Every day brings with it news that makes it clear why the nursing home sector cannot weather a new federal government staffing mandate, whether it’s a horrendous figure out of Kansas – where 52 nursing homes have either outright closed or delicensed capacity – or a recent editorial in the Duluth News Tribune noting that “[e]very month in Minnesota, thousands of patients are being forced to stay in the hospital longer than necessary because nursing homes and assisted-living facilities simply don’t have the staff to take them.”

Talk of a staffing mandate is so out of touch with such realities as to seem farcical. A December 2022 state-commissioned study in Montana, where 12 facilities closed last year, a shocking one-fifth of all facilities, found nursing homes need a 34% Medicaid rate increase, an unlikely outcome in the conservative legislature. 

To their credit, both of Montana’s U.S. senators were among a bipartisan group of 13 who sent a January letter to the Centers for Medicare & Medicaid Services noting that “sweeping staffing mandates do not account for individual facilities’ operational capabilities and local workforce conditions.”

Our priorities are askew.

The federal government recently made it clear it will act as guarantor for bank deposits of any amount from tech moguls and cryptocurrency speculators, no matter how risky the bank is. Airlines got a $54 billion bailout during the COVID-19 pandemic, and how is that working out for passengers? 

In contrast, the targeted provider relief for nursing homes gave them a measure of operational freedom for an initial $4.8 billion split among 12,806 facilities on a per-bed basis, while $4.6 billion in other relief was highly conditional and at least partly, if not entirely, inaccessible for many facilities.

Compare that parsimony to the largesse lavished upon the Medicare Advantage insurers that are hollowing out the half-century-old program like weevils in a grain silo. They were recently forgiven even the overpayments they received from 2011 to 2017, prompting Kaiser Health News to proclaim: “Government Lets Health Plans That Ripped Off Medicare Keep the Money.” In its benevolence, the federal government estimated it was forfeiting “the collection of approximately $2 billion in improper payments[.]”

But what’s $2 billion among friends?

To the list of the federal government’s most favored entities, we must now add nurse staffing agencies. After all, fifteen months ago, a bipartisan group of almost 200 House members asked the Biden Administration to investigate the price-gouging, anti-consumer practices of these agencies, to no avail. 

The ideological breadth of those seeking action was impressive, from liberal Democrats to Freedom Caucus members. Two of the very conservative Republicans are now U.S. senators, Ted Budd in North Carolina and Markwayne Mullin in Oklahoma. These legislators of divergent views on other issues all united in recognizing that the “free market” is being subverted by staffing agencies.  

In New Hampshire, facilities offering high wages still must use agencies. One county-run facility, for example, is paying nursing assistants $17 to $24.61 an hour, with up to an $8,000 signing bonus, and yet cannot find enough staff. Another county-run facility that pays its nursing assistants up to $24.83 an hour has a waitlist of 138 residents because of its workforce shortage. It has paid as much as $89 an hour for an agency nursing assistant. And it’s worth noting that it’s not just nursing staff recruitment and retention that is an issue – the facility just lost a dietary aid making $13 an hour to a distribution warehouse paying $21. How can you compete in an overheated labor market within Medicaid means?

We have a bill pending in the legislature to simply require registration of nurse staffing agencies and forbid some specific bad practices – like double-booking the same worker and forcing a bidding war – and it has drawn reasonable questions from legislators. One, for example, was why facilities don’t negotiate better contracts with agencies. What such a question fails to apprehend, however, is the enormous imbalance of power between a provider and an agency, which agencies leverage to their advantage. These are take-it-or-leave-it contracts of adhesion, not agreements negotiated between equal parties. It is a marketplace of desperation.   

We cannot find workers. If even government-run facilities, including veterans’ homes, cannot staff without the use of agencies, why would the federal government, through a staffing mandate, further force facilities into the unloving embrace of pirates? If it does, it must at least be honest that further fueling the grotesque profitability of staffing agencies was its aim, not the betterment of nursing home care.

Brendan Williams is the president and CEO of the New Hampshire Health Care Association.

The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.