AHCA’s Parkinson: ‘Unfunded’ Build Back Better Act Staffing Provisions Will Exacerbate Workforce Shortage

The head of the nation’s largest lobbying and trade group for nursing homes called out two ‘unfunded mandates’ included in the Biden administration’s Build Back Better Act — mandatory minimum staffing and 24-hour registered nurse (RN) oversight in nursing homes — arguing both will cause unnecessary strain on an already employee beleaguered industry.

During a press conference on Wednesday, AHCA CEO and President Mark Parkinson predicted operators will need to add 150,000 direct care workers to meet hourly requirements, and at least 21,000 additional RNs to adequately provide around-the-clock care.

That’s on top of 220,000, or 14% of the skilled nursing workforce lost during the pandemic, according to recent data from the Bureau of Labor Statistics.

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The Build Back Better Act (HR 5376), which broadly aims to expand the social safety net for millions of Americans, passed 220-213 in the House as of Friday morning.

Language in the bill specifies for minimum staffing that the Secretary of the Department of Health and Human Services (HHS) perform a study to determine an ideal level of staffing, and then implement that level within one year.

“Independent researchers” have analyzed what percentage or number of hours would be ideal for minimum staffing ahead of the federal study, Parkinson said during the call; researchers anticipate the study will find facilities need an excess of four hours, or 25% more staffing.

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“We think a reasonable expectation would be in the range of 25%, which would call for us to have a need for over 150,000 workers which just aren’t out there,” added Parkinson.

The other provision specific to RNs requires skilled nursing facilities to have a registered nurse on staff at all times, beginning Oct. 1, 2024.

Neither mandate outlines federal funding to support the additional staff, Parkinson said, adding the organization is generally in favor of provisions to bolster staffing, but not without federal monetary support.

“All of this demonstrates what happens when bills are passed without regular order, without hearings, without discussion, without deliberation, without collaboration. You end up with things that sound good but in fact have unintended consequence,” said Parkinson. “The consequence here is that the skilled nursing sector simply would not be allowed to continue.”

AHCA/NCAL’s Care for Our Seniors Act dropped a minimum staffing provision once the organization realized adequate numbers “just weren’t out there,” noted Parkinson.

Fellow aging services advocacy group LeadingAge appeared to be in favor of BBB overall, calling the legislation a “major step forward” for residents to get affordable housing, home health and other health care services they need.

“Support for home and community-based services and affordable senior housing programs in the Build Back Better legislation can fundamentally transform how people grow old in this country.,” LeadingAge President and CEO Katie Smith Sloan said in a statement on Friday. “These are critically needed resources—especially investments in workforce—that will immediately help alleviate current shortages and scarcity across aging services.”

Even without the provisions in place, operators have had to scale back admissions, close down wings or in some isolated cases, close a facility altogether, Parkinson said.

Facilities have been more selective with potential residents based on what they feel that can adequately handle due to current staffing levels, Leonard Russ, principal partner and administrator of New Rochelle, N.Y.-based Bayberry Care Center, said during the call.

“If we see that they require a lot of hands-on frontline care, if they come in with heavy treatments, or complicated behavioral issues or additional kinds of life support mechanical devices, we just can’t handle it without a confidence that we can staff consistently at the level that we think is necessary to deliver that level of care,” Russ said.

Two key ingredients are missing to successfully implement staffing mandates: “actual bodies out there to recruit,” Russ said, and the funding necessary to bear the cost.

Phil Fogg, president and CEO of operator Marquis Companies, said Marquis’ open RN positions spiked 200% between August of last year and this month, despite “massive resources” thrown at wage scale, sign-on bonuses, retention bonuses and temporary staffing agencies.

Fogg noted 24% inflation just between 2020 and 2021 in skilled nursing workforce pay for Marquis facilities, with staffing agencies driving cost in the system.

“We’re seeing 30% to 40% premiums on what we would pay to our own workforce,” added Fogg of staffing agencies. “No matter what we do, if we raise our rates, they’re going to raise their rates higher. They’re not constrained by Medicaid, Medicare, Medicare Advantage payments at all. They can just charge whatever the market will bear and in these desperate supply and demand times, they’re taking full advantage of it.”

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