Senator John Tester

The introduction of a Senate bill intended to block the Centers for Medicare & Medicaid Services from implementing its proposed nursing home staffing mandate was met roundly with applause from providers Wednesday.

But whether it will stop the rule dictating registered nurse and certified nurse aide coverage “dead in its tracks,” as one co-sponsor boasted, is far from a foregone conclusion.

The widely anticipated Protecting Rural Seniors Access to Care Act, S. 3410, had been held up for weeks as Sen. Deb Fischer (R-NE) sought bipartisan co-sponsors. By Tuesday night’s  introduction, Sens. Roger Marshall (R-KS.), James Lankford (R-OK), Jon Tester (D-MT), Kyrsten Sinema (I-AZ), Joe Manchin (D-WV), Roger Wicker (R-MS), Susan Collins (R-ME) and Angus King (I-ME) had signed on.

“Nursing homes across the country face historic staffing shortages, and nowhere are those challenges more real than in rural states like Nebraska,” Fischer said in a press release issued Wednesday. “This mandate from the Centers for Medicare and Medicaid Services would force many facilities to reduce their number of patients or even close their doors for good.”

She said a legislative blockade of the staffing mandate would allow lawmakers and regulators time to find “a fairer solution that protects rural facilities.” 

The American Health Care Association, not surprisingly, endorsed the legislation Wednesday.

“This unfunded mandate threatens access to long-term care for seniors everywhere, but especially our nation’s rural and underserved communities,” the organization said in a statement. “It requires substantial resources that nursing homes simply don’t have to hire more than 100,000 additional caregivers that simply don’t exist, ultimately threatening to close nursing homes across the country. … We fully support this bill and look forward to working with Congress on more productive solutions.”

There is a possible path forward for the bill, given some Democratic support, particularly from lawmakers in largely rural states. And it aligns with a companion House bill filed in late September by Rep. Michelle Fischbach (R-MN). H.R. 5796 would prohibit federal officials from finalizing the CMS draft rule and convene a nursing home workforce advisory panel instead. 

The House bill had 17 co-sponsors, all Republicans, as of Nov. 28 and has been referred to the Committee on Energy and Commerce, and the Committee on Ways and Means.

In addition, nearly 100 national and state advocacy groups and healthcare provider organizations have signed on in support of the bills, Fischer’s office said. The questions now are whether the bills will resonate with enough lawmakers from non-rural states to advance through their respective legislative bodies — and how the White House might respond.

“I personally doubt that the administration will go to great lengths to rally around this effort because Democrats also seem divided on it,” said R. Tamara Konetzka, Louis Block Professor in the Department of Public Health Sciences and the Department of MedicineThe University of Chicago. “If there is bipartisan opposition, it may not be the battle to pick.”

But Steve Laforte, chief legal officer and executve vice president of corporate affairs for Idaho-based Cascadia Healthcare, said Democrats could instead “go on a hard offensive charge.”

“They have staked a fair amount of political capital on the issue, at a time, post-COVID, where the industry’s profile was already in the public eye,” he told McKnight’s Long-Term Care News in an email. “As we move along the demographic curve, the importance of the care increases, so that’s likely another reason to maintain a push. That concern noted, I do think the bill evidences a bipartisan response. … In a very practical way, that heartens me to the unlikeliness of the implementation of the rule without a great deal of further inquiry/study and/or dilution as to the negative impacts on the industry.”

Provider approved

Earlier Wednesday, Katie Smith Sloan, president and CEO of LeadingAge, applauded the Senate bill’s introduction and said it could help providers and states meet a shared goal of ensuring “access to quality care in nursing homes.”

“The CMS proposed nursing home staffing requirement is the wrong approach,” Sloan said. “By prohibiting this unrealistic and unfunded mandate, the Protecting Rural Seniors’ Access to Care Act will help to ensure older adults can get the care and services they need and also fend off more nursing home closures. It further offers a path to much-needed solutions by establishing a panel to address workforce shortages that are chronic throughout the sector.”

