A key Congressional advisory panel expressed deep skepticism Thursday over the proposed federal nursing home staffing mandate and whether it would address ongoing quality concerns in the post-acute care sector.

Members of the Medicare Payment Advisory Commission questioned the goal of the regulations and how they would work to drive quality, with some going so far as calling for a separate funding mechanism to support the sector’s hiring of round-the-clock registered nurses. 

The feedback came as commissioners reviewed a new staffing data analysis by MedPAC staff. They asked for more details on metrics that could help clarify whether the rule might help or hurt patients.

“This is a classic unfunded mandate and unfunded mandates just are fraught with all sorts of bad problems,” said Commissioner Scott Sarran, MD, principal at Triple Aim Geriatrics. “It’s subject to gaming, and this is an industry that unfortunately, despite the large number of well-intentioned actors, has a not-insignificant number of problematic actors. And every kind of metric like this is subject to gaming.”

Sarran also said the rule would govern a process, rather than promote a target outcome. And he argued adoption would lead to “unintended consequences … that we would need to be aware of, monitor for [and] guard against.”

“We’re likely to have some closures, and that may not be a bad thing in some locations, but … in other locations, particularly rural, that can be extremely problematic in terms of beneficiaries having access to needed services,” he said during the commission’s day-long meeting. “And there likely will be some. As a consequence, in turn, of closures, there’s likely to be a further shift to large for-profits who have the ability to game the system and survive the challenge.” 

While MedPAC analysts compared staffing by ownership type and by margin rates, commissioners asked principal Kathryn Linehan to further research how the rule could affect nursing homes in different geographic areas.

“I have an ongoing concern about how these policies are going to affect low-volume facilities, rural facilities. It would be very helpful if we could look at this data from a rural vs. urban perspective,” said Commissioner Lynn Barr, MPH. “I think it’s going to have some pretty crazy results, and we’re already very concerned about quality in rural SNFs.”

While Barr was uncertain whether hourly direct care rules for CNAs and RNs or 24-hour-a-day coverage by RNs would make more of a dent in quality efforts, she said the all-hours RN rule might be something “we pay for” as an add-on to the existing prospective payment model.

‘Murky’ aspects of rule questioned

Chair Michael Chernew, PhD, of Harvard Medical School, said the commission would not weigh in during the rule’s official comment period, nor take policy action this year. But he said members could consider further analysis to help determine whether or not to offer policy recommendations regarding payment issues tied to the rule. Chernew noted that the rule, like many covering aging services providers, affects both Medicaid and Medicare beneficiaries, while the commission is tasked only with advising Congress on Medicare-covered post-acute care.

R. Tamara Konetzka, PhD, a University of Chicago nursing home policy expert, underscored to fellow commissioners that the staffing mandate would not be an appropriate response to COVID-era concerns. Many believe that the rule’s genesis was the pandemic and quality questions that erupted as more than 160,000 nursing residents died.

“This was not a ‘bad apples’ problem, with low-staffed nursing homes having all the outbreaks and deaths,” she said, noting research has tied outbreaks only to facility size and community infection levels.

“The lesson there is, staffing, as important as it is, would not prevent the next pandemic,” she added. “It would not have prevented the last one.”

While she acknowledged that providers, staff, residents and all families all agree staffing needs to be improved, the distinction between high Medicare facilities, with many high-needs patients, and high-Medicaid facilities, with many long-stay but lower-need patients, complicates the quest for a single standard.

She said policymakers need more insight into those kinds of differences to understand whether the rule needs a payment element. As proposed, Konetzka said, the rule would serve as a “brute force test” of how much “extra” money might be in the skilled nursing sector. She said it’s hard to know whether staffing is limited by market forces or intentional understaffing is used to inflate margins, as has been widely alleged by nursing home critics.

“The underlying problems is these causal connections between these very different types of facilities and their staffing ratios just remain very murky,” Konetzka said.

Like others, she asked for more details on how the rule would affect access, and she specifically asked staff to research how the current proposal would impact the 75% of US nursing homes estimated to be out of compliance.

The commission’s updated research will be published along with other information about SNF payment adequacy in the body’s’ June 2024 report to Congress.