Skilled nursing providers who had readied themselves for the unveiling of a national staffing mandate as part of the 2024 pay rule were left reading the tea leaves this week after federal regulators delayed their announcement.

The Centers for Medicare & Medicaid Services said Tuesday that it was still committed to issuing a rule “later this spring.” Some leaders took the additional delay as a sign that the agency could be truly trying to balance the reality of current hiring conditions with the altruistic goal of increasing direct care.

“We hope this indicates that CMS is taking the time to thoughtfully consider how we marry policy with practicality,” the American Health Care Association told McKnight’s Long-Term Care News Wednesday. “We all want to increase the long-term care workforce, but an enforcement approach will not solve this labor crisis and will only worsen access to care for seniors. We hope CMS is putting together a supportive approach.”

On Monday, the American Hospital Association took the unusual step of standing alongside AHCA on what has traditionally been viewed as a post-acute issue. In a letter sent to CMS Administrator Chiquita Brooks La-Sure, the two heavyweight associations urged not to enact a staffing mandate that could further harm the nursing home sector’s workforce. 

“Federal staffing mandates for nursing homes in the middle of a labor crisis would exacerbate the current access to care crisis,” they wrote. “We anticipate many nursing homes will be forced to further reduce their capacity and even close their doors if they are unable to meet these staffing mandates. This would accelerate the domino effect across the entire continuum of care and leave vulnerable seniors with fewer care options.”

Few think CMS will actually abandon its proposal altogether, but at least for now they are pleased to have extra time to prepare for the rule.

“At least we are not dealing with it today, now,  at the same time we’re looking at the proposed PPS rule,” Ruth Katz, LeadingAge senior vice president of public policy and advocacy, said on a call with members Wednesday.

In a short email Thursday, a CMS spokesman told McKnight’s that “promoting adequate staffing is a cornerstone of the Administration’s initiative to improve the safety and quality of care in the nation’s nursing homes.”

The message echoed a statement in a pay rule fact sheet that CMS “remains committed to proposing a minimum staffing standard this spring.” But the agency declined to answers questions on reasons for the delay, how the rule might ultimately be released or more specifically when. 

AHCA and LeadingAge have been sounding alarms over the proposed staffing mandate since it was first promoted by President Biden in February 2022. Some experts expect it will hew closely to requiring 4.1 hours of nursing per patient day. 

Fear of that standard or other stringent measures in the face of a historic labor shortage has been met with significant pushback. 

In January, 13 US Senators from predominantly rural states asked Brooks-LaSure not to take a “one-size-fits-all” approach to SNF staffing that “would undermine access to care for patients.”

Nursing homes nationwide lost approximately 210,000 workers from February 2020 to December 2022, which has already caused a “ripple effect” throughout the healthcare continuum. The letter referenced a “tripledemic” this past fall and winter during which hospitals saw a “surge of patients” but staffing shortages at nursing homes prevented discharging patients to SNFs for continuing care and rehabilitation. The letter mentions that patients are frequently waiting “days, weeks, or even months” in hospitals for beds to open up at SNFs.

Hospitals also squeezed

While there is no federal staffing requirement for hospitals, that sector is experiencing its own agitation with some states passing staffing recommendations. So far, only California has a hospital staffing mandate, which has received mixed reviews.

The California Hospital Association told Becker’s Hospital Review in February that the state is short of more than 40,000 registered nurses. California requires nurse-to-patient ratios ranging from 1-to-1 up to 1-to-6, depending on the type of unit. Those ratios have been in place for more than two decades, and Joanne Spetz, PhD, professor and researcher at the University of California San Francisco’s Center for Health Workforce Research, said that some hospitals have cut nurse aides and other positions so they can hire the more experienced, required nurses. 

The AHA/ACHA letter featured recommendations that the groups feel CMS should support as a way to boost employment at nursing homes. They include: 

·      Federal immigration reform to create a temporary visa for registered nurses and expedite visas for foreign-trained nurses; 

·      Supporting apprenticeship programs for nursing assistants;

·      And extend the waivers created during the pandemic to give nurse aides already working in SNFs more than for months beyond the end of the public health emergency on May 11 more time to complete state training programs. 

The letter also recommends that the Government Accounting Office examine how staffing agencies raised costs and profited during the pandemic. 

Even without the staffing minimum, CMS is already ratcheting up pressure on providers struggling to recruit or retain staff. The agency included in its proposed rule a plan to add total nurse staffing turnover to its value-based purchasing program, which penalizes poor performers and offers incentives payment to high performers.

“That will be interesting, considering we are in the middle of this staffing crisis,” Jodi Eyigor of LeadingAge said.

Eyigor predicted the staffing rule would most likely be issued as a standalone rule in the coming weeks or months, though it also could be tucked into another, unrelated rule.