Nate Schema, president and CEO of the Good Samaritan Society, the  nation’s largest nonprofit provider of skilled nursing care, has more than 1,500 job openings across its mostly rural facilities. That’s about 20% of the providers’ workforce across 139 nursing homes.

Schema has met with several lawmakers in recent weeks to express his organization’s concerns with the rule, chief among them that less than 4% of locations could meet a condition of the rule calling for 24/7 registered nurse coverage.

“The bipartisan support for this bill reinforces that the proposed minimum staffing rule is out of touch with reality,” he said in a statement Wednesday. “It signals a broad recognition among lawmakers that the focus needs to turn to more meaningful solutions — like creating a path for virtual RN coverage in rural nursing homes and bolstering the nursing workforce pipeline.”

Konetzka, however, noted that the need to improve nursing home staffing is something “everyone agrees on.” The contentious issue continues to be the approach to making meaningful change.

“Although the research on the staffing-outcomes relationship is not perfect, there aren’t good substitutes to having enough staff. If we care about nursing home quality, we have to want higher staffing in most facilities. And if not now, then when?” Konetzka asked in an email. 

A member of the Medicare Payment Advisory Commission, Konetzka also wanted that providers’ concerns about their ability to meet the mandate “are legitimate.”

“In my opinion, the solution isn’t to throw out the proposed regulation but rather to fund it,” she said. “We have underfunded long-term care for a long time, and it’s unrealistic to expect substantially higher quality under those circumstances.”

Mandate ‘dead’?

In his press release, co-sponsor and frequent mandate critic Tester said the rule could result in “mass facility closures across Montana.”

“I’ve told the Biden Administration from the jump that imposing a burdensome one-size-fits-all staffing mandate simply won’t work for Montana’s rural nursing homes,” he said. “Our long-term care facilities are already facing severe workforce shortage issues, and this federal staffing mandate could force facilities to shut their doors. My bipartisan bill will stop this rule dead in its tracks, and I’m committed to working with my colleagues to address the nursing home workforce so we don’t leave rural seniors in the lurch.”

In September, Tester led a letter signed by 28 senators demanding the Biden Administration and CMS abandon a rule they had proposed just weeks before. It was part of a volley of intense lobbying of CMS from federal and state elected officials that followed the rule’s official publication on Sept. 6.

Some Democrats have lined up behind the mandate, but others have broken ranks on the presidential priority. Many of the loudest objections have come from providers in rural communities and their representatives.

But hiring has also been remarkably challenging in many more urban settings where direct care staff have more employment options. CMS itself has acknowledged those challenges, admitting that more than 75% of nursing homes could not currently meet the proposed requirements, regardless of location.  

“Urban nursing homes are also concerned about the labor market and ability to meet the mandate, so blocking the mandate might be popular among lawmakers from urban areas as well,” Konetzka said. “Or at least they might not be opposed, or willing to fight for the mandate.”

The Senate bill aims to bring voices from both rural and urban communities together to look for workforce solutions. An advisory panel including such stakeholders would submit a report to Congress that analyzes shortages and make practical recommendations to strengthen the workforce.

Coming after more than a year’s wait, the proposed rule would require nursing homes to provide 0.55 hours of direct RN care per patient day and 2.45 hours of nurse aid care. While the rule would go into effect in three years after being finalized, it gives an extra two years for rural facilities to get up to speed on the overall hourly rate. Rural facilities would have an extra year to meet the proposal for 24/7 RN coverage while all other nursing homes would have just two years after the rule is finalized to meet this requirement. 

The proposal drew nearly 47,000 formal comments, each of which requires analysis by CMS. Observers have said that will slow any final proposal from being issued, with some predicting any implementation is at least a year away.

In the meantime, LaForte thinks the advisory body called for in the Congressional legislation could unearth more workable solutions.

“I think we have gotten on legislators’ radar screens in a meaningful way to our benefit and applaud the bill as being very realistic,” he said.