With over 42,000 comments filed, 18,000 of which came from AHCA members and nearly 250 from Massachusetts, the Centers for Medicare and Medicaid Services (CMS) must now review each of these comments before acting on its proposed minimum staffing rule for nursing facilities. A process that may take years. We sincerely appreciate our members for participating in this vitally important advocacy. Mass Senior Care submitted comments in strong opposition to the proposed rule, citing evidence that it would negatively impact quality and access to care and threaten the viability of nursing facilities.
MSCA estimates that 85% of facilities will not meet the rule, which calls for an RN on duty 24 hours a day, and a minimum hours per resident day (HPRD) of .55 for RNs and 2.45 for CNAs. MSCA’s key concerns with the rule include its blatant exclusion of LPNs, the lack of funding necessary to implement the rule, and the lack of qualified individuals available to hire to achieve the HPRD. With a stubbornly high 21% vacancy rate for RNs, LPNs, and CNAs in nursing facilities across the Commonwealth, we estimate that 5,000 residents would need to be relocated because the absence of staff available to hire leaves no other option but to reduce census to achieve the HPRD.
The MSCA comments include the following recommendations:
- Withdraw the rule entirely as it is unrealistic and unattainable in the current labor environment, as well as completely unfunded; or
- If CMS insists on moving forward, first commit to the following 4 conditions:
- The minimum .55 RN and 2.45 CNA HPRD must include the critical hours of care provided by LPNs by distributing LPN hours based on the weights proposed in CMS’ rule – 82% of LPN hours applied to the Nurse Aide position (2.45 Nurse Aide HPRD/3.00 Total Minimum) and 18% applied to the RN position (.55 RN HPRD/3.00 Total Minimum).
- CMS must provide funding to cover expenses resulting from this mandate which totals $6.8 billion annually for the nation, and $200 million Massachusetts. CMS should require all state Medicaid programs pay for the full cost of Nursing expenses, a minimum requirement to ensure that facilities have the resources necessary to recruit and retain staff.
- CMS must provide workforce pipeline funding to recruit and upskill individuals through the CNA to LPN to RN pipeline. CMS must delay implementation of any minimum staffing standard until such time as a reasonably adequate supply of workers is available to achieve said standard.
- CMS must include RNs serving in supervisory roles in the proposed requirement to have an RN on duty 24 hours a day. We recommend that RNs available via telehealth and remote access count toward this requirement.
In addition to MSCA’s testimony, we are grateful that many partners joined in expressing concerns about the rule including, the Executive Office of Health and Human Services (EOHHS) Secretary Kate Walsh who emphasized the severity of the ongoing staffing shortage and asked that LPNs be included in the 3.0 HPRD requirement. The Massachusetts Health and Hospital Association (MHA) cited data regarding the significant backlog of hospital patients awaiting discharge to post-acute care due to staffing shortages, and expressed strong concern that the proposed rule would exacerbate discharge backlogs, further limiting access to care. The Home Care Alliance of Massachusetts (HCA) said staffing shortages in home care are causing agencies to decline new cases and added that the rule would negatively impact home care staffing because “all healthcare providers are vying for the same workforce, and compliance with this proposed rule would create new gaps in staffing elsewhere in the continuum.” The Small Business Administration (SBA) Office of Advocacy contributed 9 pages of critical comments including MSCA’s opposition to the rule’s one-size-fits-all approach and that CMS may have violated the Regulatory Flexibility Act, by underestimating the actual cost to nursing facilities, most of which are small business.
We are disappointed to report that Massachusetts Attorney General Andrea Campbell joined with Attorneys General in 14 other states to urge CMS to actually increase the HPRD requirement to 4.3. The AGOs letter takes aim at for-profit nursing facilities stating it “would incentivize for-profit facilities to reduce staffing.”
MSCA will continue its strong advocacy opposing the rule.