A nursing home staffing mandate is a “death sentence” for facilities that could soon owe tens of millions of dollars in noncompliance fines in Rhode Island, according to a top advocate there.
Facilities can be required either to repay Medicaid funds or be forced by the state to freeze admissions if they fail to meet specific hourly requirements. Nearly two-thirds of the 80 nursing homes in the state were out of compliance for the first three quarters of 2022, according to the Rhode Island Health Care Association.
“Our worst fears about the bill are coming true,” association President and CEO John Gage told McKnights Long Term Care News on Monday. “It was a law that was well intentioned. More staff and better care are great, but it was unfunded and implemented in the middle of a global pandemic. It’s a death sentence.”
With the White House apparently ready to unveil details of a first-ever national nursing home staffing mandate at any time, providers nationwide are keeping an eye on situations like those in Rhode Island.
Rhode Island’s Nursing Home Staffing and Quality Care Act went into effect in January 2022. That year, it called for 3.58 hours of direct care per patient per day; 2.44 of those hours were required to be care performed by certified nursing assistants. This year, facilities must provide even more attention — 3.81 hours of direct care, and CNAs must perform 2.60 of those hours.
The state’s Department of Health issued letters Feb. 6 to nursing homes that were out of compliance for the second quarter, informing them of the fines and penalties they face. Fully 70% of the state’s 80 facilities were out of compliance, and the fines totaled $11.4 million, according to the association.
The smallest amount owed by an individual nursing home is still more than $29,600, while the largest is $1.07 million. Similar letters about third-quarter compliance are expected by the end of this month.
Gov. Daniel McKee (D) and the Department of Health gave the sector a major reprieve by waiving the fees and penalties for the first two quarters of last year. Without those waivers, the sector could have faced $60 million in fines for noncompliance in 2022.
The third-quarter punishments still loom over facilities, which are in the midst of a historic staffing shortage. There were 9,940 nursing home employees on Dec. 31, 2019, but just 7,963 two-and-a-half years later on June 30, 2022 – a 20% percent decrease – according to the Bureau of Labor Statistics.
“There’s just no willing people looking to fill these jobs,” Gage said. “It’s not that we don’t want to comply … we cannot comply.”
The language in the law restricts the number of hours that can be counted toward the staffing minimum. Gage said a facility could hire all registered nurses but still find itself out of compliance because of the law’s requirement that a certain number of hours be provided by CNAs. Registered nurses and licensed practical nurses who also perform administrative duties such as infection control or even nursing directors do not count toward certain hours.
Under the staffing law, facilities that are out of compliance for three quarters in a row face fines calculated at 200% of the calculated labor shortage expense, so nursing homes that find themselves out of compliance for another quarter could be facing monumental fines. Gage said that while some facilities managed to comply with the mandate for the third quarter, there are 50 that will find themselves at risk of the higher fines, plus face an automatic trigger for freezing admissions or having to repay Medicaid funds.
Gage said the association is working with the governor’s office and leaders in the House and Senate to pause any fines through the end of 2024 to give providers some breathing room from the uncertainty of whether waivers will be issued quarter to quarter. The Department of Health has little discretion in how it applies penalties, so the group also wants the law adjusted to help facilities that can prove they are actively recruiting and trying to retain workers.
“We’re asking,” Gage said, “that they look at the workforce issues before they start fining facilities into oblivion.”