Headshot of Sabra's CEO Rick Matros

The initial jolt of the newly proposed nursing home staffing mandate has softened little over the long holiday weekend and now those tasked with making it work — providers — are coming to grips with how to cope. 

Despite deep provider resentment over the mandate, there is little doubt it will take some enacted form. Now it comes down to how much provider advocates might get the toughest provisions softened.

Regulators’ call for 24/7 registered nurse coverage in every nursing home — triple the current eight-hour requirement — will take center stage, virtually all stakeholders agree.

And almost everyone commenting for this article expects the potential role of licensed practical nurses, who were essentially not mentioned in the rule, to come into sharper focus once the 60-day comment period ends Nov. 6.

Another, perhaps unintended, consequence of the proposed rule is that already overmatched state surveyor teams will be in for even more stress.

The biggest threat

Requiring an RN onsite for 24 hours every day is “100%” more challenging than the overall hourly requirement, Nate Schema, president and CEO of the Good Samaritan Society, told McKnight’s Long-Term Care News. He is especially concerned about small and rural facilities.

“I can’t help but to feel it’s going to 100% reduce access, and it’s going to require our seniors to go farther for care,” Schema said. “I think of our building in Bloomfield, NE. It’s a 5-star building. They run a staffing ratio of 3.1 [hours]. We’re trying to figure out how we could staff that 24/7 with an RN. It’s untenable … That is far and away what gives me heart palpitations out of the gates. I don’t know where these RNs are going to come from.”

It is a universally held view among providers.

“The comment period will completely focus on the RN provision, which itself is kind of silly. There just aren’t enough of them,” pointed out Rick Matros (pictured), the president and CEO of Sabra Health Care REIT, to McKnight’s.

While maintaining that “overall, we shouldn’t have the mandate at all,” Matros nonetheless said he was “feeling pretty good so far about where [the proposed rule] is.”

“My guess is that the industry will use [regulators’] own reporting against them, so that was really helpful that got leaked,” he said. He was referring to a CMS-sponsored report that was accidentally made public and quickly pulled back last week before the rule was officially released. Some observers think the report might have been purposely leaked by a government staffer sympathetic to providers’ concerns.

Report authors concluded there was not a way to establish definite staffing requirements that would guarantee success after considering data gleaned from visits with 75 providers around the country and numerous other interviews.

“The report was positive for us,” Matros said. “It was ‘one-size-doesn’t-fit-all.’ You prescribe these things and there’s no evidence it results in better care. So that thing was great for us.”

There are bright spots

Matros optimistically added that considering the rulemaking process, the actual implementation of any enforcement could take “until 2027 or 2028” before this “has any kind of impact.”

“The one thing that we got that I actually had kind of given up on was the good-faith provisions,” Matros said. “They’re critical because what happens on the ground anyway is a facility gets surveyed and they are not meeting the state requirements, but the outcomes are great. They do a really good job and they usually get a pass on the staffing because from the surveyor’s perspective, they’re not taking any inappropriate steps. On the other hand, if they see their staffing is short and the outcomes are bad, they kind of get their butts kicked, as they should.”

Exemptions to the minimum standards will be available in rare instances, but only when all four of the following criteria are met:

  • Workforce is unavailable, or the facility is at least 20 miles from another long-term-care facility
  • The facility is making a good faith effort to hire and retain staff
  • The facility provides documentation of its financial commitment to staffing
  • The facility has not failed to submit Payroll Based Journal (PBJ) data

A facility, however, will not be eligible for an exemption if it:

  • Is designated as a special focus facility (SFF), or 
  • Has been cited for widespread insufficient staffing resulting in actual harm or a pattern of insufficient staffing resulting in actual harm and has not been cited at the Immediate Jeopardy” level of severity within the 12 months preceding the survey where facility’s non-compliance is determined

One of the rule’s consequences is sure to be more pressure on surveyors, who already are stressed by worker shortages of their own and far behind in annual inspections in many states.

“It gives surveyors something hard and fast to look at,” Matros said of the waiver process. “No matter how tough a surveyor is, the last thing they want to do is the closing of a building. This gives them something hard and fast to look at and say, ‘We need this facility open to take care of these patients and they made a good-faith effort here’ — assuming the care is good.”

‘All options on the table’

Providers are still recoiling from Friday’s official announcement containing their proposed new responsibilities.

“This unfunded mandate, which will cost billions of dollars each year, will worsen this growing crisis,” said Mark Parkinson, president and CEO of the American Health Care Association, in a statement. “It requires nursing homes to hire tens of thousands of nurses that are simply not there. It then penalizes us and threatens to displace hundreds of thousands of residents when we can’t achieve the impossible. Already, hundreds of nursing homes across the U.S. have closed because of a lack of workers.”

Good Sam’s Schema said it feels like CMS is turning its back on residents, their caregivers and their communities. Waivers might be an option on a small scale, but so might voluntary decertification, he pointed out.

