In Manchester, NH, there are two very small Catholic nursing homes. Serving the Sisters of Holy Cross, the 24-bed Holy Cross Health Care Center, like the Sisters of the Presentation of Mary’s 22-bed St. Joseph Residence, primarily cares for nuns.
Under the Biden Administration’s unfunded staffing mandate, both facilities will now be required to provide 24/7 registered nurse coverage that is three times the federal statutory requirement. No collection plates would be big enough to help them accomplish this. Yet, tragicomically, CMS asserts “this final rule will not have a significant economic impact on a substantial number of small entities[.]”
At last report, New Hampshire’s hospitals faced a RN vacancy rate of 17%. Absent available licensed workers, the state itself has been forced to use staffing agencies for its own facilities. Last November, of the 16 staffing agencies contracting with the New Hampshire Hospital and the Glencliff Home — at a cost of $11.5 million — only two were based in New Hampshire.
In its contracts the state committed to rates as high as $94 an hour for RN coverage. Setting aside the question of whether even the state can afford such costs in the long term, nursing homes cannot. And yet staffing agencies would be the only option for most nursing homes seeking to meet the new RN mandate.
As Vice President Harris announced the mandate, the Hillsborough County Nursing Home had a wait list of 120 prospective residents that it could not serve due to staffing issues. The workforce crisis is plain to see when even county-run nursing homes, the lineage of which traces back to poor farms and almshouses, must turn away those in need of care.
And why would we imagine an abundance of licensed workers will suddenly be available to nursing homes when the rule takes effect? Isn’t society becoming older, creating unmet workforce needs in home and community-based settings too?
According to a survey of New Hampshire nursing homes, 85% of those not currently meeting the nurse aide staffing requirement could not do so without using staffing agencies. Of those not meeting the RN staffing requirement, 89% reported they could only do so through staffing agencies. Based on their present circumstances, only 6% of nursing homes stated they could simply comply. Half would use staffing agencies, 40% would reduce admissions to boost their staffing ratios, and 3 out of the 69 facilities responding reported that they would simply close.
It is incomprehensible how the interests of nursing home residents, or workers, would be served by either greater utilization of staffing agencies, putting more strangers by the bedside, or by denying care. This is plainly an exercise in political artifice. Harris made her announcement at a thinly-disguised campaign event in the battleground state of Wisconsin, while Health and Human Services Secretary Xavier Beccera, as he bashes nursing homes, is reportedly spending money on campaign consultants for a California governor’s race.
Let’s return to the statutory RN requirement. The Nursing Home Reform Act component of the Omnibus Budget Reconciliation Act of 1987 was, as the New York Times reported in January 1988, “written in extraordinary detail, like an agency regulation. Members of Congress said the level of detail reflected their distrust of the Administration on this issue.” And as a 2007 report on the law noted, staffing ratios were specifically rejected to allow for “a compromise bill that was supported by the industry and consumer advocates.”
The law’s specificity, a compromise designed to thwart laissez-faire agency interpretation, is now a double-edged sword. Even under the administrative deference articulated by the US Supreme Court in its 1984 decision in Chevron U.S.A., Inc. v. NRDC the Court noted that “[f]irst, always, is the question whether Congress has directly spoken to the precise question at issue.”
You cannot amend precise statutory language through regulation. Those who would cheer an effort to do so under President Biden should contemplate such power’s use were Donald Trump to return to office. Would they still cheer then?
Brendan Williams is the president & CEO of the New Hampshire Health Care Association.
