There’s a glaring hole in the proposed federal staffing mandate, and no, I’m not talking about that same blackhole that’s apparently sucked in 190,000 skilled nursing workers with no sign of spitting them back out.
The standards proposed by the Centers for Medicare & Medicaid Services Sept. 1 are contingent on the interpretation and oversight of surveyors. No big surprise, as they tend to carry well the big stick that CMS assigns them in this type of rule-making.
Here’s the money quote from the agency, in which it explains why it wants more than just a PBJ-based measure.
“We continue to recognize the value of assessing the sufficiency of a facility’s staffing based on observations of resident care conducted during the onsite survey,” the agency wrote in its officially published proposal. “It is possible that due to a facility’s layout, management, and staff assignments, a facility could meet the numeric staffing standards but not provide the sufficient level of staffing needed to protect residents’ health and safety.”
“The benefits and success of minimum staffing standards are heavily dependent on the survey process,” CMS continues. “Therefore, in establishing numerical minimum staffing standards our goal is to ensure that they are both implementable and enforceable.”
I added that bolding to raise two critical questions: Why should operators be prodded into implementing a standard they have no idea whether they have met until surveyors show up to to enforce it? And why should they have to meet enforcement deadlines that pay no mind to actual workforce demographics when CMS gets a total pass on that?
The nursing home rule makes no acknowledgement that many state survey agencies are so besieged by their own stellar staffing losses that they already cannot keep up with routine compliance and complaint investigations. Across the country, thousands of surveys are being delayed every day. They are victim to a lack of nurses and other potential workers interested in the relatively low-paying and non-people-pleasing work of conducting inspections.
And just like nursing homes, many survey agencies are desperately trying to recruit with raises and incentives and having zero luck.
Here’s the rub, though:
CMS often docks providers retroactively from an inspection date, and since 2021, the agency has returned to billing for the total number of days out of compliance, rather than per-instance. And that means providers could be facing a major fine by the time a surveyor shows up to check staffing levels and the types of staff on board.
More concerning for rural and other providers who expect they’ll need waivers: There’s no way to know with certainty if you’ll meet a good-faith provision or be eligible to apply for an exemption UNTIL you’ve had a survey that addresses the new staffing requirements.
And it doesn’t look like anyone is about to propose a staffing mandate to fill the ranks of state or federal surveyor groups.
Sen. Bob Casey (D-PA) might be the closest nominee, as he’s been keeping a keen eye on CMS as it struggles to regain its survey efficiency since an early pandemic pause. He’s also been a proponent of a nationwide staffing minimum. In May, he issued a report that found 32 state survey agencies have vacancy rates of 20% or higher among nursing home surveyors. The highest vacancy rates were in Kentucky (83%), Alabama (80%) and Idaho (71%).
CMS’ inability to enforce its own rule by failing to operate a timely and fair survey operation. To avoid that outcome, the agency certainly has questions to answer and some giant holes to fill.
Kimberly Marselas is senior editor of McKnight’s Long-Term Care News.
Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.