Putting the brakes on CMS proposed minimum staffing for nursing facilities – Herb Weiss

By Herb Weiss, contributing writer on aging issue

In response to the Centers for Medicare and Medicaid Services (CMS) recent release of proposed rule to establish minimum federal staffing requirements, last week 97 members of Congress, mostly Republican, called on Health and Human Services (HHS) Secretary Xavier Becerra to put the breaks on CMS’s proposed rule issued on Sept. 1, 2023.

In September, CMS issued a proposed rule establishing minimum staffing requirements and standards for nursing facilities. But the proposed CMS rule notes that according to the Bureau of Labor Statistics, “there are roughly 235,900 fewer health care staff working in nursing facilities and other long-term care facilities compared to March of 2020.”  Furthermore, the proposed CMS rule notes that nursing facilities around the country would need to hire nearly 13,000 registered nurses and 76,000 nursing assistants. Safety thresholds could increase a modest 1% while costing between $1.5 to $6.8 billion to fully implement. Noncompliance with CMS’ proposed minimum staffing requirements would lead to citations for noncompliance with Medicare Conditions of Participation, potentially resulting in a variety of enforcement actions, including imposition of Civil Monetary Penalties, denial of payments for new admissions, and even termination from the Medicare program.

Congressional call to CMS to reconsider minimum staffing rule

Congressman Greg Pence (R-IN), along House colleagues Brett Guthrie (R-KY), Vern Buchanan (R-FL), Michelle Fischbach (R-MN), Jared Golden (D-ME), and Chris Pappas (D-NH), along with 91 of their Republican colleagues sent a bipartisan letter to Department of Health and Human Services (HHS) Secretary Xavier Becerra, opposing minimum federal staffing requirements.

In this Oct. 20 letter, they charge that CMS’s rule would inevitably result in limited access to care for seniors, mandatory increases in state Medicaid budgets, and most consequentially lead to widespread nursing facility closures. they urge the Secretary to reconsider the proposal to impose new federal staffing requirements on nursing facilities which would adversely hurt their ability to serve existing and prospective residents.

In the letter, the lawmakers expressed their concerns with CMS proposed rule issued at the direction of the Biden White House. This rule would establish minimum staffing requirements and standards for nursing facilities, which they warned would inevitably result in limited access to care for seniors, mandatory increases in state Medicaid budgets, and most consequentially lead to widespread nursing home closures.

“At a time when nursing homes are already experiencing healthcare worker shortages and financial hardships, CMS and the Biden Administration should not be implementing a regulation that would only exacerbate this issue. If implemented, facilities throughout the country will have no choice but to deny access to our nation’s seniors who need nursing home care, especially in rural communities, like many of the ones I represent in Indiana’s sixth congressional district,” said Congressman Pence. “This one-size-fits-all regulatory requirement will result in many negative consequences, and I strongly urge Secretary Becerra to reconsider this proposal,” he said.

“There are workforce shortages all across rural America and healthcare workers are no exception. I’m committed to working with my colleagues to find ways to prevent otherwise avoidable closures of nursing homes in Maine,” said Congressman Golden.

Nonprofit provider group calls on Congress to stop CMS proposed rule

The Washington, DC-based LeadingAge, representing more than 5,000 nonprofit aging services providers, gave the thumb up to House lawmakers who are attempting to delay CMS’s proposed rule until there are enough qualified applicants and adequate funding to address staffing levels realistically throughout the long-term care continuum.

“We all want to ensure access to quality care for older adults, but federal leaders are getting it wrong right now,” said Katie Smith Sloan, president and CEO, Leading Age, the association of nonprofit providers of aging services, including nursing homes. “CMS’s proposed nursing home staffing mandate rule works against that shared goal, and would limit older adults’ and families’ access to care,” she said.

In a letter sent to Congressional leaders on Sept. 28, 2023 addressing the Centers for Medicare and Medicaid Services (CMS) September 1 proposed rule on nursing home staffing mandates, Sloan urged policymakers to focus on advancing real solutions to ensure quality nursing home care for older adults and families across America. 

