Federal regulators are in over their heads with the proposed first-ever nursing home staffing mandate, the former head of the Centers for Medicare & Medicaid Services said Wednesday.

She added, however, that there appears to be a strong window of opportunity for influencing how the final rule will be shaped and offered advice to providers hoping to make it more favorable.

Seema Verma also forecast that if a final rule is not issued by the end of the year, it could very well be put off until after the 2024 presidential election. With comments on the proposed staffing rule already topping 22,000 with five days to go until the cutoff, veteran observers said the chances of a final rule coming in the next two months seem highly unlikely.

Verma, who was the Centers for Medicare & Medicaid Services administrator during the Trump administration, also commented on the agency’s “real miss” with its current nursing home effort. She was the featured guest during a live broadcast interview hosted by LTC 100 Managing Director Tim Craig.

“I do think that what came out was more watered down than where they originally wanted to go because they did [finally] understand that, hey, this may not be as workable,” said Verma of the proposed rule’s Sept. 1 release. That occurred days after the leaked release of a CMS report undercutting the agency’s own position on issuing a mandate. “At the same time, they committed to doing something on this so they had to put something out.”

Currently a senior vice president and general manager at Oracle Corporation, Verma offered hope to anyone working to shape the proposal. It calls for 3.0 hours of nurse staffing per resident day split between CNAs and RNs, a figure providers think is too high and consumer advocates and organized labor deem too low.

“I think there’s still a lot of room for adjustment, a lot of room for influence about what’s workable and what’s not,” Verma said. “There’s a lot of implications for the rest of the industries that help with the ecosystem. Are they going to start doing this with hospitals? Are they going to start going down the line? I think they’re a little over their skis.”

How to exert influence

She said providers should do more than just submit comments on the rule to CMS, and not use form letters. Additionally, lawmakers should be contacted and pressured “because the Hill will weigh in on this as well.”

Appealing for changes on behalf of better patient care and access to services is more important than voicing worries about the potential loss of nursing home jobs, she added. 

“I think the real miss with this is they’re coming up with these staffing requirements based on data and, absolutely, the more staff, the more quality you’re going to get,” allowed Verma, who was a health system executive before being appointed at CMS. “However, what I think they’re missing is: What is the path forward with quality? You could potentially say we could have 100 people for one person [patient] and we still may not have quality.” 

She said that while regulators’ goal may be right, their methods are wrong.

“One of the things the regulations don’t contemplate is what’s the role of technology? If you put better tech in these facilities with censors and the ability to monitor patients with remote monitoring, it’s very possible you can address some of these quality issues without staff but with technology. That’s not factored in at all,” she said. “It may be better that we make an investment there, rather than make a staffing requirement. My recommendation would be that you guys lay out, ‘If you want to increase quality, here are some other things you can do, besides the staffing requirement.’”

Controversy could cause delay

As proposed, the staffing mandate has long phase-in periods. Two years for increased RN staffing levels and three years for overall staffing numbers in non-rural areas. One and two years longer, respectively, for rural areas.

But that’s only after a final rule is issued, and that could be as long as 18 months away, one major long-term care executive has offered. Verma threw more uncertainty into the equation Wednesday.

“Putting out something very controversial right before the election is not a very good idea,” the one-time political appointee noted. “There is a bit of a window now. They could potentially finalize it by the end of this year, and then if they don’t, then my guess is it does get pushed off. A lot of times you’ve seen them go forward — it depends on the level of controversy. This one has a big impact, though, all across the country so it’s very possible they may push it off and delay it.”

While Verma gave Republicans credit for being “more willing to work with the [nursing home] industry … trying to get there on that middle ground” in recent years, she also credited the current administration for making its priorities for dealing with nursing home operators clearly known.

She added that regardless of who wins the 2024 presidential election — Republican or Democrat — providers have a clear mandate themselves.

“My advice to the industry is: Have ideas, no matter which administration it is, no matter which leader it is. Good ideas are good ideas, and those are bipartisan,” she said. “If you’re able to say here’s what we should do and help guide policy makers, Republican or Democrat, you’re still positioned well, no matter who’s sitting there.”