CMS Flooded With Staggering 40K-Plus Comments on Nursing Home Staffing Mandate

More than two months after the Centers for Medicare & Medicaid Services (CMS) announced its minimum staffing proposal for the skilled nursing industry, commentary from stakeholders came to a close Monday with a staggering 40,000-plus comments received.

Reviewing the hefty load of comments on the proposal may take as long as a year, according to industry leaders. And encouraged by the size of the comments, advocacy groups are already eyeing the next phase of countering the stipulations contained in the staffing mandate and planning to work with Congress, LeadingAge CEO Katie Smith Sloan said in a meeting with editors from Skilled Nursing News.

“There’s been some organic interest in Congress and putting pressure on CMS. I think we’re going to continue to try to mobilize that and see if we can expand that pressure,” said Smith Sloan, referring to numerous letters sent to CMS by members of Congress in the last month.

While many commenters said they approved of having a minimum staffing proposal, a lack of funding and fixation on certain roles in the current iteration may close nursing homes, they also said. And, operators will need to limit admissions further to adhere to a minimum staffing requirement, resulting in access tightening for facilities that do manage to stay open.

As it stands, the proposed rule 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 have 5 years to meet these standards.

Major contentious aspects of the proposal include the absence of licensed practical nurses (LPNs), inadequate commensurate funding at $75 million, and a requirement to have an RN on staff 24/7.

And operators attending LeadingAge’s annual conference in Chicago told SNN that some of the stipulations in the staffing proposal stem from wrongly held beliefs about the industry — and not evidence.

“I think it actually is coming from a much well-intentioned direction. The big issue I have with it is that there’s an assumption – that I believe generally is held publicly – that nursing homes want to staff at low standards,” said Deke Cateau, CEO of Georgia nonprofit SNF provider A.G. Rhodes. “I’ve been in this industry for well over 20 years … I’ve never met an owner that does not want more staffing.”

The reality is that there isn’t enough staff, he said.

There are counties in Nebraska alone that have zero registered nurses, Cateau was told. “Any rational person” would be able to see that the space is facing an economic supply-demand issue, he said, and that the supply simply isn’t there.

Larry Gumina, president and CEO of Ohio Senior Living, said the burden on taxpayers to sustain the nursing home industry is and will be “horrific,” as those in the space grapple with a minimum staffing proposal set to cost $6.8 billion per year.

“I understand the administration’s intent to strengthen quality, but this is just a step in the wrong direction,” said Gumina.

Comments on access, care quality and financial sustainability

The second issue many providers take with the staffing mandate, including A.G. Rhodes, delves into access concerns as well the exclusion of licensed practical nurses (LPNs). For the Georgia operator, this is best explained through the needs of its dementia population.

Proper dementia care, Cateau said, does not point us in the pharmacological direction.

“Medications are not helping. What we need is more care and care closest to the resident. The mandate’s focus on registered nursing care, from that perspective, does not make much sense to me,” said Cateau. “Most of our population will need care closer to them, which means CNA and LPN care – yet the mandate strongly focuses on the registered nurse component.”

Mark Jacobs, an AHCA member from Maine and nursing home administrator since 1988, said his current facility, Maine Veterans’ Home Scarborough, has a dementia unit serving veterans, spouses and Gold Star parents, which has always had staffing problems that will get worse.

It was a “great challenge” during and post-pandemic to find appropriate staffing for the dementia unit, with 64 different contract agency workers supplementing its staff to provide care while the unit continues to recruit new employees, he said.

“As a non-profit with some additional funding sources, we have been able to stay open – many other facilities in our state have closed due to financial constraints,” Jacobs said in his letter. “While my current facility has RNs 24/7, every one of my prior facilities did not consistently, even though it was always my goal to do so. There aren’t enough RNs to do this in many parts of the country.”

Jacobs said it’s unsustainable to spend up to $75 per hour for a CNA. In July, nursing raises resulted in some CNAs getting $5 or more above some managers, he added.

From a rural access perspective, Jacobs said a lot of Maine’s facilities, which have 60 or fewer beds, “are the foundation of their small communities.”

