CHICAGO — It almost certainly will take federal regulators more than a year just to review tens of thousands of comments they have received on a proposed nursing home staffing rule, inevitably delaying any form of implementation, the head of the nation’s second-largest aging services provider group said Monday.
“I think it’s going to take CMS a heck of a lot of time to read through all of those comments — 42,000!” said LeadingAge President and CEO Katie Smith Sloan, referring to a requirement forcing Centers for Medicare & Medicaid Services staff to analyze all comments before advancing a regulation from the proposed to the final stage.
“They have to read all of them, and that’s going to take months and months and months,” Sloan said in a meeting with McKnight’s editors during the first day of her organization’s annual meeting. “I suspect that it will be well past a year from now until we see anything in terms of a final rule. I can’t even imagine how they will come up with something between now and then. They have to reconcile that there are very, very divergent opinions around this.”
She said 450 meeting attendees submitted comments from the conference hall Sunday. That’s one indication that the Federal Register will continue to acknowledge more comments have been received, delaying a total for some time after Monday’s 11:59 p.m. close.
“I’ve never seen providers so engaged on an issue as this one, but those 42,000 are not all provider comments,” Sloan added. “There are a lot of consumer comments, comments from union members. But what this issue is doing is sort of galvanizing our senior living and nursing home community in a really important way of really thinking about what is quality and what does it take to get to quality.”
Sloan said she remains hopeful that commenters on opposite sides of the staffing mandate argument could find common ground — especially around the proposed rule’s lack of attention to the critical role licensed practical nurses play in nursing homes. But she also continued to express concerns that enforcing a minimum in one sector would put added pressure on the entire healthcare continuum, at a time when there aren’t enough laborers to fill open positions.
“In a sense, we’re all fishing from the same pool, right? We’re all looking for employees and every part of the continuum is facing staffing shortages,” Sloan said. “As we tighten the pool and drive more staff to nursing homes to meet whatever the standard may be, you’ve got to get these folks from someplace, unless you find a way to broaden the pipeline through immigration or other channels.”
When asked whether CMS was calling providers’ bluff on threats of large-scale closures in the case of a staffing mandate, Sloan said the agency needed to do a better job of mapping existing closures to understand current impacts, especially to the mission-driven and not-for-profit segment. Typically, such information has been charted only by state governments or associations.
“The hard fact is that our not-for-profit sector is shrinking,” she said during Monday’s opening session. “The shrinking nonprofit sector matters. It matters because contributing to the greater good matters. Being driven by values matters. Aligning with others matters. Meeting unmet needs matters and building deep roots in our communities matters.”
Sloan said the organization remained committed to lobbying on behalf of its nonprofit membership base some 60 years after its founding, even in a “volatile political environment.”
Too long a wait for rule?
Roberto Muniz, incoming board chair of LeadingAge and president and CEO of Parker Health Group, a not-for-profit, New Jersey-based aging services organization, said a lengthy delay could be a positive or a negative.
“A year is way too long, obviously, nerve-wracking to some extent,” he told McKnight’s. “You’re not sure exactly which direction it’s going. At the same time, it may be an opportunity to … share more about what we’re living every single day.”
Of course, a year’s delay put the final rule’s potential delivery right around the 2024 presidential election. Sloan didn’t offer a guess as to what a different administration’s CMS leader would do with the staffing requirements. But she did acknowledge that there is no requirement that the agency ever finalize such a proposed rule.
“It’s not about politics right now. It’s about what CMS decides to do,” she said, noting also that a “somewhat unusual” level of Congressional pressure on the issue could undermine the rule’s ultimate success.
In any case, she said providers must continue to innovate and look for new solutions and models that deliver care efficiently and in a high-quality manner as the nation’s demographics begin to shift dramatically older. Paying for that care, including resources to support caregivers, remains the sector’s major issue.
“The future of the millions of older adults whose lives we will touch in some way simply cannot be ignored,” she told her members in the morning session. “I remind our national leaders that there is lots of science-backed evidence about what it takes to add more healthy years to life, that there’s a widening gap between have and have-nots and a shrinking appetite, and frankly, little political will to address the funding shortfalls that stare us in the face every day.
“And I tell them the way we finance long-term care is simply unsustainable for our state and federal governments and for America’s families.”