AHCA’s Parkinson: Unfunded Federal Staffing Mandate Would Be ‘Lights Out’ For Nursing Homes Across The Country

The federal government provided relief to the nursing home industry in the form of a phased-in parity adjustment and a 2.7% pay bump, but a potentially enormous obstacle still stands in the way of the sector’s recovery.

While many industry leaders believe a federal staffing ratio is all but guaranteed, the Centers for Medicare & Medicaid Services (CMS) has remained tightlipped on what exactly that might look like.

An unfunded daily minimum standard of 4.1 hours would put essentially every nursing home building in the country out of compliance, American Health Care Association President and CEO Mark Parkinson warned.

“The single biggest thing that I’m worried about is an unfunded 4.1 mandate … if that occurs [it] would be lights out for multiple facilities across the country,” he said during a one-on-one interview with Skilled Nursing News.

More specifically, implementing a staffing minimum of 4.1 hours per resident day would require 94% of nursing homes to increase staffing levels just to be in compliance, according to data from accounting and consulting firm CliftonLarsonAllen in partnership with AHCA.

The only way a staffing ratio could work at this time, according to Parkinson, is by way of major flexibilities from the Biden administration.

CMS needs to take into consideration facilities that are making good faith efforts to be in compliance when the requirement goes into effect, and to closely watch when the labor market indicates slowed or no job growth. Parkinson suggested waiving the rule during those times.

The federal agency also needs to answer the “critical” question of whether or not the mandate is going to be paid for, according to Parkinson, as well as what workers count toward the minimum.

Only counting registered nurses (RNs), licensed practical nurses (LPNs) and certified nursing assistants (CNAs) toward the standard will make it very difficult for facilities to comply, he told SNN.

“So we’re encouraging the administration to look at all the people in the building, the social workers, the counselors, the activity directors, even people in dietary that are very important to the care of the residents, and make sure that they are counted as well,” he added.

‘There are very few wins out there’

In the meantime, as the sector anxiously awaits the results of CMS’s “multi-faceted approach” to its minimum staffing requirements, providers are now motivated more than ever to find creative solutions to recruiting and retaining staff.

Unfortunately, according to Parkinson, that has resulted in “very few wins.”

“I wish I had a list of items that I can tell you that have worked for people to find success in this area, but just really honestly nothing’s worked,” he said. “Wages have increased dramatically, benefits have increased, flexibility has increased and yet there continues to be just an unprecedented crisis with our workforce.”

The health care industry overall saw 70,000 more jobs added in the month of July, with nursing homes seeing an estimated 3,700 jump in new hires, according to Bureau of Labor Statistics (BLS) data.

While the nursing home employee count has ticked up modestly since the beginning of the year, the number is still nowhere close to what the industry saw 10 years ago – about 21% of the sector’s workforce has not returned.

In January 2012, nursing home staff count was approximately 1,666,800; that number plummeted to 1,346,600 in January 2022.

The slowed job recovery has made the idea of a proposed staffing minimum at this point in time even more challenging for providers to wrap their heads around.

“That’s our single biggest concern going forward is that the administration will impose a staffing requirement that, as much as we’d love to comply with it, we just can’t because the workers are not out there,” Parkinson said.

Some states that have implemented minimum staffing requirements have already had to make policy revisions given the current state of the labor market — and facilities not being able to comply.

The New York State Department of Health removed a $300 per day minimum penalty from its legislation if there is an “extraordinary circumstance.”

The law requires the state’s more than 600 nursing homes to provide 3.5 hours of care per resident per day.

A facility must show the state agency that it has tried to hire enough workers through increased wages and benefits “to the satisfaction of the department,” according to the revised regulations.

Nursing home Covid restriction changes could be coming soon

Another potential roadblock contributing to slower than expected job growth is the industry’s continued masking and testing requirements more than two years into the pandemic, Parkinson said.

He told SNN that providers across the country have struggled to recruit and retain staff in nursing homes when in many other workplaces such requirements are no longer in place.

While Covid continues to be an issue both in nursing homes and across the world, both the number of hospitalizations and deaths have declined dramatically, he said.

“So we feel like it’s time for [the Centers for Disease Control and Prevention] to adjust the requirements of PPE in nursing homes in what we think should be a really data driven way, which is to look at the mortalities and look at the hospitalizations and, when it’s low, to relax the requirements,” he added.

Earlier this month the CDC more broadly relaxed many of its Covid guidelines, including precautions related to quarantines and social distancing.

Parkinson said he expects the government agency to issue guidance and changes to the current requirements for nursing homes “pretty soon.”

Focusing on the medium-and long-term

Looking ahead, Parkinson wonders what the future may hold as the industry has been forced to focus on the “here and now” as a result of the pandemic and other sector-wide challenges.

Meanwhile the market and demographics continue to point to a significantly greater need for long-term care in the not so distant future.

“I’m hoping that we’re getting to a point where we can transition away from just worrying about sheer survival, to really planning and getting ready for the future,” he said.

Still, he believes there are some “incredibly exciting” things out there for the nursing home industry to take advantage of, one of which being population health management and the role SNFs can play.

Parkinson pointed to initiatives like the Program of All-Inclusive Care for the Elderly (PACE) and Institutional Special Needs Plans (I-SNPs) as ways some facilities have managed the health of residents in their buildings — achieving good clinical results for patients and financial savings for the government.

“I continue to believe that population health management is the key to survival and for the sector to prosper … I’m hoping that we’re reaching a time with the pandemic where we can pivot away from just thinking about survival and really starting to embrace opportunities that I think are out there,” he said.