LPN Exclusion in CMS Staffing Mandate a ‘Convoluted Mess’ for Nursing Homes

The skilled nursing industry is at a crossroads as it grapples with the Centers for Medicare & Medicaid Services’ (CMS) proposed federal staffing mandate. A significant point of contention in the proposal is the exclusion of licensed practical nurses (LPNs), which has ignited concerns and garnered strong reactions from industry leaders.

“What’s keeping me up right now is the policy nightmare,” Mark Parkinson, CEO and president of the American Health Care Association/National Center for Assisted Living (AHCA/NCAL) said at the organization’s recent Annual Convention and Expo in Denver. “The proposed staffing rule is an overreaction — a poor reaction to a horrible crisis that we all experienced.”

Parkinson is not alone in his concern. Operator executives such as Diversicare CEO Steve Nee, Accura HealthCare CEO Ted LeNeave, Evangelical Lutheran Good Samaritan Society CEO Nate Schema and Carespring CEO Chris Chirumbolo also have spoken out against the exclusion of LPNs.

And Dr. David Grabowski, a professor of health care policy at Harvard Medical School, warned that if the proposed rule becomes final, the LPN role in many nursing homes may disappear.

The proposed mandate calls for Medicare- and Medicaid-certified nursing homes to provide a minimum of 0.55 hours of care from registered nurse per resident per day and 2.45 hours of care from a nurse aide per resident per day, with non-rural nursing homes having 3 years and rural nursing homes having 5 years to meet these standards.

As facilities try to meet the minimum RN requirements and staff the remaining positions with CNAs, the shift could lead to a significant decline in licensed practical nursing staff in nursing homes, Grabowski told Skilled Nursing News.

In theory, nursing homes could meet the 0.55 RN threshold and then staff the remaining positions with CNAs, he said.

“Currently, the average nursing home employs 0.89 LPN hours per resident day (HPRD) and 0.26 RN HPRD,” he said. “Thus, we may see a large decline in licensed staff from 1.15 (RNs plus LPNs) to 0.55 (RNs) under the proposed rule.”

Grabowski acknowledged that while the CMS-commissioned report from Abt Associates did not show an association between LPNs and quality of care, other research has found that LPNs are essential for delivering high-quality care. He emphasized the importance of having sufficient numbers of RNs, LPNs, and CNAs to provide high-quality nursing home care.

Moreover, some states are already implementing their own staffing mandates that include LPNs, and these might conflict with those proposed in the federal staffing mandate.

“This proposed rule is going to be a huge challenge for states with mandates that allow the use of LPNs,” Grabowski said. For example, he noted that Massachusetts has a state staffing mandate of 3.58 hours per resident day, which is “far above” the new proposed federal rule of 3.00 hours per resident day. However, the Massachusetts rule allows the use of LPNs.

“As a result, in spite of the higher overall standard, only 13% of Massachusetts nursing homes are currently in compliance with the proposed federal rule of 0.55 RN and 2.45 CNA hours per resident day,” he said.

A personal issue

The exclusion of LPNs from the CMS proposal not only has the potential to create an operational morass for providers, but is hitting operators in a deeply personal way. That makes the LPN exclusion not just a policy matter up for a debate, but a hot-button issue that threatens morale and could deepen distrust between providers and regulators.

“This is near and dear to my heart, because my mom was a nurse in a nursing home, she was an LPN,” Diversicare’s Nee told SNN. “The rule completely ignores our LPN team members, and everyone that’s in the business knows how crucial a role they play every day.”

Calling the CMS proposal “disrespectful” to LPNs, Accura’s LeNeave cited the example of an LPN who sits on the company’s leadership team. She is an “amazing nurse with tons of experience,” who has literally saved lives, he said — and she penned a letter to CMS to provide feedback on the proposal. Her passion, anger and frustration came through in the letter, leading her to think twice about whether it was appropriate to send.

“I told her, this is your letter. It’s not mine,” LeNeave told SNN. “I know that you’re representing Accura Healthcare … I would sleep on it, [but] I have no problems sending it just the way it is. Because it’s your story. It’s your career. You’ve been the one that’s been disrespected.”

Calling LPNs “the backbone of the industry,” Carespring’s Chirumbolo also urged LPNs to make their voices heard on this issue. And he took issue with one potential argument in favor of excluding LPNs, which is that nursing homes might be hiring LPNs in place of RNs to save money.

