Fifteen state attorneys general and 12 US senators have submitted separate group letters strongly supporting the proposed nursing home staffing mandate from the Centers for Medicare & Medicaid Services.
Their arguments come during a period of unprecedented scrutiny and controversy from the public and elected officials. Nearly 50,000 comments were sent to CMS before the comment period ended Monday.
The high-profile pro-mandate letters are counterpoints to a coalition of 15 Republican governors, who urged the Biden administration to reconsider supporting the controversial rule in an open letter dated Nov 1.
The AGs’ letter was particularly detailed and forceful in pushing back against opposition to the staffing mandate. The Nov 6 letter went further – advocating for tightening regulation loopholes and for even higher hours per resident day (HPRD) requirements for care workers across the board.
The AGs supported setting the HPRD requirements as suggested in the CMS mandate, but noted that the proposal for 3.0 total nursing hours per day still falls short of a 4.1 HPRD benchmark set by a peer-reviewed, CMS-commissioned study in 2001. They also expressed concern that the currently-proposed HPRD minimum would incentivize facilities already operating at a high level to cut costs by lowering their standards to simply meet the legal minimum.
LPNs in spotlight
The AGs also strongly encouraged CMS to include a minimum hourly requirement for LPNs — a measure currently omitted from the proposed rules.
“The proposed staffing requirement would permit nursing homes to operate with low or no LPN hours,” the AGs wrote. “This proposal could incentivize many nursing facilities to operate with only or mostly with RNs and CNAs … This approach, in turn, would result in the assignment of even more duties to already overburdened RN staff, which would cause even more RN turnover, as RNs would justifiably refuse to work in poor working conditions due to burnout or fear of losing their license from working under such conditions.”
AGs in Arizona, California, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, New York, Nevada, Oregon, Pennsylvania, Rhode Island and Vermont signed the letter.
Another letter, from a group of 12 senators, sent Tuesday, expressed similar support for the staffing mandate. While acknowledging the complexity of mandating staffing across the entire country, the senators expressed appreciation to the Biden administration for prioritizing senior care.
“The proposed rule takes a vital step towards ensuring residents receive this high quality care by establishing common sense staffing minimums and improving enforcement,” the senators wrote.
The senators also shared the AGs’ concern about LPNs: “LPNs provide essential bedside care to nursing home residents, and they are critical to the operation of America’s nursing homes. We urge CMS to include LPNs in the final rule.”
The group of senators was led by Bob Casey (D-PA), the chairman of the US Senate Special Committee on Aging, and by Ron Wyden (D-OR), the chairman of the US Senate Committee on Finance.
Operators fire back
Providers in Casey’s home state were quick to react to the Senate letter Wednesday.
“Elected officials stump for increased wages for workers, but they have failed to support funding for states to recruit and train new caregivers, let alone pay them higher wages,” Pennsylvania Health Care Association President and CEO Zach Shamberg said. “Perhaps they don’t realize that state and federal governments own the responsibility of paying for Medicaid care, which is the payor source for more than 70 percent of all nursing home care.
“If our elected leaders want to take a stance to support senior care, they should fund it,” he added.
Despite their pro-mandate stance, the letter-writing senators acknowledged rural providers will need special consideration.
“We appreciate the recognition in the proposed rule that staffing minimums may be difficult to implement in some areas of the country, such as rural areas,” the senators wrote, addressing a concern raised by the open letter from Republican governors at the beginning of November. “We encourage CMS to collect stakeholder input and incorporate flexibilities that reflect differences in workforce availability, facility size, and resident demographics as the agency finalizes the rule.”
CMS will have no shortage of such stakeholder input to consider, given the enormous number of comments that rushed in before the Nov 6 deadline.