“Do you drop your Medicare certification so now you just become basically a state-operated nursing facility so you don’t have to meet those federal requirements?” he mused. “I think all options are on the table.”

States on the front line

While some states, such as New York and Pennsylvania have their own staffing standards that can teach lessons — sometimes ominous ones, providers there believe —  other states may feel like helpless bystanders. In the end, access to care may further suffer.

“Texas is already short thousands of RNs and CNAs. A staffing mandate will not manufacture these sorely needed direct care staff that quite simply do not currently exist and will not exist when this rule is proposed to be implemented,” said Kevin Warren, president and CEO of the Texas Health Care Association.

“For providers unable to meet staffing mandates, they will have no choice but to deny new patients, close units or entire facilities, creating access to care issues and further travel for loved ones, particularly in rural communities.”

A recent KFF study found Texas would be second to last in the US for the share of facilities that could meet a 3.0 hour per patient day standard.

“There are little to no people to hire — especially nurses,” added George Linial, Warren’s counterpart at LeadingAge Texas. “We are unclear where CMS thinks we can find more nurses, particularly in rural areas, but certainly not limited to those areas. Nursing homes compete with other healthcare sectors for staffing resources, and given our inadequate reimbursement system, long-term care just ends up coming up short.”

Systemic stumbling blocks

Nurses agree that creating a much larger, more qualified nursing workforce cannot happen quickly enough. Many feel that LPNs will ultimately play a key role in any final hourly mandate.

“The CMS minimal requirement of 3.0 doesn’t include LPNs. The industry will naturally cry foul and interpret this an assault on these essential clinicians,” said Steven Littlehale, RN, a gerontological clinical nurse specialist and chief innovation officer at Zimmet Healthcare Services Group. 

“Having personally worked with these extraordinary caregivers, I’ve seen their significant value. What are the barriers for an LPN to transition to become an associate degree RN? How can we eliminate some if not all of those barriers? Let’s put as much time there as with other efforts responding to this proposed rule.”

A top nursing official, however, reluctantly threw cold water on the idea of converting enough LPNs to RN status. Many LPNs do not have the time or inclination to pursue a four-year or even two-year program while working to support a family, she pointed out.

In addition, an impediment to increasing nursing numbers has been a lack of suitable instructors. Nursing schools have had to turn away tens of thousands of would-be students annually for lack of qualified teachers.

“We couldn’t be more thrilled with CMS supporting staffing by having $75 million to support tuition, scholarships and training said Amy Stewart, chief nursing officer for the 

American Association of Post-Acute Care Nursing. “But that’s going to take more than three to five years to phase in and fully implement that. There’s a lot that has to happen, and it doesn’t address the nurse-faculty shortage. Some of these schools have a waiting list of two to three years to get in.”

Stewart suspects that once the funding is invested in nurse-development programs, CMS will further raise the number of required hours per patient day. In fact, she’d be surprised if the total overall nursing hours figure doesn’t rise in the final rule, a belief many other stakeholders also have.

“We know there has to be LPNs in this mix. The 3.48 hours per patient day [an alternative mark that CMS is asking for comments on] includes them,” Stewart noted. 

She said a positive development is that director of nursing (DON) hours can be included in the RN total. However, she also said that 6,000 facilities don’t currently meet the proposed RN requirements and 10,000 don’t meet the nurse aide specifications.

Workers want even more

While some praised parts of CMS’ proposal as creative and apparently willing to hear all sides, it is nonetheless “off the mark,” believes Lori Porter, co-founder and CEO of the National Association of Health Care Assistants.

“Nursing home providers and CMS have worked to craft a regulation that has too many loopholes and at the very least lowers the expectations of what minimum staffing levels should be,” Porter accused. 

“Real change requires bolder action,” added Sherry Perry, chairwoman of the NAHCA board of directors and 35-year CNA. She said NAHCA would be submitting a beefed up counterproposal. 

To the surprise of no one, labor unions came out in favor of the mandate, which figures to increase nursing home employment figures. President Biden publicly gave a nod to union membership in an op-ed column on the issue that he wrote for USA Today.

Union leaders’ comments, along with consumer advocates’, are an indication of the stiff resistance providers will face while trying to get the proposed rule amended.

“Our country doesn’t have a shortage of good nursing home workers — just a shortage of good nursing home jobs,” said AFL-CIO President Liz Shuler in a statement that praised the administration for listening “to our concerns.”

“The days of irresponsible nursing home owners jeopardizing the health and safety of nursing home workers and residents must end now,” added SEIU International President Mary Kay Henry in an emailed statement. The rule comes at a time of “catastrophic crisis” reflected in long-term care patient and worker harm, she added.

In striking 180-degree opposition to Parkinson and AHCA’s aims, Henry vowed her group will push to have the rule “strengthened, finalized and implemented with rigor.”