This argument is “flawed,” because in many parts of the country, hiring LPNs is just as hard as hiring RNs, he said.

The advocacy on this issue does need to be strategic, Chirumbolo noted, given the possibility that CMS might raise the overall hours of care required under the mandate if the agency allows LPNs to be included.

The Good Samaritan Society’s Schema also raised this point, characterizing the LPN exclusion as “insulting” and arguing that they should be included alongside RNs in meeting the 0.55 hour per day threshold.

“We really believe that LPNs and RNs need to be included as a part of an entire licensed nurse category,” he said. “We need to have the flexibility as providers to ensure that people are working at the top of their scope of license, but I also think it gives providers the flexibility they need, given the landscape and workforce availability that exists today.”

LeNeave philosophically is not opposed to increasing the hours-per-day requirement if LPNs are included, but from a practical standpoint, he said, “The staff’s not there.”

Overall, the emotional toll of the proposed mandate is a burden on nursing home workers who still are trying to recover from the trauma inflicted by the Covid-19 pandemic, provider executives said.

“There’s a lot of anger, a lot of frustration, a lot of hurt, a lot of ‘We don’t understand,’” LeNeave said.

New York’s complex staffing landscape

Steven Hanse, president and CEO of the New York State Health Facilities Association (NYSHFA), argued that CMS is disregarding a substantial portion of the workforce by failing to recognize the vital role LPNs play in the care of residents.

Hanse highlighted the unique situation in New York, where the state mandates a staffing ratio of 3.5 hours per resident day, inclusive of LPNs.

“It is 2.2 hours with CNAs and LPNs and 1.1 with RN, and then the delta – the extra two – can be made up either way,” he told SNN.

New York’s staffing law and the federal proposed rule intersect, but the stricter requirement will take precedence, Hanse explained. This means that even if the federal mandate were to pass as proposed, New York providers would still be bound by the state’s requirements, including the inclusion of LPNs. This would result in New York’s staffing ratios exceeding the 3.5-hour threshold.

“In New York, we are experiencing a severe long-term care workforce crisis. So you can put in place all the mandates you want,” he said, adding, “[But] if the workers aren’t there, they can’t achieve that. Moreover, to issue this mandate without any funding is an impossibility.”

Hanse said the CMS mandate lacks proper funding, making it nearly impossible for facilities to comply. Without adequate financial support, the mandate is impractical and unjust, particularly considering that 76% of nursing home residents in New York are funded through Medicaid, he said. Also, other services and support workers, who provide direct care, should be counted too towards the minimum staffing requirements.

“And those include physical therapists, occupational therapists, respiratory therapists, those are direct care … employees whose jobs are critical to the health and well being of our residents,” he said. “So among other things,first and foremost, we need the mandate to be funded, and second, [it needs] to reflect the workers who are providing direct care beyond just CNAs and RNs.”

Pennsylvania’s perspective

Zach Shamberg, president & CEO of the Pennsylvania Health Care Association, echoed the concerns voiced by Hanse. Shamberg expressed his disappointment with CMS’ decision to exclude LPNs and other essential caregivers in the proposed mandate. He emphasized that the exclusion undermines the role of LPNs, who have undergone clinical training to enhance their skills.

“It’s really a slap in the face to diminish the role of 12,000 LPNs across Pennsylvania who have trained to advance their clinical level and understanding, only to have CMS tell them that LPN/LVN hours per resident day, at any level, do not have any association with safety and quality of care,” he told SNN.

“It is unclear as to why CMS does not value LPNs,” Shamberg said. After all, Pennsylvania regulators felt so strongly that LPNs do, in fact, have an impact on the safety and quality of care that the state mandated a staffing ratio for that position, he argued.

That said, Shamberg said the difference may have to do with LPNs in Pennsylvania having greater clout, noting, “When you zoom out at a national level, not every state has unionized LPNs like we do here in Pennsylvania.”

The exclusion of LPNs in the proposed CMS staffing mandate will create a huge problem for Pennsylvania providers, and the proposed mandate undermines all the work operators have already done to increase the state’s HPRD to an attainable staffing level during a time of workforce limitations, Shamberg said.

“Now, with the CMS proposed regulation, Pennsylvania providers will have to meet two differing –– and in some ways conflicting –– regulations,” he said. “This will create an unattainable mandate and convoluted mess for providers who, once again, will be stuck trying to foot the bill for costly mandates. In the end, the problem will be less access to care.”

Tim Mullaney contributed reporting to this article.