While nearly 21% of nursing homes across the country have developed nurse aide training programs to combat workforce shortages, civil monetary policy rules have severely hindered efforts to rebuild the workforce.
Such training programs are revoked for two years, or cannot be initiated, if a SNF has been issued a CMP in excess of $11,995, according to an infographic published by the American Health Care Association (AHCA).
“I’ve never met a policymaker who thinks that’s a good idea,” said Brent Willett, president and CEO for the Iowa Health Care Association. “It seems like a completely arbitrary and counterproductive policy [and] doesn’t make any sense to us. We think it’s bad policy.”
Aligning penalties with reducing access to training, Willett added, is counterproductive. The sector has been for years calling on Congress and CMS to review the policy. There’s “room for improvement” when it comes to ensuring resources match what providers need to provide better quality of care, he said.
The industry is still facing a major workforce crisis, added Willett, and a facility facing a civil monetary penalty likely would benefit more from access to training programs.
A bipartisan and bicameral bill called the Ensuring Seniors’ Access to Quality Care Act was in May reintroduced in Congress, but no movement has been made on it yet.
CMS changes appeal process
The Centers for Medicare & Medicaid Services (CMS) updated the appeals process for citations and CMPs in its 2024 SNF final rule, streamlining a constructive waiver timeline to ease administrative burdens for CMS related to processing Civil Monetary Penalty (CMP) appeals.
Prior to the change, operators needed to send a letter within 60 days of receiving a CMS deposition if they wanted to waive the right to an appeal and receive a 35% reduction to the fine.
If a waiver letter was missed – such as it is possible given the high turnover – the fallout was sometimes significant, operators said in previous reports from Skilled Nursing News. This was especially true if the operator had no intention of appealing the civil monetary penalty.
In the past, if a letter to “waive and pay” a reduced fine wasn’t submitted in a timely manner, an operator would get stuck paying the entire fine they had no intention of appealing anyway.
It takes one more paperwork burden off the shoulders of providers because a letter only needs to be sent in case of an appeal. For CMS, the change allows agency workers to shift resources toward bolstering oversight and enforcement activities, including providing additional focus on nursing home compliance, according to the rule.
Still, CMS said that it would be reviewing the appropriateness of the 35% reduction policy in future, including the percentage reduction amount.
Citation trends depend on the state
Lisa Chubb with Brickyard Healthcare in Indiana said the state has been very good at actually going through with the appeals process through CMS.
“That helped us immensely when it came to ensuring that we could still go ahead and have those CNA classes in a lot of our locations that we’re seeing a fine associated with the infection control citation during the pandemic,” Chubb told Skilled Nursing News.
And, Brickyard has seen a “significant drop” in citations that would have led to civil monetary penalties, Chubb said, referring to the F-880 tags for repeated infection control citations.
“[CMS] essentially walked that back a little bit now that the pandemic is over and the current civil monetary penalty process does align with the higher scope and severity citation more closely,” she said.
There has been an increase in recruitment and retention, she added, but it’s unclear if this is related to a post-pandemic world or if the change in CMP citations played a role.
“We’ve had people reaching out. We’re just not turning over leaders like we were, we’re not turning over home office folks – we haven’t in quite some time,” said Chubb. “I think it’s telling that we’re more of a sought after organization. I’m not sure if it’s related to a lot of the change in the regulatory process, or what we’re doing here at Brickyard.”
Iowa, on the other hand, has seen the frequency of citations increase between 2021 and 2022. The state was in the top six or seven with the highest level of increase in citation issuance, Willett said.
That “certainly raises the spectacle of CMPs” exceeding $12,000, triggering a prohibition on training.
CMP-related legislation
The legislation would allow nursing facilities to resume in-house education programs if the cited deficiency was corrected for which the CMP was assessed, and if the deficiency did not result in immediate risk to patient safety – or resident harm from abuse or neglect.
Qualified facilities must not have received a repeat deficiency related to direct harm in the preceding two-year period, according to bill text and policy supporter, AHCA.
The bill would also give Medicare and Medicaid providers access to the National Practitioner Data Bank to conduct background checks on candidates; CMS would still have the discretion to revoke or reinstate training programs through the regulatory process.
“These SNF-based training programs offer valuable, and much needed, workforce development programs in community health care settings, and many CNAs go on to become nurses (LPNs or RNs) or SNF administrators,” AHCA said in a statement.
The bill is sponsored by Sens. Mark Warner (D-VA) and Tim Scott ( R-SC), along with Reps. Gerry Connolly (D-VA-11) and Ron Estes (R-KS-04).
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