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After 60 days of public and often-heated debate, the formal comment period for one of the most controversial federal healthcare regulations ever proposed came to a close Nov. 6.

Skilled nursing providers and associations representing them came out swinging in their official letters to the Centers for Medicare & Medicaid Services, which is poised to impose the nation’s first federal nursing homes staffing minimums dictating the amount of direct patient care provided daily.

Operators and leaders argued that the rule as proposed would devastate nursing homes financially and lead to reduced access to care for patients. While embracing the intent of the regulation, commenters argued a one-size fits all approach with an estimated cost of more than $4 billion annually, and no funding mechanism, will not lead to better patient care.

“For the first time in decades, our federal government is committed to meaningful action to ensure America’s older adults and families can receive quality care in nursing homes, and in their homes and communities. We applaud that interest and share that goal. However the administration is not getting this right, yet,” LeadingAge President and CEO Katie Smith Sloan said in a press release shared in conjunction with her Nov. 1 letter to CMS Administrator Chiquita Brooks-LaSure. 

“The proposal will fail because it does not consider two major issues: the ongoing workforce crisis and the proposal’s astronomical implementation costs,” Sloan added. “Should CMS opt to implement it as is, older adults and families’ already limited access to care will only get worse.”

Among the 46,000 comments received by federal regulators by the deadline were thousands of coordinated, organization-wide campaigns meant to outpace comments from the rule’s proponents. 

Executives told McKnight’s Long-Term Care News the Ensign Group submitted an estimated 1,500 letters from its partners and affiliates. Team members from the Good Samaritan Society shared more than 600, and Tennessee-based Diversicare, more than 500.

“Our hope is that our collective voice, both as an organization and as an industry, will be heard by policy makers resulting in a more reasonable and nuanced staffing rule,” Diversicare CEO Steve Nee told McKnight’s.

Read here a sampling of comments from this historic effort:

Mark Parkinson, President and CEO, American Health Care Association/National Center for Assisted Living

“Chronic Medicaid underfunding and soaring inflation mean many facilities are operating on shoestring budgets or are on the brink of closure, and these unfunded mandates could push them over the edge — severely impacting seniors’ access to quality care,” wrote Parkinson, who asked CMS to rescind the proposal.

“The Proposed Rule has a disproportionate impact on nursing homes that are committed to serving some of our nation’s most vulnerable. Nursing homes that do not meet at least one of the requirements are more likely to have a majority of their residents relying on Medicaid (56 percent average Medicaid census) compared to facilities that meet the criteria (43 percent),” he added. “If there is one single instance in which the nursing home doesn’t meet these requirements, they’re in danger of being cited, fined or even worse, removed from the Medicare/Medicaid program. Meanwhile, the hardship exemptions as proposed are virtually impossible for a facility in need to meet. The process is cumbersome and imposes all-or-nothing criteria.”

Citing case law, AHCA also argued that the proposal exceeds CMS’s regulatory authority

“Congress has already prescribed specific staffing requirements for nursing homes that participate in Medicare and/or Medicaid,” Parkinson wrote. “The establishment of nationwide minimum-staffing standards is a major policy decision with massive economic and political significance. By CMS’s own estimates, it will require about 80 percent of US nursing homes to collectively hire nearly 90,000 additional nursing personnel, at a cost of more than $40 billion over the next decade. … Given the importance and potential impact of the Proposed Rule, as well as the fact that Congress has already spoken to this issue, CMS must identify ‘clear congressional authorization’ to adopt standards that exceed those established by Congress.

Katie Smith Sloan, President and CEO, LeadingAge

LeadingAge conducted its own cost estimates and found providers and states that reimburse for Medicaid-covered care would spend close to $7.14 billion annually to comply with the mandate.

“Were CMS to push forward with this unfunded mandate, the unintended consequences would cripple the healthcare system,” Sloan wrote. “Nursing homes would scramble to lure the limited RN workforce away from other healthcare settings that concurrently struggle with a workforce shortage. Where nursing homes were staffing up to meet minimum standards, home health, hospice, and hospitals would be losing the staff they need and have relied upon. 

“Nursing homes that were unable to meet minimum staffing standards would be forced to deny admissions, take beds offline, or close the nursing home altogether,” she added. “This would mean that individuals who were no longer safe at home would have nowhere to go and individuals in need of post-acute care after hospitalization would either be stranded in the hospital, occupying valuable acute care beds needed for other individuals, or they would be forced to be discharged back home without the skilled nursing care that they need.”

LeadingAge does not support rule finalization “until CMS can assure enough qualified applicants and adequate funding to meet requirements.” Sloan also insisted CMS count direct care hours from all nurse jobs tracked in the Payroll-Based Journal system, including directors of nursing and other RNs with administrative duties — and for LPNs to count toward one of the hourly proposals.

Patti Cullen, President and CEO, Care Providers of Minnesota

“While we concur with your overall goal that workforce is key to providing quality care and services to nursing home residents, we believe the best way to meet that goal is to focus on initiatives that will incent workers to return to work in long term care or start their careers with us,” Cullen told CMS. She took special exception to the exclusion of LPNs from hourly care requirements.

“Omitting LPNs from a minimum ratio will have devastating effects on the ecosystem of LPN education, and the career ladders Minnesota established in partnership with educational programs,” she wrote.

