Nursing homes could receive a hardship exemption for the minimum staffing proposal – but the devil is in the details here – and looks like qualifying for it is going to be tough.
Facilities will need to meet four criteria for an exemption, but it’s unclear how operators will prove some aspects of the criteria to the Centers for Medicare & Medicaid Services (CMS), according to Leah Klusch, executive director for the Alliance Training Center.
The four exemption criteria are: proving workforce is unavailable (or the facility is at least 20 miles from another long-term care facility); the facility is making a good faith effort to hire and retain staff; the facility provides documentation of its financial commitment to staffing; and, the facility has not failed to submit PBJ data.
Operators would need to meet all four criteria to qualify.
“I don’t know how you prove some of this to CMS,” said Klusch. Take the second criteria, for example. “Are you making a good faith effort to hire and retain staff? That’s a very big area. I just think that’s very simply stated, but it’s a very complicated thing to prove,” she said, adding, “It’s rather poorly conceived. The metrics are not there.”
In other words, it’s a “boiler plate review” that doesn’t have good definitions, she added.
To be fair, CMS in the proposal asked for feedback on how to shape the hardship exemption criteria, including any additional data sources CMS can use to verify facility hardships, along with other criteria the agency should consider.
To that, Klusch said there is already a lot of census data, along with private research, that delves into professional shortage areas in the country.
“The schools of nursing, the medical schools, and other health related training programs use that data a lot because they’ll give people scholarships if they stay in practice in an area for three years or five years,” said Klusch. “That’s all pretty well established.”
Industry associations like LeadingAge and the American Health Care Association/National Center for Assisted Living (AHCA/NCAL) don’t support the waiver and exemption processes as proposed.
“A revised process should allow nursing homes to request waivers and exemptions, with the resulting survey of nursing services to ensure the safety and wellbeing of residents, without being forced to wait out the traditional citation and enforcement process. Based on these concerns, LeadingAge urges CMS to reevaluate exemption criteria,” the association said in its formal comment to the agency.
AHCA/NCAL considers the hardship exemption a misnomer, and considers the process as punitive, unattainable, cumbersome and not user-friendly.
“It lacks real-world understanding of how nursing homes operate and the communities in which they exist. For instance, there is no discernable flexibility in geographic and socioeconomic distinctions between communities, lack of timely and accessible data, and more,” the association said in a statement to Skilled Nursing News.
Without a viable path for facilities making a good faith effort to meet requirements, some may head toward the only direction possible — closure, according to AHCA/NCAL.
A new department to assess exemptions
Assessing whether facilities meet the hardship criteria could result in a whole new department dedicated to it, or at least one dedicated staff member to focus on getting these exemptions in place, Klusch said. It could be a whole new practice area for corporate compliance staff.
“You probably have to have somebody who is very, very, very trained in order to actually send this in. This doesn’t look like something the average administrator would be able to complete in 20 minutes,” she said.
The notion is very similar to what had to be done to meet compliance standards for Medicare Advantage.
A facility will also need to have had 12 months of surveys that don’t include a harm level citation related to insufficient staff, and special focus facilities would not be exempt either, according to proposal text.
“They have to have been performing either at less than a harm level for anything that’s cited, or that harm level has to exist without insufficient staff being part of it,” said Sara Deiter, vice president of consulting services with HDG. “Beyond that, it’s really a matter of whether or not you’ve made a sufficient effort to be exempted.”
A facility would also need to be in an area that CMS designated as 20% below the provider-to-workforce ratio, said Deiter, adding that this is an important element. This folds into the first exemption criteria, proving that workforce is unavailable.
Tim Fields, CEO for Ignite Medical Resorts, believes the waivers were likely put in place with rural operators in mind. CMS has made it near impossible for urban and suburban operators to get an exemption, he said.
“It’s going to be rather hard to establish that you can meet the hardship, right? You need to have statistics from the Bureau of Labor. You need to make sure that the distance that you’re with other facilities is involved,” added Ignite’s Chief Culture Officer Jim White. “At the end of the day, my understanding is that you have to hit every aspect of hardship exemption to be able to qualify for it.”
Strenuous standards
With different buildings performing at different levels, White isn’t sure if hitting all four of the hardship exemption requirements would be possible in their current form.
Deiter calls the standards strenuous, with facilities needing to prove they’ve done anything and everything possible to recruit and retain staff.
A three-year lead time to align with the staffing mandate for most SNFs may be enough time for sufficient recruiting. But given that right now the workforce is still 11% below the amount of staff the nursing home industry had before the pandemic, meeting the standards may be a tall order for many other, more vulnerable, facilities, Deiter said.
“It’s very difficult at this point to foresee how those requirements would be met, particularly in rural areas. In urban areas, we’ve got a better chance,” said Deiter. “Everybody right now is in a state of panic. The last couple of years have drained the workforce almost completely.”
And, the provider community is already having a tough time keeping up with requirements as they are, she said. It might come down to a question of competency to make the staffing requirement work. That means that if a facility has more competent workers, they can still take on higher acuity patients and do the job with fewer people, rather than bringing in loads of new staff with less training.
From a consumer welfare standpoint, exemptions could encourage more “financial chicanery,” according to a report from KFF. Many operators have “mastered the art of being poor while their owners siphon money into their own pockets,” the KFF article states.
The report refers to operators who set up separate companies to segment the business, with one company sometimes encompassing management, the staff, equipment or the building itself, according to KFF.
Meanwhile, exemptions have caused further consternation among patient advocates.
Confusing criteria
CMS’s criteria for exemptions can be confusing – and difficult to prove easily – for providers, Deiter said, illustrating his point by using the 20% provider-to-workforce area rule as an example.
“If I’m a provider and practically, I’m just trying to Google my way to find out whether or not I qualify as an area that is depressed in terms of the availability or the inventory of potential employees – I found that to be pretty difficult to put my finger on,” said Deiter.
She’s unsure if providers will know automatically whether or not they’re in an economically depressed area, as defined by CMS. While on a practical level an operator might feel that they are located in a depressed area because they may be failing to attract employees despite sign-on bonuses and advertisements, that still might not meet a CMS definition, or data. In other words, real life conditions fail to jive with the theoretical definitions and data used by CMS.
“There’s some ambiguity around that part,” said Deiter, referring to the provider-to-workforce area rule. “There’s little ambiguity around whether or not they will qualify from a survey standpoint, that’s fairly straightforward. It’s pretty well defined. But I think for some of the rest of it, it gets to be very difficult.”
Klusch echoed Deiter’s sentiments on criteria ambiguity, and figuring out what exactly would be needed to qualify.
“They want documentation of their financial commitment to staffing, but what are they going to expect? Are you going to have to pay bonuses to everybody or will you always run into overtime?” said Klusch. “I don’t think that they’ve explained that adequately.”
The same can be said for the good faith effort criteria. CMS needs to define and establish criteria around what constitutes a good faith effort.
“Who’s going to decide whether the administrator in a 50-bed building, in a medium-sized town in rural Ohio or rural Indiana is making a good faith effort? That term, it’s like saying the sun is shining,” said Klusch.
Companies featured in this article:
Alliance Training Center, CMS, HDG, Ignite Medical Resorts, LeadingAge