Sloan’s letter lays out three main reasons why the proposed rule will be impossible to implement.  She notes that no federal funding has been allocated to cover the $7.1 billion price tag of CMS’s proposed regulation.  She warns that the mandate would require the hiring of 90,000 more workers, and there are simply not enough people to hire.  Finally, the mandating staffing requirements could decrease access to care across the continuum of care, says the top aging services executive.

The letter asks Congress to intervene to delay the proposed rule until there are enough qualified applicants and adequate funding to address staffing levels. Sloan provides her association’s independent cost analysis of the proposed rule, which projects implementation would be at least $7.1 billion—far higher implementation than CMS estimates.

“The costs of delivering quality care already far exceed Medicaid reimbursement levels, and this unfunded mandate will force nursing homes to consider limiting admissions or even closing their doors for good, depriving older adults and their families of care in their communities,” states the letter, noting that “the outcome is the opposite of what providers, lawmakers, the administration and the American people want.”

According to Sloan, nursing facilities aren’t the only part of the healthcare system that will be affected if the rule is implemented as proposed. Home health providers are already rejecting referrals and some face closure due to financial pressures and workforce shortages. There will be far fewer options for older adults and families to access care, and communities of color and less affluent individuals will feel the deepest impact, she says. 

“The current and highly fragmented approach to long-term care financing no longer serves the millions of older adults who require compassionate and highly skilled care,” writes Sloan, calling on Congress to work with the Administration on realistic solutions, including a “robust national workforce development strategy.” 

LeadingAge has put forward solutions to tackle the aging services workforce crisis including prioritizing immigration reform to help build the pipeline of workers; increasing funding and working with states to increase Medicaid reimbursement rates to cover the cost of care and increase wages; along with replicating existing successful training programs and expand opportunities for interested applicants to pursue careers as RNs, LPNs, and CNAs. 

“We need a holistic approach to real solutions to the workforce crisis. Let’s get this right,” said Sloan.

A Rhode Island perspective

“Unfortunately, a staffing ratio mandate, whether state or federal, is a blunt enforcement instrument that does not consider the numerous challenges facing providers, including Medicaid underfunding, lack of workforce, and the diversity of nursing homes and their resident needs,” says James Nyberg, president, and CEO of LeadingAge Rhode Island. “Moreover, the concept of imposing severe financial penalties for homes that are unable to meet a staffing ratio is counterproductive at best by siphoning off scarce resources that providers need as they seek to address their workforce needs and resident care needs,” he says. 

“We in Rhode Island can attest that there are numerous unintended consequences of a staffing ratio mandate, including the severity of fines, how compliance is measured and calculated, costs of compliance (or trying), backlogs of people in hospitals waiting for skilled nursing care, and other access-related issues, says Nyberg, noting that even homes that are currently able to comply with the staffing ratio are doing so at an unsustainable cost. 

According to Nyberg, a staffing ratio mandate without an adequate workforce supply, as well as financial resources, poses an existential threat to the industry. LeadingAge Rhode Island is working with state officials and other stakeholders to revisit some of the more onerous provisions of our mandate, mitigate its effects, and pursue other less punitive approaches to meeting collective goal of ensuring adequate staffing and quality of care while also working on various initiatives to develop a pipeline of workers, which will quite simply take time. 

For a copy of the Oct. 20 correspondence sent to HHS Secretary Xavier Becerra urging her to reconsider establishing minimum staffing in nursing facilities, go to https://drive.google.com/file/d/1RzhXgF2OQR-cbz8fA5I4yE0DWYn8fDJM/view.

To read LeadingAge’s Sept. 28 correspondence to Congress, go to https://leadingage.org/wp-content/uploads/2023/09/LeadingAge-Staffing-Mandate-Analysis-Congressional-Letter-9-28-2023.pdf.

For a copy of a CMS Fact Sheet on CMS’s proposed rules on minimum staffing, go to https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-minimum-staffing-standards-long-term-care-facilities-and-medicaid

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Herb Weiss, LRI -12, is a Pawtucket-based writer who has covered aging, health care and medical issues for over 43 years.  To purchase his books, Taking Charge: Collected Stories on Aging Boldly and a sequel, compiling weekly published articles, go to herbweiss.com.