Cullen also raised concerns about impacts on rural providers, who would have to be in compliance with the RN and CNA requirements five years after the proposed rule becomes final, versus three years for other providers. She said rural providers have “little opportunity” to meet waiver demands.

“To require a completed survey, be penalized first and then hurdle over all other requirements is an ineffective way to meet the identified program goals; it also places nursing facilities at regulatory risk given how survey cycles are defined. A more effective waiver process would allow nursing facilities to apply for a waiver of a specific requirement on a time-limited basis while they work on a compliance plan.”

Brett Salmon, President and CEO, Nevada Health Care Association

“Our estimates show that our annual costs to staff to the proposed level is $28 million. Nevada’s entire biennial (two-year) budget is approximately $62M. This single staffing requirement [over two years] would cost almost as much as the state, county, and federal biennial funding for our entire Medicaid program,” wrote Salmon, asking CMS to fund the mandate to avoid an historic “cost-shift” to state Medicaid programs.

“Please do not confuse our concern over the lack of funding as a lack of support for more caregivers,” he added. “Most nursing facility providers want more quality caregivers in their buildings. They are often caught between financial viability (low Medicaid reimbursement rates) and trying to find an adequate workforce. There must be a balance to keep doors open for our residents.”

He estimated that the proposed mandate would require his members to hire an additional 440 nurse aides and an additional 75 RNs.

Zach Shamberg, President and CEO, Pennsylvania Health Care Association

“CMS, as well as every regulatory and legislative body throughout the country, should start planning now for what will happen when a rapidly growing older population has nowhere to go to receive skilled nursing care,” warned Shamberg, whose association represents 267 of the 675 licensed nursing facilities in Pennsylvania. “There is a serious crisis upon us, and this proposal will make the environment far worse for our providers, workers, and patients. 

“If CMS does move forward with this regulation as proposed, mark our words: the end result will not be higher quality care in nursing facilities throughout the country,” he said. “Rather, we will see a dramatic loss of high-quality nursing facilities.”

Shamberg said CMS should work with providers and stakeholders to improve the long-term care continuum, and allow states to implement staffing policies that fit their needs. PHCA was instrumental in Pennsylvania’s adoption of higher staffing requirements that began to be phased in earlier this year — requirements that conflict with those proposed by CMS. He, too, raised questions about funding, noting particularly damning consequences for Medicaid-dependent facilities.

Steve Nee, CEO, Diversicare

“While the intention behind such a rule is to improve the quality of care in nursing homes, there are several reasons why this rule, as proposed, is inherently flawed and could cause more harm than good to our industry and, ultimately, to those residents and patients we serve,” said Nee, outlining now-familiar concerns about the rule’s rigid ratio, financial implications, the ongoing workforce shortage and potential to limit access.

Diversicare operates 44 skilled nursing facilities in Alabama, Kansas, Mississippi, Tennessee and Texas, and Nee drew specific attention to the rule’s “unattainable waiver.”

“As proposed, the waiver is incredibly difficult, if not impossible, to attain. Furthermore, it is unreasonably burdensome for those rural centers that may need it the most,” he wrote.

He asked CMS to: delay rollout of requirements until workforce stabilizes; allow a 5-year rollout for all providers; include financial assistance to help cover increased costs; allow for the 24/7 RN requirement to be met through remote oversight; allow LPNs to count in the overall nursing hour calculations; and allow support staff such as social workers and activities professionals to count in an overall calculation.

Susie Tack Beardsley, Chief Administrative Officer, Quality Life Services

“We have been spending money we don’t have in an effort to ensure our staff are being cared for, but the situation is becoming untenable,” wrote Beardsley, whose family-owned company operates 10 facilities in Pennsylvania. “The state of PA has recently put additional staffing requirements on us that do not align with what CMS is proposing, which could leave us either having to choose which one to follow or throwing our hands up and putting one more for sale sign in front of a LTC facility in Western PA. 

“We would be joining the over 30% that have changed hands or are in the process of changing hands since COVID,” she added. “These rules are creating the exact opposite of what they’re intended to do. Out-of-state buyers who have no interest or regard for residents are the only ones currently purchasing facilities because they’re getting them in a fire sale. PLEASE reconsider these ratios.”

Beardley said Quality Life spends “tens of thousands of dollars” monthly to recruit, using sign-on bonuses, referral bonuses, tuition support, tuition reimbursement, shift differentials, and twice-annual raises. The company’s wage scales have increased by almost 30% since the start of the pandemic, she added.

Cindi Janzing, Social Services Coordinator, Good Samaritan Society Miller 

Janzing used her letter to lay out the “grim events” that could happen in rural Miller, SD, should the community’s lone nursing home, a 5-star, 50-bed facility, be forced to comply with RN hiring standards and face closure. Ads for a permanent night shift nurse at the facility have gone unanswered by qualified candidates for three years, Good Sam officials have previously noted.

“There are 40 people that are housed and cared for here. They would be without a place to reside,” Janzing wrote. She went on to recount her work of relocating residents in another rural facility that was forced to close because of staffing shortages and rising costs.

“The difficult task for a resident to relocate after spending their entire life in the same community was heart-wrenching,” Janzing warned.

She asked CMS to consider seven changes to its proposal, ranging from the use of virtual RN support of overnight LPNs in small facilities to loan forgiveness to policies that address the explosion of agency nurse use in skilled nursing facilities.