As the leaves start to fall in many parts of the US, so has something else: Hope that a rule establishing minimum staffing levels in nursing homes won’t happen in spring.

It’s become abundantly clear over the past few months that the administration will not be deterred from its mission. It will soon tell nursing facilities how many people they have to have to run their businesses. Long-term care’s biggest figureheads have acknowledged as much and have started planning for the next steps.

I’m typically a glass-half-full kind of guy. So when things start to look undeniably tough, I look for best-case scenarios.

In the case of a minimum staffing rule, I know there are at least some better-case approaches providers can focus on.

I’m sure I was not alone when I first envisioned the White House suddenly announcing an edict that by, say, April 1, “You’re going to face big-time penalties if you aren’t averaging 4.1 hours of nursing per patient day.”

That doesn’t appear likely, so what might be?

  • As noted by some LTC higher-ups, the Centers for Medicare & Medicaid Services could issue a rule that is accompanied by funding that covers the additional staff it calls for. AHCA estimated this could be as much as $10 billion per year, so let’s put this possibility near the “fairy tale” end of the spectrum.
  • CMS could issue a rule that wouldn’t be triggered until the skilled nursing workforce had recovered to pre-pandemic levels. Given that this would mean tens, and probably several hundreds, of thousands of jobs, even before new ones to satisfy a minimum mandate were factored in, let’s put this just a tad closer to the “possible” spot on the spectrum.
  • Federal regulators also could make terms of the rule broad so that they would be more achievable. This is a big play AHCA, LeadingAge and others are angling for. This could mean, for example, widening the list of job titles that could contribute to direct staffing totals. Do we see some weary rehab therapy professionals back in the corner with their hands up?
  • CMS also could come up with a demonstration project to test any proposed minimum staffing system. This would seem to be the most desirable of all options. 

By coming up with a plan and giving it a test-run — hopefully in a state that can give a meaningful look at numerous dimensions of any proposal — both regulator and provider camps could learn a lot. Like what to stay away from, as well as what not to fear.

Demonstration projects also take time to run their course.This could be another reason for providers to root for one.

There were signs that the stoics in Baltimore found a bit of heart this summer when they softened the Medicare fiscal 2023 pay rule to a surprising degree. If memory serves, it seemed to occur because of worries about more provider bankruptcies and the future curtailment of services that might continue if the hardest of regulatory lines were maintained.

Whether that kind of sensitivity might appear two years in a row won’t be known for a while. But one can certainly cross fingers and hold out hope.

James M. Berklan is McKnight’s Executive Editor.

Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.