(Credit: katleho Seisa/Getty Images)

Mandate watch 2023 ramped up markedly Wednesday, following a series of events that appeared to signal the nation’s first federal minimum staffing requirement was about to be proposed after an 18-month process.

Observers noted early Wednesday that the Office of Management and Budget, which has been reviewing a proposal by the Centers for Medicare & Medicaid Services since May, had canceled planned meetings with stakeholders that were to be held the first two weeks of September. That came on the heels of the accidental online posting Tuesday of a CMS study commissioned to inform the agency’s proposal. 

The study gave the nursing home sector and consumer advocates their first solid insights to possible CMS strategies.

The proposed rule’s official status on the OMB website was still “pending review” by Wednesday evening, but that could change quickly, experts told McKnight’s Long-Term Care News.

“It’s definitely a time to keep an eye out,” one long-term care policy veteran confirmed. The policy expert refrained from calling a release “imminent” since the rule was still listed on the OMB website. Once it moves, however, it could be unveiled within a few days, in a week or later, the source explained.

A major nursing home chain representative told McKnight’s early Wednesday that its leaders heard the rule could come out “in the next day or two.” Others believe it could come at virtually any time, given regulators’ history of announcing proposed major rules late in the day or before holiday weekends.

The raised expectations come the day after CMS accidentally posted what it later called a “draft” report from a long-awaited staffing study ordered by the White House. The report was removed from the agency’s website and a leading agency official told McKnight’s in a statement Tuesday night that release of its proposals would come “soon.”

The heightened provider anxiety exists more than six months after CMS failed to meet its own deadline for announcing its staffing mandate plans. The report appeared to buoy providers’ claims that setting fixed staffing levels nationwide could be a nearly impossible task.

The study, which was first reported exclusively Tuesday by KFF Health News, said there was “no single staffing level that would guarantee quality care.” 

“CMS is in a tough spot. At the end of the day, they have a report that doesn’t support where they want to go,” a long-time Washington policy staffer told McKnight’s on background.

Consumer groups have railed long and hard for staffing minimum standards, which, in part, led to President Biden issuing ambitious reform plans at the time of his 2022 State of the Union Address.

In addition, on Wednesday Lori Porter, co–founder and CEO of National Association of Health Care Assistants, said CMS owed it to stakeholders “other than providers” to address their concerns.

“The CMS study on mandatory staffing that was accidentally released earlier this week favors the provider point of view that such mandates are not necessary for improved care and would cost too much for the nursing home industry to implement,” she said. “This represents what we speak of often at NAHCA — that CMS and nursing homes offer a closed loop when it comes to crafting rules and regulations, much to the detriment of nursing home residents and caregivers.”

Porter said a recent survey showed staffing shortages to be the highest concern among  NAHCA’s 26,000 CNA members.

Providers cheered by report

Provider advocates seized on parts of the report as fuel for their arguments against a nationwide staffing mandate, which they have said could cost nearly $12 billion extra per year to implement.

“The research findings released yesterday made it clear that a one-size-fits-all approach to staffing mandates won’t work. And now it seems that the Office of Management and Budget canceled its remaining meetings with stakeholders,” said Katie Smith Sloan, president and CEO of LeadingAge, the association of nonprofit providers of aging services, in an email to McKnight’s Wednesday morning.

“We hope this means that the Biden Administration is finally getting real on ratios by acknowledging that there are too few people to hire; the costs of delivering quality care far exceeds reimbursement; and a single staffing level cannot fit the needs of every resident nationwide,” she added. “Staffing ratios are not the answer; CMS needs a new approach to achieving consistent, quality care in nursing homes — and it must begin with meaningful solutions to the workforce crisis.”

The leaked study report examined the potential effects of mandating four different levels of nurse staffing, ranging from 3.3 to 3.88 hours per resident day. While that had consumer advocate groups up in arms since a 2001 CMS study had designated 4.1 hours per resident day as a desirable level, one long-term care policy expert told McKnight’s Wednesday that the CMS parameters studied were appropriate due to advances in long-term care processes over the last 22 years.

“The CMS’s 2001 study ‘gold standard’ of 4.1 hours per patient day actually falls somewhere within the four tiers of nurse staffing hours that were evaluated in the current staffing report after adjusting for the Multi-Factor Productivity Adjustment had it been used as part of the SNF Market Basket calculation for the entire period from 2001-2024,” said Doug Burr, reimbursement policy and research analytics consultant with Two-Bridge.

