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Nursing Homes Seek Latitude on Staff Mandate, Funds to Meet It

July 15, 2022, 9:25 AM

Nursing homes are seeking lots of flexibility, forgiveness, and funding when the Biden administration implements its mandatory minimum staffing requirements for the facilities next year.

Rather than hard and fast quotas, they want flexible staffing requirements that vary based on factors like the availability of local labor, the health status of facility residents, a building’s physical layout, and the quality of care provided.

They also want forgiveness in the form of exemptions and waivers for nursing homes that can’t meet the new staffing mandates through no fault of their own.

And most of all, they want more Medicare and Medicaid funding to pay for any required workforce expansion that would result from an industry-wide staffing requirement.

“It’s hard to put a specific number on anything quite yet. But what we are advocating for is that any new requirements must be fully funded,” said Holly Harmon, senior vice president of quality, regulatory and clinical services at the American Health Care Association and the National Center for Assisted Living, the industry’s leading trade group.

‘Comprehensive Approach’ Sought

The AHCA’s staffing requirement wish list, spelled out in recent public comments, reflects what Harmon called a “comprehensive approach to staffing beyond numbers.”

But a leading advocacy group for nursing home residents says the industry hasn’t proved its case for more federal money due to a lack of transparency in the reporting of nursing home profits, spending, and corporate ownership structures.

“We need better clarity on how they’re spending the money they get before we can start saying they need more money,” said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care.

Medicare and Medicaid funding—which accounts for the bulk of the industry’s revenue—should go toward “resident care, not towards bonuses and administrative expenses,” Smetanka said.

Concerns like these have prompted the Centers for Medicare & Medicaid Services to propose more thorough reporting of industry finances. If a closer look “really does show that their margins are too thin, than we definitely can be looking at whether there needs to be increases, or a readdressing of payment issues. But until we have that better transparency, I think we just can’t take them at face value,” Smetanka said.

The proposed staffing requirement is the centerpiece of a wide-ranging Biden administration push to improve the quality of care at U.S. nursing homes, which were ground zero for the Covid-19 outbreak.

Federal law requires nursing homes to provide “licensed nursing services” that are “sufficient” to meet resident needs. But Medicare only requires nursing homes to have at least one registered nurse on duty for eight straight hours per day. A 2019 study by researchers at Harvard University found 54% of facilities met the expected staffing levels less than 20% of the time, the study found.

The nursing home industry has lost 229,000 workers, over 14% of its workforce, since the Covid-19 pandemic began in February 2020, according to federal data.

Smetanka agreed that resident acuity and other factors merit consideration when developing mandatory staffing levels, but only to determine how much higher a facility’s staffing should go beyond a minimum requirement.

“We’re pretty adamant that there should be a level below which you cannot go. Because at that point, you just cannot meet the basic needs of residents,” she said.

Minimum Standard

In 2001, the CMS recommended a minimum standard of 4.1 nursing hours per resident each day in order to prevent harm and ensure the safety of residents. That broke down to 2.8 hours a day from certified nursing assistants, 0.75 hours from registered nurses, and 0.55 hours from licensed practical nurses.

“We believe that is the minimum below which you shouldn’t go. And anything else, we need to go up from there,” Smetanka said.

The AHCA disagrees. “Every nursing home is different and a one-size-fits all approach is not the solution,” Harmon said. “It’s not as simple as that. Nursing homes need to be able to assess the appropriate staffing levels based on their resident population. And that resident population changes from day to day, month to month.”

Only 25% of nursing homes meet the 4.1-hour threshold, said Richard Mollot, executive director of the Long-Term Care Community Coalition.

Researchers from the AHCA and Brown University estimated that it would have cost nursing homes nationwide $7.25 billion in 2019 to boost staffing to 4.1 hours per resident each day. Doing so would’ve required an additional 35,804 registered nurses, 3,509 licensed practical nurses and 16,929 certified nursing aides, the research found.

To meet a different staffing standard that averaged the same 4.1 hours of daily care, 59% of nursing homes would have to pay an average of $500,000 per facility, or $4.9 billion nationwide, according to recent research by John Bowblis, an economics professor at Miami University’s Farmer School of Business.

‘Monumental Change’

“So we’re talking about monumental change,” Harmon said. “The cost to invest in staffing is significant. And the problem is that fixed government rates chronically underfund the cost of care. We need the support of public officials to provide a serious and sustained solution to this chronic problem.”

The CMS is conducting a study to determine the feasibility of staffing requirements. They’ll hold stakeholder listening sessions in August to inform the scope and sweep of their research.

If the CMS requires a minimum standard based on daily nursing hours per resident, the agency should consider an “acuity adjustment to tailor the requirement to each unique facility and its resident needs,” the AHCA recommended in its public comments.

The group also wants the CMS to let facilities obtain an exemption or waiver from the staffing requirement “if they have circumstances that prevent them from obtaining adequate staffing.”

The CMS should also allow “accommodations for rural nursing homes, especially for allowing telehealth or remote available presence versus requiring a RN in the building,” the AHCA’s comment letter said. And facilities with solid patient outcomes, good clinical care and high customer satisfaction “should not be penalized for not meeting minimum staffing requirements,” the AHCA recommends.

Doing so could create “unintended consequences,” like facility closures, limits on new admissions and hiring for one position by eliminating another, Harmon said.

Smetanka said her group opposes all waivers or exemptions for the staffing requirement. In areas where it’s harder to attract and recruit people, “let’s focus on what we can do to support those areas” and look for better solutions, she said. “But there has to be a baseline below which you cannot go, regardless of where you are.”

The AHCA wants the CMS study expanded to determine not only the cost of new mandatory positions, but also the current and future availability of staff to fill the positions.

It also wants a “steering committee” that includes nursing home operators to review the CMS study results, and time after the study to “engage stakeholders in review and feedback of study findings to inform any requirements that follow,” the AHCA comment letter said.

Smetanka was leery of industry requests that could extend the study period.

“We do not accept any process that’s going to delay getting” the study completed and the staffing requirements implemented, she said. “Delays are not acceptable. We’ve waited long enough,” she said.

To contact the reporter on this story: Tony Pugh in Washington at tpugh@bloomberglaw.com

To contact the editors responsible for this story: Karl Hardy at khardy@bloomberglaw.com; Cheryl Saenz at csaenz@bloombergindustry.com