Long ago Congress required nursing homes to deliver 24-hour “licensed nursing services sufficient to meet the nursing needs of its residents.” That time-honored flexible standard continues after a federal Judge struck down CMS’ new minimum staffing requirements.
CMS’ 2024 staffing rule would have required all nursing homes to increase total hourly staffing for direct patient care and to have a registered nurse on site 24 hours a day every day. Those requirements replaced Congress’ “sufficiency standard” with rigid staffing ratios and tripled Congress’ 8-hour daily RN requirement. LeadingAge members, especially rural ones, are relieved flexible statutory standards have been restored and CMS’ “one-size-fits all” standard has been vacated. CMS’ standard would have been extremely difficult – if not impossible – to meet. For this reason, and other sound ones, LeadingAge joined a lawsuit to challenge part of CMS’ rule. In victory, LeadingAge CEO Katie Smith Sloan was thoughtful – “our nonprofit, mission-driven members—many of whom have served their communities for decades—understand the true essence of caregiving. Our stance has always been clear: imposing mandates rather than addressing funding adequacy and workforce sufficiency is wrong-headed.”
No one disputes that more caregivers can produce higher quality nursing home care. However, neither LeadingAge nor LA MO believe CMS’ rigid staffing ratios and 24/7 RN requirement are currently viable. CMS’s mandate arrived without funding to boost workforce development or to support financially struggling nursing homes desperate for caregivers to survive. Today, Missouri healthcare providers can’t fill large numbers of nurse vacancies. How can long-term care providers be expected to fill 1,600 RN positions to meet CMS’ staffing requirements? Even more depressing, data suggests Missouri’s nurse shortage will get worse before it can get better.
Moreover, even if enough RNs and CNAs were in the labor pool, most nursing homes cannot afford to effectively hire them. Medicaid reimbursement, work misperceptions, and job market economics put nursing homes at a competitive disadvantage to other employers. Further, CMS’ failure to fully incorporate LPNs into its nursing ratios make the rule untenable in Missouri, where LPNs comprise 60% of the long-term care workforce. Finally, most Missouri nursing homes simply do not care for residents at acuity levels that require 24/7 RN care. CMS’s rule dangerously treated all nursing homes as though they have identical needs and residents – regardless of nursing home size, location, or complexity of care provided. One-size-fits-all will not work!
In its lawsuit – and in a second suit brought by 20 Attorney Generals and 21 LeadingAge State Affiliates, including LA MO – plaintiffs argue that Congress legislated nursing home staffing standards and did not delegate authority to CMS to alter them, so the agency may not impose different staffing standards. Last week, a federal Judge agreed, ruling CMS may not “issue a regulation that replaces Congress’ preferred minimum hours with its own.” In addition, the Court found CMS is without authority to mandate hours per-resident-day ratios for all facilities – to set a baseline staffing requirement for all – that does not consider the “nursing needs” of a facility’s residents, as Congress directed. Because the Court held CMS lacked authority for its rule, the Court didn’t address our second argument – that, even if CMS has authority for its rule, CMS was arbitrary and capricious in formulating it because CMS ignored its own research (which failed to support rigid ratios) and CMS ignored prevailing market conditions making compliance impossible for many.
Reactions to LeadingAge’s judicial victory are mixed. While LeadingAge members applaud the result, consumer groups, unions, and some prominent politicians are upset. Their outrage is manifest in social media posts. LeadingAge does not relish political or public controversy, but we will not shy from advancing member interests. For this reason, and because other parts of the CMS rule were not part of LeadingAge’s lawsuit, LA MO will continue to press litigation and support legislation to roll back the rule completely.
We are committed to quality nursing home care. Many things contribute to it. Capable, compassionate caregivers in sufficient numbers are essential. But many LeadingAge members achieve 5-Star quality ratings with staffing levels below CMS’ staffing mandates. Leadership, innovation, technology, creativity, and resources all make a difference. So, LA MO will continue to work toward regulations that recognize all ingredients of quality care and rely on simple, flexible approaches that allow nursing homes of different sizes and locations – with varying healthcare labor pools – to meet the needs of residents with different levels of acuity. By this standard, CMS missed the mark, but that doesn’t mean we won’t work with regulators and legislators to find better solutions for nursing homes and their residents. That’s why LA MO exists!
Yours in service,
Bill