Proposed Federal Staffing Regulations "False Promise," LeadingAge NY Says in Comments to CMS

In comments on the proposed federal nursing home staffing regulations last week, LeadingAge NY called on the Centers for Medicare and Medicaid Services (CMS) to rescind the regulations until there are sufficient numbers of nurses and aides available to meet the requirements and Medicaid and Medicare reimbursement rates can support the staffing levels required. In the absence of these conditions, the association maintained that the proposed regulations represent a false promise to residents, families, and staff. LeadingAge NY endorsed comments separately submitted by LeadingAge National and highlighted the potential impacts of the proposed requirements on quality and access to care in NYS and on the viability of the state’s non-profit and public nursing homes. The association also shared lessons learned from NYS's implementation of infeasible staffing mandates.

Given severe staffing shortages and reimbursement shortfalls experienced by nursing homes, LeadingAge NY noted that the proposed federal regulations will inevitably lead to fines that will only drain nursing homes of the funds they desperately need to hire and retain additional staff. The association's analysis of the most recent Payroll-Based Journal (PBJ) data supports this conclusion – not a single non-specialty nursing home in NYS was able to meet the proposed hours per resident day (HPRD) levels every day in the first quarter of 2023. LeadingAge NY pointed out that, as the agency charged with setting Medicare rates and approving Medicaid rates – the two principal sources of nursing home payment – CMS bears the responsibility for ensuring that the requirements it imposes are funded, as well as feasible.

LeadingAge NY identified three prerequisites for the implementation of staffing mandates:

1. A sufficient number of trained and licensed or certified candidates, along with the systems to continue to train the workforce needed as demand increases, must be available to meet any numerical staffing requirements.
2. Medicaid and Medicare rates for nursing homes must be sufficient to cover current costs, as well as additional costs driven by any new staffing mandates.
3. Any staffing mandate must support person-centered, innovative staffing models and reflect the needs of residents.

The comments demonstrated that none of these criteria are met by the proposed regulations. For example, CMS estimates that 12,639 additional registered nurses (RNs) and 76,376 additional nurse aides will be needed nationwide to satisfy the requirements of the proposed regulations. The two-to-five-year timeframes for coming into compliance with the new requirements are not sufficient to enable the training, licensure/certification, and recruitment of all of these individuals. Moreover, NY's nursing home Medicaid rates cover only 75 percent of the cost of care at current staffing levels. Nursing homes are unable to compete with other employers due to their heavy reliance on Medicaid and Medicare and inadequate rates.

LeadingAge NY described the negative impacts on access and quality likely to ensue from the "one-size-fits-all" proposed staffing requirements. Its comments explained that the mandates will drive limits on admissions and discourage staffing models that are tailored to the needs of residents. The comments further explained that the hardship exemption and waiver options in the proposed regulations are too restricted to enable an appropriate balance between staffing levels and access to care. LeadingAge NY also opposed the exclusion of licensed practical nurses (LPNs) from the counts of HPRD, noting the reliance on LPNs in NYS for medication administration due to the State's failure to authorize medication aides.

The comments shared the lessons of NY's experience with state staffing mandates. A challenging labor market and inadequate reimbursement has led to widespread inability to comply and self-imposed limits on nursing home admissions. Moreover, the state requirements inhibit resident-centered staffing models and are threatening the viability of non-profit and government-sponsored nursing homes that are doing everything in their power to recruit and retain staff and comply with staffing requirements.

More than 20,000 comments were submitted on the regulations. CMS will no doubt proceed with an extensive review process. LeadingAge NY will update members on the status of the proposed regulations as the situation evolves.

LeadingAge NY's comments are available here.

Contact: Karen Lipson, klipson@leadingageny.org, or Darius Kirstein, dkirstein@leadingageny.org