. It’s amazing how many healthcare institutions use “we passed our compliance inspection with flying colors.” Being compliant with government/Pharma Directives has very little to do with customer service.

Obviously, I spend a lot of time on this Substack cataloging the damage our governmental and collective response to COVID has wrought on nursing homes and the rest of society – particularly our most vulnerable (children and the elderly). Much of this damage has not been remediated, and many of the more insane and damaging policies continue, like, for example, so-called “universal masking” in long-term care (LTC).

A couple things.

First - I’m not a policy expert, nor a professional medical historian, even as regards the US LTC industry, but after having worked in the space for almost 20 years, I feel like I can do a decent job representing it.

Second – and I want to make this clear - while I may spill a lot of proverbial ink complaining about the downsides of regulation and centralization and how they lead to many very bad (and often damaging) policy choices, I understand that so many of the policy choices, laws, and regulations that have so regulated and centralized LTC are doing so because of very noble aims - to protect older adults who live in these places.

But

1987 & the increasingly Centralized New Normal in LTC

A little bit of history. Prior to 1987, the US nursing home industry, which had undergone a number of years of rapid expansion as a result of the establishment of the US Medicare and Medicaid systems (which pay for skilled nursing care) were regulated via a welter of state and regional entities in terms of how they operated.

Many nursing homes excelled under this more decentralized, deregulated environment. However, a number of others had serious issues, some of which, when they came to light in the media, were horrifying to the public, such as use of physical restraints (like tying residents to wheelchairs), other forms of abuse, poor staffing, and in particular, the use of so-called “chemical straightjacket” approaches to managing behavior problems in nursing residents.

These “chemical straightjackets” refer to the use of so-called antipsychotic drugs (AKA “major tranquilizer” or “neuroleptic drugs”), such as thorazine, haldol, and so-called “second generation” agents such as risperdone and zyprexa – drugs which are designed to quell the symptoms of major psychiatric disorders like schizophrenia and manic-depression – these were instead being extensively used to manage behavior issues in nursing home residents with dementia (like being physically combative when residents are being assisted with hygiene, like changing soiled briefs, or when they are being bathed).

These very public exposes of nursing home care spurred the passage of the 1987 Nursing Home Reform Act, which was passed via the so-called "Omnibus Budget Reconciliation Act” (or OBRA) of 1987, which set a lot of other things quickly in motion. While before, nursing homes were subject to a welter of different standards and expectations based on state and regional laws and regulations, OBRA then subjected nursing homes to a strict set of regulations about things like staffing ratios, medications, assessments, educational approaches for staff, frequency and type of care planning meetings, and a whole host of other things.

Born of the 1987 OBRA passage, nursing homes are now also required to submit all residents to something called a quarterly “Minimum Data Set,” or MDS assessment (currently on version 3.0).

This is a large (IIRC) 45-page assessment developed by the US RAND corporation, that is designed to assess every aspect of the resident's functioning, including eating, sleeping, mobility, behavior – and also dictates care planning in terms of frequency and type, along with other measures.

Again, the “MDS process” is something that all nursing homes are required to comply with (no exceptions – nursing homes don't do it and they don't get paid). Also, make no mistake – it's an arduous process that requires input and upkeep from multiple required and consulting disciplines in the nursing home environment to make it work, along with typically one (and often more) full-time “MDS nurse” who's entire job is centered around making sure the “MDS process” is done properly.

In fact, one of my neighboring nursing homes, years ago (granted, it was a bit larger, with over a 100 bed capacity) had three full time “MDS nurses” working for their facility. That’s right. That’s three nurses - three highly skilled Registered Nurses (RNs) - doing nothing but ‘compliance’ activities - making sure that the MDS was filled out on each resident and submitted properly.

The Accreditation and Site Visit Process – Yet More Centralization

Another overlapping issue with LTC is the ever-present threat of “site visits” by accrediting bodies approved by the Centers for Medicare and Medicaid Services (or CMS), most famously by the Joint Commission on Accreditation of Healthcare Organizations, or JCAHO.

For a LTC hospital to be allowed to accept Medicare or Medicaid money for it’s residents (which makes up around 2/3 of all funding in US nursing homes - a monopoly) they are required to be accredited, or surveyed. That means at least once every 36 months, or more, nursing homes go essentially through this process:

I’ve seen it many times over the years. At times it’s a scheduled visit, but at times they do “unannounced” visits and it’s a mad scramble to clear carts out of hallways, clean rooms, clean floors, clean dayrooms, clean desks, make sure paperwork is in order, and essentially freak out until the visitors come and crawl through resident’s charts and observe various patient care areas for the big show.

A little bit of insider knowledge about the “site visit” process:

First, even if a nursing home is run generally very well - these site visitors always need to find something on a nursing home. There is no such thing as a “clean bill of health” survey visit.

Example - we have a pathway leading from a side door into a common garden area at our nursing home that’s designed primarily for nursing and ancillary staff (it’s narrow) and goes downhill. However, several years ago the site visitors came and said “you know, it doesn’t matter that it’s a path just for staff - if a resident heads down that pathway they could hurt themselves. You need to put in a gate.”

So - of course, we did.

Next year, the site visitors came again (different set of surveyors). They did their visit and examined the gate, and proclaimed the gate a safety hazard (entrapment risk), and then told us to remove it.

Which, of course we then did.

This, of course, took money, engineering time, and was really rather silly either way.

So, there are obviously costs to centralized regulations.

• For example, the rigid requirements for staffing ratios, while they at times assure that residents have staff nearby when they need it, make it difficult for nursing homes to triage staff to other residents or areas where care may be more needed that aren’t easily justifiable using existing measures of resident acuity.

• The requirements on medications create a “whack a mole” situation with prescribers where MDs shift their prescribing to avoid certain, more verboten medications to address behavioral issues, and use potentially even less effective drugs.

• Compliance costs leading to opportunity costs. This is a huge one, and probably the most significant downside of all of this regulation. Remember those three MDS nurses at my neighboring facility? Also remember that the “MDS process,” the site visits, the surveys, correcting things that surveyors want you to correct (even the little things they find just because they need to find something?) this all takes away from what nursing home staff could be doing - providing care and maybe even, you know, innovating new forms of care.

But, in a lot of ways, the centralization brought by Federal regulation has also done good things, right?

• For example - while use of physical restraints were far more common in nursing homes prior to the 1980s, they are now largely a thing of the past, arguably due to the very strict approach taken by federal regulation discouraging this process.

• Also, antipsychotic use has decreased in nursing homes since OBRA-1987, because federal regulations discourage them. This is good, given the fact they don’t have great data supporting their use (and behavioral / environmental approaches tend to work far better anyways).

More than Anything Though - Centralized Regulations in Nursing Homes Enabled Nationwide COVID Craziness

I explored this a bit in last month’s substack piece, “We Need an Urgency of Normal for Older Adults in Long-Term Care in 2023” - specifically how the US nursing home industry is particularly vulnerable to centralized control.

Why? It’s due to the fact that unlike K-12 schooling, which successfully was largely freed from school closures and insane mask mandates due to grassroots lobbying) community nursing home funding is largely monopolized by Medicare and Medicaid. They control the purse strings - so they call the shots.

If they want us to lock down, and mask, and test, and quarantine - with no end in sight - they get to call the shots.

So - as you can see - from my perspective, centralization of regulations, centralized control - these have not only killed innovation in nursing homes, they’ve also enabled the creation of the COVID “nursing home prison” we know of today.