As the coronavirus ravages chronically understaffed Illinois nursing homes, state fines to enforce decade-old staffing minimums are supposed to take effect next week. But a lawmaker who helped broker administrative rules for the penalties says the enforcement will wait awhile longer.
A 2010 law established minimum hours of direct daily care for residents who need skilled nursing. Lawmakers did not enact the fines until 18 months ago. That measure says “monetary penalties shall be imposed beginning no later than Jan. 1, 2021.”
The Illinois Department of Public Health has nearly finalized the rules for the enforcement but state Sen. Bill Cunningham, D-Chicago, says IDPH won’t actually start issuing fines until mid-year.
“That will allow the nursing homes to staff up as we hopefully move out of the pandemic,” said Cunningham, co-chair of the legislature’s Joint Committee on Administrative Rules, which backed a draft of the enforcement rules last week.
“It will also give the Department of Public Health the ability to hire inspectors,” Cunningham said. “That’s something they haven’t done yet, and they can’t really enforce these rules until they have boots on the ground.”
A 2018 report by AARP ranked Illinois among the worst states for nursing-home understaffing and use of psychotropic drugs to sedate residents. An investigation that year by the Chicago Tribune and Kaiser Health News found that sepsis, a deadly bacterial infection that can result from bedsores, had proliferated in the understaffed facilities.
Lobbying groups representing nursing home owners, meanwhile, blamed their low staffing levels on the state’s Medicaid rates for their facilities — which they reported were lower than most other states. Medicaid constitutes the bulk of revenue in nursing homes operated for profit.
The 2019 law addressed all these concerns, increasing state funding for the industry, tightening rules on sedative use and requiring enforcement of the 2010 staffing minimums.
Before the administrative rules for issuing the fines were in place, however, the coronavirus hit.
Nursing homes in Illinois with lower staffing coverage leading up to the pandemic have tended to have higher COVID-19 infection and death rates, according to a WBEZ investigation published last month. The investigation, based on federal ratings of nurse-to-patient ratios, also found that the staffing coverage was generally worse in for-profit facilities than in nonprofits.
Nursing-home residents in Illinois are now contracting COVID-19 and dying from it at their highest reported rates, according to IDPH data released last Friday. The data show 5,063 new infections and 605 deaths among residents recorded during the week ending that day.
That surge has lifted the coronavirus death toll for nursing-home residents during the pandemic to 7,559 — 50.3% of total Illinois fatalities due to the coronavirus, according to a WBEZ analysis of IDPH data.
Donna Ginther of the Health Care Council of Illinois (HCCI), one of the industry groups, said in October that it would be a bad idea to levy fines against nursing homes when they are struggling to find people to work in the facilities during the pandemic. She also warned of bureaucratic complexity.
“It’s not an easy program that you’re going to flip the switch tomorrow and it’s going to be operational and workable 24 hours later,” Ginther said.
The 2019 law requires state regulators to gather Medicaid payroll and patient data submitted by each nursing home and calculate each quarter whether the facility met the staffing minimums.
Shaba Andrich, a leader of a Service Employees International Union branch that represents about 12,000 workers in Illinois nursing homes, said that system “is ready to go and shouldn’t require hiring more inspectors.” Andrich, an SEIU Healthcare vice-president, said past Illinois efforts to crack down on short-staffed nursing homes have depended too much on state inspections known as surveys.
“There weren’t enough inspectors and the industry would often have notice in some form that they would be up for a survey, and so they would staff up for that period,” Andrich said. “That’s why the law [for fines] is based on payroll data.”
An IDPH spokeswoman did not answer how many additional nursing-home inspectors the department needed for the staffing enforcement or when Gov. JB Pritzker’s administration would hire them.
Besides facing fines, the law requires each short-staffed nursing home to post notices about the violation at all public entrances as well as the main lobby, registration desk and website.
With the staffing enforcement on hold, Pritzker on Friday extended until Jan. 18 a program enabling long-term care facilities to operate with “temporary nursing assistants,” who are trained for 16 hours to supplement certified nursing assistants, who have completed 120 hours of training.
HCCI, the lobbying group, lauded the extension.
“The 1,700 temporary nursing assistants in Illinois nursing homes have provided essential care like bathing and feeding our seniors during this very challenging pandemic,” Pat Comstock, HCCI’s director of COVID-19 response, said in a statement.
HCCI, meanwhile, is pressing for the state to follow through on planned outreach and scholarships to attract community college students to nursing-home work.
An IDPH statement Friday said the planned funding for that program awaits federal approval.
The union says a more effective way to attract CNAs would be hiking their pay. Under an SEIU contract with about 100 Illinois nursing homes, the starting wage increases to $16 per hour in May. Despite the raise, new CNAs will earn just a dollar more than Chicago’s minimum wage, which increases to $15 in July.
Andrich, the union vice president, said the CNA starting pay should be at least $18 per hour. “These can’t continue to be low-wage poverty jobs,” he said.
SEIU and AARP have also argued that the state should link any further funding increases for nursing homes to transparency about their profits.
“Are you putting that money to the bedside, or are you taking that money and putting it in your pockets?” Andrich asked.
Nursing home chains have defended business structures that hide their profits, saying those structures are necessary to protect assets from lawsuits about issues including the quality of care in the facilities.
The Pritzker administration, meanwhile, says COVID-19 vaccination in Illinois nursing homes could begin next Monday.
Chip Mitchell is a criminal justice reporter. Follow him @ChipMitchell1.