‘Shocking’ Assumptions on Labor: Lawmakers Urge CMS to Withdraw Staffing Mandate

More lawmakers are calling upon the Biden administration to kill the proposed minimum staffing rule in a letter sent Tuesday to federal agencies.

Members of Congress expressed concern over lack of workers and what they noted was an “unfunded mandate” with a high price tag of $40.6 billion, arguing that if implemented, it could force many nursing homes to close, threatening resident access to direct care services. 

“It is … shocking to see the Administration assume that an available, trained workforce is sitting on the sidelines – ready to immediately fill these gaps within the next three to five years,” the lawmakers wrote in the letter addressed to Health and Human Services (HHS) secretary Xavier Becerra and the Centers for Medicare & Medicaid Services (CMS) administrator Chiquita Brooks-LaSure.


The letter – issued by House Energy and Commerce Committee Chair Cathy McMorris Rodgers (R-WA), House Ways and Means Committee Chairman Jason Smith (R-MO), and Senate Finance Committee Ranking Member Mike Crapo (R-ID) – follows last week’s subcommittee hearing of the House Energy & Commerce Committee, where lawmakers clashed on the specifics of the minimum staffing mandate.

“Our nation’s nursing homes have weathered an unprecedented storm over the past three years. From government spending induced inflation to pandemic provider burnout, community access to long-term care services has been strained,” the lawmakers wrote in the latest letter. “As such, we strongly urge you to withdraw the rule and work with us on tailored solutions addressing the severe health care workforce shortages in our states,” they said, noting that since January 2020, over 400 nursing homes closed their doors and approximately 190,000 nursing home employees left the workforce.

The lawmakers also urged federal officials to consider the excessive burden the staffing mandate will place on facilities, especially those located in rural areas with staffing shortages.


“Given this current landscape, the administration’s proposal will only serve to further undermine patient access to skilled nursing care,” the lawmakers said.

According to the lawmakers, CMS was “blatantly overstepping Congress’ sole authority to set staffing requirements.” They cited sections of the Social Security Act (SSA), which require nursing homes to provide licensed nursing services at least 8 consecutive hours a day, 7 days a week.

“While the statute explicitly authorizes the HHS Secretary to waive this requirement under certain enumerated conditions, the statute does not allow the Secretary to issue regulatory requirements that set a floor exceeding the statutory minimum,” they argued.

Lawmakers are seeking information by November 30, 2023 on the criteria used by CMS to justify statutory authority in establishing a minimum staffing threshold exceeding what the SSA outlines under current law. Moreover, in noting that the proposed rule fails to include any discussion, data, research, or economic impact analysis showing the number of skilled nursing facilities (SNFs) and nursing facilities (NFs) that will be forced to shut down, lawmakers are requesting federal agencies to provide estimates of the number of facilities, broken down by state, that are expected to close due to the proposed rule.

Short of that, lawmakers want “a detailed explanation” of why facility closures were not accounted for in the staffing proposal’s economic modeling.