“Town after town has lost their nursing facility to bankruptcy. This unfunded mandate will drive more facilities out of business,” he said.

Associations drum up flurry of comments

The largest advocates from every part of the industry weighed in on the proposal, and some organizations like the American Health Care Association even launched a campaign to get as many of its members as possible to talk about how the proposal will affect them – and how many star ratings they have to show these are quality properties with a good track record.

As of Oct. 31, AHCA/NCAL members alone submitted 14,000 comments to CMS.

The association submitted its final comments on Nov. 6, formally requesting that CMS rescind the unfunded mandate. Implementing the proposal as it stands would threaten the displacement of nearly 300,000 nursing home residents, the association said in its comment.

“If CMS proceeds with this proposed rule, it will severely limit access to care for our nation’s seniors and individuals with disabilities. Without a pipeline of new caregivers and resources to recruit, nursing homes will be forced to downsize in order to meet these requirements or close entirely,” AHCA/NCAL President and CEO Mark Parkinson said in the association’s letter to CMS.

Fellow advocacy group, LeadingAge, set the stage with some statistics from the Bureau of Labor Statistics on the staffing shortage in its letter to CMS.

About 90,000 nurses will be needed to meet the demands of the staffing proposal, according to CMS’s own estimates, while the bureau of labor statistics (BLS) expects 193,100 registered nurse (RN) openings each year for the next decade, even as the workforce is only expected to add 177,400 positions within this same time period, the advocacy group for nonprofits noted.

Only 9.28% of this batch of RNs are expected to go into long-term care. “The math is not looking good for nursing homes to fill these new positions,” Jodi Eyigor, LeadingAge’s director for nursing home quality and policy, said in the letter to CMS.

What’s more, nursing schools actually turned away more than 91,000 qualified applicants for the 2021-2022 school year due to a lack of educators, she said.

LeadingAge also touched upon the $75 million reserved for workforce development, what Eyigor calls “paltry” and a “drop in the bucket” especially considering it is also expected to boost surveyor workforce. This funding pool is drawn from the federal Civil Money Penalty (CMP) Reinvestment Program.

“In other words, nursing homes that are struggling to support higher wages and expanded staff will be paying to train the surveyors that will enforce CMPs against them for their inability to meet the standards, while no additional funding has been put forward to actually recruit and retain staff,” Eyigor said in the letter. “CMS has stated that they ‘welcome’ states who wish to discuss increasing Medicaid payment rates but we urge CMS to take greater responsibility and show the federal leadership necessary to make it happen.”

Coupled with the letter, Smith Sloan in a statement said the proposal will fail because it doesn’t consider two major issues: the ongoing workforce crisis and “astronomical” implementation costs.

“Should CMS opt to implement it as is, older adults and families’ already limited access to care will only get worse,” said Smith Sloan. She urged CMS to take greater responsibility and be part of the solution.

Comparing state mandates to federal proposal

State-specific health care associations submitted their own letters to the CMS Administrator as well, including the Pennsylvania Health Care Association. The state essentially has already “done the work” so to speak, with general nursing care per resident per day increasing from 2.7 hours to 3.2 hours effective July 1 2023. It’s a glimpse into what will work and what won’t, on a smaller scale.

PHCA, local unions and elected officials worked together to arrive at the increase.

Staffing ratios for RNs, LPNs and CNAs will increase incrementally over a 2-year period, said Shamberg, and – crucially – will be met with commensurate Medicaid funding for the first year.

“The second phase (year 2) has yet to receive matching funds. Pennsylvania providers are already operating at -12% margins and must somehow pay for more staff – and higher wages – to meet our new state standards,” said Shamberg. “But if our own state governments are unwilling to fund the mandates their own regulatory bodies put into place, is there any chance they’ll fund a CMS mandate the federal government refuses to pay for?”

So far, PA nursing homes have been able to meet and in some cases exceed the state mandate, but certain positions are proving more difficult to fill than others, Shamberg said.

“The availability of qualified workers for each position varies greatly from community to community –– and, in some areas, those qualified workers simply don’t exist. This is exacerbated further by staff call-offs, no-shows, and the growing dependence on unreliable and costly agency staff,” he noted.