Burr also pointed out that the CMS/Abt Associates report authors specified that their work did not focus on the effects of implementing a minimum staffing requirement nor the effects of current worker shortages. He cited several passages in the executive summary of the report as particularly “interesting.”

For one, the study team estimated that “between 43 and 90 percent of nursing homes would need to increase staffing, relative to current levels, across the potential minimum staffing requirements” considered in the study.

“However, the Staffing Study was not a workforce study, and so did not comprehensively address the feasibility of implementing a minimum staffing requirement and did not review national  health care staffing shortages, health care workforce distribution, or access to health care training and education programs,” report authors noted.

As a result, providers should begin lobbying CMS to investigate workforce implications before making any policy moves, Burr emphasized.

“Conducting and preparing a comprehensive workforce study would require a significant amount of time and thus potentially create a lengthy delay in issuance or implementation of the staffing study,” he noted. “The government needs a workforce study to determine the feasibility of any of the potential recommendations from the staffing study.”

Analysts at accounting and consulting firm CliftonLarsonAllen predicted CMS would move forward with a proposed rule absent that information, although they agreed a more holistic understanding of economic and labor indicators was needed. Many providers have pleaded for waivers or exemptions that would ease the regulatory burden on providers in rural and other talent-strapped areas.

Chief Assurance Officer Cory Rutledge said the agency needs to understand how demographics would affect feasibility, taking into account both demand for and an area’s potential workforce.

“Step 1 is looking state by state to see the challenges, but you can’t stop there,” he said. “We really need to dial this in to look at it county by county. … I think if we were to do that, we would find vast discrepancies.”

In light of that missing information, efforts to sway policymakers, now and after a proposed rule emerges, should focus on sharing specific impacts, added CLA Principal Deb Emerson. Couched in light of possible hourly standards presented by the Abt, they could calculate current vacancies, additional staff needed and potential patient discharges if facilities cannot hire enough people. 

[Providers] are looking at that and they’re making strategic decisions about their organization moving forward, if this were to actually become a final rule,” Emerson said. 

Causes for concern

An OMB dashboard Wednesday showed two meetings on the proposal scheduled for Sept. 6 and Sept. 13 had been removed from the calendar. Several sources described those meetings as having been canceled. 

According to guidance regulating review by OMB’s Office of Information and Regulatory Affairs, reviews are generally permitted to take up to 90 days but can be concluded faster. Scheduled stakeholder meetings can be canceled if OIRA “concludes review on the regulatory action in advance of the meeting date.”

The last meeting appears to have been held Aug. 25 with representatives of the National Association of Rehabilitation Providers and Agencies, who advocated to have therapists included in any direct care calculations used in the mandate. The study leaked Tuesday only accounted for nurse and nurse aide hours. 

“One aspect of this policy that is concerning is that there is other direct care provided to residents in addition to nursing care,” said Cynthia Morton, executive vice president of ADVION, which represents therapy providers and other ancillary long-term care service operators. “Rehab therapy services are direct care and there are other types of care and it will be interesting as CMS rolls out their nursing policy to see whether it will provide a full picture to stakeholders of the care being provided in the facility.” 

While she noted that the leaked study was not a proposal in and of itself, LeadingAge Director of Nursing Home Quality & Policy Jodi Eygor told members on a call Wednesday that the study did make clear that Abt only looked at hourly nurse standards, not staff-to-patient ratios or the inclusion of other patient-facing workers in its study. That could signal the rule will do the same.

“Then again, that is only if CMS is actually basing the standard that they’re proposing on this report that Abt put together,” Eyigor said. “Whatever it is, we know that it’s going to cost us, and the bottom line is that there is no funding.”

The watch continues

The CMS staffing mandate has been called “the story of the year” by numerous stakeholders, increasing worries for a sector still deeply scarred by the pandemic and its devastating effects on patients and workers alike.

Previous to this week, Rick Matros, president and CEO of Sabra Health Care REIT, told McKnight’s that he did not expect any “draconian” outcomes from a CMS minimum staffing rule. On Wednesday, he was in a wait-and-see mode.

“The [leaked Abt Associates] report supports much of what the industry has said. For example, one size doesn’t fit all and doesn’t guarantee better quality,” Matros told McKnight’s in an email. “Who knows what comes now. We’ll wait for the rule and use the comment period to address concerns. The 3.88 [nursing hours per resident day] in and of itself isn’t the issue. When would it start? Would it be phased in? Would there be any carve outs? We’re just going to have to wait.”

Perhaps not for long.