‘This Isn’t Realistic’: Nursing Homes Decry Exemptions Process for CMS Staffing Mandate Amid Survey Backlogs 

In the midst of the nursing home sector staging a legal fight against the federal government’s staffing mandate, an important consideration at play is the backlog of survey inspections that could significantly impact the attainment of exemptions from the minimum staffing requirements.

It has been well documented that a shortage of surveyors has led to delays of sometimes three years or more. And for its part, the Centers for Medicare & Medicaid Services (CMS) acknowledges that annual funding for survey and certification programs has remained stagnant, exacerbating the strain on surveyors and inspections. But it remains unclear whether this has been factored into the agency’s process for exemptions and waivers, which will rely heavily on the role played by surveyors.

“For over nine years, annual funding for survey and certification programs to conduct health and safety inspections has not changed, even as the volume of complaints about nursing homes has risen,” a CMS spokesperson told Skilled Nursing News. “That’s why the president’s fiscal year 2025 Budget calls on Congress to increase available funding for nursing home inspections.”


The budget for fiscal 2025 proposes to shift funds for nursing home surveys from a discretionary appropriation to a mandatory appropriation, and increase the funding to a level necessary to achieve a 100% survey frequency, adjusted annually for inflation by 2026 – the year the staffing rule is expected to become effective, the spokesperson said.

“Adopting this proposal would finally guarantee sufficient funding to promote the health and safety of the nation’s nursing home residents,” the CMS spokesperson said.

In the meantime, the overall number of nursing home complaints has sharply increased in recent years, and CMS expects that states would need to conduct over 90,000 nursing home complaint surveys in 2025, a 13% increase over 2022.


Hence, to bolster oversight, the budget proposes a $492 million allocation for survey and certification, marking a significant increase of $85 million, or 21%, above FY 2023, the spokesperson for CMS said.

Concerns over exemption process

However, in the middle of these efforts, concerns are being raised about the impact of survey backlogs on the process of attaining exemptions to the CMS minimum staffing rule.

Under the final rule, nursing homes must first be surveyed and cited for noncompliance before being considered for an exemption.

Jodi Eyigor, Director of Nursing Home Quality Policy at LeadingAge, expressed concerns about the delay in processing exemptions, given state agencies’ workforce shortages and survey backlogs.

“Understanding that state agencies continue to suffer from workforce shortages and survey backlogs, we are concerned with how quickly exemptions will be processed,” Eyigor said. “The nursing home cannot request or self-initiate this survey; a provider must simply wait for the state agency to make their rounds.”

Moreover, to qualify for an exemption, a facility must be in a location where the local workforce is 20% below the national average. Given that nationwide, the health care sector and nursing homes in particular are facing a shortage of caregivers, advocacy experts called this figure “an arbitrary benchmark.”

Meanwhile, the multiple, cumbersome criteria nursing homes must meet, including the geographic component for staffing shortage, hiring efforts and financial commitment, will make it very difficult for the exemption requirements to be met.

CMS exemption estimates inaccurate

Thus, despite CMS estimates suggesting eligibility for roughly 22% to 29% likely receiving the exemptions, Eyigor cautioned that much fewer facilities may ultimately be successful due to stringent criteria.

After meeting multiple criteria aside from geographic location, nursing homes must also show good faith efforts for hiring and retaining staff and demonstrated financial commitment.

To top that, certain nursing homes will be excluded from obtaining exemptions and waivers.

Those in the Special Focus Facility (SFF) program, facilities with no PBJ submission, or facilities with certain citations within the past 12 months, will be barred from receiving exemptions.

For executives from advocacy groups, this again just reinforces an oversight system that piles on fines and citations without doing anything to help these facilities improve.

“With all this considered, it is likely that even fewer nursing homes than the 22% to 29% estimated eligible by CMS will actually be granted exemptions,” Eyigor said.

Moreover, much remains unexplained in terms of how the complicated documentation requested by CMS will be processed to assess eligibility for waivers and exemptions.

“While CMS has provided some information about the documentation that will be evaluated to determine eligibility with these criteria, we do not know exactly how surveyors will determine that the criteria have been met,” she said.

The American Health Care Association’s (AHCA) analysis of federal data showed only 6% of nursing homes currently meet all four staffing mandate requirements, with AHCA officials also echoing concerns about the exemptions process, emphasizing the challenges faced by facilities.

Holly Harmon, Senior Vice President of Quality, Regulatory, and Clinical Affairs at AHCA, highlighted fundamental issues, including the requirement for facilities to be cited for violations before applying for exemptions. And, with the majority of nursing homes struggling to meet staffing mandates, Harmon criticized the exemptions program as unrealistic and impractical.

“The fundamental issues with the exemptions process are that facilities in need can not apply. They must be found in violation and cited, and only certain areas will qualify for the exemption. When 99% of nursing homes are actively trying to hire workers and 94% of facilities can’t meet this mandate, this isn’t a realistic program,” Harmon said.

As stakeholders navigate the complexities of nursing home oversight and staffing challenges, the implications of survey backlogs on exemptions remain a pressing concern, and could be truly detrimental to access of care.

“Finally, a bigger concern of CMS and the public should be what will happen to all the older adults in need of nursing home care who are unable to access it because providers have to limit admits or close down beds and units in order to comply with a staffing standard based on inconclusive evidence,” Eyigor said.

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