DeSantis signs controversial bill to boost staffing at nursing homes

·7 min read

Originally intended as a tourniquet to help mitigate staffing shortages at nursing homes during the pandemic, a new law will make permanent a program that allows facilities to hire less experienced employees to supplement the work of nursing assistants, who are able to provide more complex care for seniors.

“In a nursing home, you’ve got people that you’re caring for — so you have to have staff,” said Kristen Knapp, communications director at the Florida Health Care Association, which represents over 80 percent of Florida’s nursing home industry. “We’re not like a restaurant that can shut down its dining room or close early if they don’t have enough people. This is a way we can help meet those needs.”

HB 485, which Gov. Ron DeSantis signed into law today, allows a type of worker known as a “personal care attendant” to count towards the staffing requirements for nurse assistants, though they have less training and a more restricted role in the type of assistance they can provide.

While largely supported by lawmakers and the nursing home industry, elder care advocates and worker rights organizations fear the initiative will be used to dilute the quality of care for seniors living inside these facilities.

“I think people are going to die,” said Zayne Smith, advocacy director at AARP Florida. “I think we can expect the worst, I really do.”

Setting staff standards

Twenty years ago, Florida passed a law that strengthened regulations in nursing homes — particularly around the amount of time qualified staff must spend directly caring for patients.

Recognizing an older person’s quality of care was linked to the amount and quality of staff in a facility, Florida mandated that certified nursing assistants — who support residents with daily health needs under the supervision of a nurse — must provide two-and-a-half hours of direct care to each nursing home resident daily.

The coronavirus pandemic both highlighted the importance of staff — staffing levels would prove to be a strong predictor of how residents would fare during an outbreak — and exacerbated existing employee shortages.

In March 2020, as more staffers became infected with the virus or quit due to health concerns, the state implemented an emergency program that allowed nursing homes to temporarily hire personal care attendants to help amid the deficit.

Personal care attendants assist with daily living activities. After 16 hours of training, they’re able to begin caring for residents and, through hands on experience, are meant to continue learning on the job. They can do so for up to four months — at this point, they must take the exam to become a certified nursing assistant if they wish to continue working at a facility.

Emergency program becomes permanent

The initiative was widely supported at the time. But the new law will make the program permanent, codifying it into Florida’s nursing home regulations.

HB 485 passed in the House and Senate with widespread bipartisan support.

“We saw this as appropriate for an emergency situation – but not on a permanent basis,” said Michael Phillips, long-term care ombudsman of Department of Elder Affairs and chief advocate for long-term care residents in the state, who testified against the law in subcommittee meetings. “We believe it ultimately lessens the quality of staff in the facility.”

Unlike certified nursing assistants, personal care attendants are not allowed to perform any task that “requires clinical assessment, interpretation, or judgment.”

By allowing personal attendant care to be counted as if it was time a licensed nurse assistant spent caring for a resident, critics fear the law will be used to hire fewer nurse assistants, who are paid higher salaries and cost nursing homes more, in favor of less-qualified staff.

“They’re getting cheaper, less trained labor,” said Smith of AARP Florida, which joined the state’s largest health care union in opposing the bill.

“Even if they’re only going to be handing residents a remote control or bringing them a cup of water, they’re still replacing time that would be spent with someone who actually is hands-on with the patient,” she added.

There is currently no required number of certified nursing assistants that need to be on a floor while a personal care attendant is working. “When they are allowed to count lesser trained people toward the direct care hours, then that means fewer people who have the higher training,” said Lindsay Peterson, assistant professor at the University of South Florida School of Aging Studies. “I would feel better if it said you still have to have some higher training people working with them.”

Most personal care attendants are paid minimum wage, according to Knapp. If they take the certified nursing assistant exam and pass, they receive a pay increase, but they’re not necessarily paid the same amount as nursing assistants who have gone through formal classroom training.

A training program?

Supporters of the new law said the personal care attendant program is not intended to replace the role of certified nursing assistants, though they noted that keeping the ability to count attendants in staffing standards was a key priority for them.

Instead, it’s meant to act as a “training program” for future certified nursing assistants — personal attendants can take the nurse assistant certification exam at any time, and must do so if they wish to continue working in the facility after their four months are up.

“The idea is this is a career ladder,” said Knapp, who noted that a traditional nursing assistant course can be costly.

To ensure personal care attendants don’t hop from facility to facility after their four months expire, House sponsor Sam Garrison, R-Fleming Island, said he amended the law to require attendants only work at a single nursing home during their time in the program.

No governmental agency appears to be tracking the program’s success in creating future nurse assistants. Florida’s Agency for Health Care Administration, the Department of Elder Affairs and the Department of Health all said they do not collect data related to this information.

Most personal care attendants who took the exam to become nursing assistants passed, according to a study conducted by the Florida Health Care Association and submitted to lawmakers in December 2020.

But few appear to have done so — of the 1,178 personal care attendants hired during the pandemic, only 191 went on to become nursing assistants, according to their data.

Quality linked to training and retention

“There’s a lot of research that connects higher staffing levels to better care, and in particular, levels of staff who have higher training,” Peterson said. “It’s not just any staff, it is staff that know what they’re doing.”

Retention is also key, she said — studies show employees who build relationships with residents over time are able to more quickly identify when they experience a change in health.

Peterson said a stronger way to recruit and retain certified nurse assistants would be to increase pay and benefits, a strategy that has had success in other sectors experiencing worker shortages, such as the restaurant industry. “I’ve heard nursing home administrators say, ‘A Wawa opened up down the street. They’re paying $1 more an hour, and we’re losing our staff,’” she said.

Knapp said many facilities are offering hiring and recruitment bonuses to try to incentivize staff — but she said for-profit nursing homes in Florida have limited ability to raise wages, as they’re partially funded by Medicaid and Medicare.

“Unlike in a Starbucks that could raise the price of your coffee so they can pay their employees more, we can’t do that,” Knapp said. “Our rates are set by the government, so we have all that we only have a limited amount of funds to work with.”

The new law will go into effect after the Florida’s health care agency develops more specific training for personal care attendants in the rule-making process. Until then, the current emergency program will apply indefinitely.

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