By Steve Moran

This is the second article in a three-part series on staffing mandates. Read part 1 here and part 3 here.

The senior living industry/skilled nursing sector has taken a strong position that we do not need and we should not have any staffing mandates. The proposed regulations have provided high octane fuel to their opposition to mandates.

Here are the reasons why this proposed set of regulations is ridiculous:

  • There is already an acute shortage of workers in nursing homes, causing facilities to close and to restrict admissions. The proposed regulations completely ignore this reality.
  • The proposal would require an additional 100,000 workers.
  • The proposal would cost and estimate $6.8 billion per year.
  • Particularly in rural areas, a significant number of nursing homes would be forced to close for lack of staff at any wage rate.
  • The proposal does not make any allowance for adjustments up or down based on resident acuity.
  • The proposal does not count LPNs ,which are the backbone of nursing in many facilities.
  • MOST IMPORTANT OF ALL, IT WILL HURT RESIDENTS AND STAFF!

There is widespread opposition to these proposed rules, including a bipartisan letter signed by 28 senators opposing the proposed rules.

What Is Wrong With CMS?

I am completely baffled by the logic behind this proposed set of rules. If someone wanted to create a set of rules that made CMS look stupid, this would fit the bill. Why would they not include LPNs? Why would they not include provisions for acuity? How come no one did a sanity check, asking how this would be received and if it actually made any sense at all? So many other questions.

I find myself wondering if, because of pressure from the White House, they knew they had to put out something even though they knew it was a bad idea. So they put out this foolishness, knowing it would crash and burn.

Take a look at some of the opposition comments:

As a RN, licensed nursing home administrator and previous family member of patients in long term care, I fully support having sufficient and trained staff in long term care. However, the new rules are not reasonable. Long term care, and healthcare in general cannot find sufficient numbers of RNs, LPNs, and C.N.A.s at the present to staff in the manner we would like. How are we supposed to find additional persons. I respect that the government is putting money towards education and that is great but the opportunities to work in healthcare are NUMEROUS and long-term care is often their last choice. I see the opportunity to have a RN 24/7 and think it is a good idea but doubt that we will be able to find enough RNs interested and willing to do this. Again, they have MANY choices. The biggest concerns I have with the rule are as follows:

  1. There is no provision for recognizing the contribution of LPNS. This is a GREAT resource for LTC. Not all facilities need that many RNs. A typical facility can be well care for with adequate LPN and C.N.A. staffing and RN supervision. LPNS are critical in the LTC world.

  2. If you want to mandate staffing rules and minimums, we need reimbursement to match. The only way LTC will get RNs to leave acute and OP facilities to come to LTC is if we pay MORE, not the same. The C.N.A. numbers will require more money, not the same.

  3. The payment methodology needs changed to reflect the higher staff and HIGHER cost of behavioral health patients. There are no alternatives for these elderly patients with severe dementia. It is nearly impossible for facilities to keep staff to take care of these types of patients because they are hard to manage and place C.N.A.s in continual harm. Either create facilities for these patients with adequate payment so that staff can be retained, or increase the matrix for current facilities.

I have much more to say if anyone cares to listen.

— https://www.regulations.gov/comment/CMS-2023-0144-0017

This updated proposal will place an undue financial and regulatory burden on small rural nursing facilities without additional funding. Post- Covid RN hiring has been non-existent and with the rise of staffing agencies the workforce has not returned to in-person full time employment at skilled nursing facilities.

This proposal must take into effect the hardships for small rural facilities who currently have difficulty attracting and retaining staff while also being financially stable. This current proposal without additional means of support to these facilities is not viable.

— https://www.regulations.gov/comment/CMS-2023-0144-0003

I think having a minimum staffing level should be put on hold until facilities have enough staff to start with. Are the staff just going to miraculously appear simply because there is a regulation?? Many facilities will likely close. Families will have to travel further to see their loved ones. I think all facilities would LOVE to have more staff. But there needs to be more time to get more nursing educators in the colleges and more people willing to work. I would say 5 years at least. And to say those facilities with harm Tags for insufficient staffing won’t be eligible for a phase in period is another mistake. Where are they going to find these staff? If they could find them, they would have them. Perhaps the Survey Teams could be split so some go work in a facility for 6 months and the others conduct surveys then they switch off. They would be able to see first hand what back breaking work it is for nursing assistants and how large the patient ratio is for nurses. This rule is not helping the key leaders either. I project an even larger exodus for directors of nursing who cannot keep up with their jobs as it is due to working as a floor nurse more often than not.

— https://www.regulations.gov/comment/CMS-2023-0144-0005

In reference to CMS–3442–P, I operate nine nursing facilities and spend over $5,000 a month in employment ads & labor cost trying to hire RN’s & C.N.A. daily. I have two homes who have been without a DON for Months. Both homes are in Rural Areas. I am offering $120,000 a year, paid health insurance and housing, yet no one wants the responsibility of the position, or they refuse to be on call on weekends. I have raised the C.N.A wages three times since 2020 and currently have over 35 openings just in six homes. I am paying the current staff daily shift bonuses to fill in and have recently added in an attendance bonus to help with the call ins. We buy food for each home all three shifts once a month, offer meals from the kitchen at $4 a meal, buy them scrubs & shirts monthly, and sponsor staff in nursing programs. If I could get enough RN’s to provide 0.55 hours of care per day per resident, I would gladly do it ….

— https://www.regulations.gov/comment/CMS-2023-0144-0008

There are nearly 5,000 comments. I confess I did not read them all but looked at a random sampling of recent comments and early comments. The industry should be concerned because it appears the number of comments supporting mandates is much higher than those opposing mandates.

This is the second article in a three-part series on staffing mandates. Read part 1 here. Subscribe to Foresight here so you don’t miss a post.