Nursing home staffing mandates in three states could be a harbinger of the difficulties ahead for the Centers for Medicare and Medicaid Services when it implements a federal staffing mandate.
Illinois, Rhode Island and New York paused penalties for nursing homes that violate state staffing mandates as the respective governors feared the cost of compliance could force nursing homes to limit patient access or close their doors. Their experiences point to problems CMS could encounter carrying out a federal staffing mandate, but the agency is adamant its final rule will be workable for nursing homes.
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Still, the National Consumer Voice for Quality Long-Term Care is troubled by states pausing fines for nursing homes that violate staffing minimums and is concerned CMS could take a similar "wrongheaded position," said Sam Brooks, director of public policy.
The White House Office of Management and Budget began reviewing the final rule March 1. But an industry trade group said the mandate is not feasible when nursing homes need more than 130,000 workers to return to pre-pandemic workforce levels. In a survey released last week by the American Health Care Association, 90% of 441 operators polled said they have job openings they cannot fill, and half said they are limiting patient admissions.
Illinois, Rhode Island and New York cited similar concerns when pausing fines on nursing homes that violated staffing mandates imposed over the last few years. The states have not collected any fines.
Rhode Island enacted the nation’s highest nursing home staffing mandate at the start of 2022, requiring operators to provide 3.81 hours of care per resident, per day. Last December, Gov. Daniel McKee (D) suspended the law indefinitely through an executive order, saying the mandate would have cost nursing homes $60 million in penalties and resulted in facility closures if fines had been collected.
Illinois nursing homes would have faced even heftier financial penalties under the state’s staffing ratio of 3.8 hours of care per resident, per day, but Gov. J.B. Pritzker (D) paused fines on Jan. 1, 2023. The Illinois Health Care Association estimates the state’s 700 for-profit nursing homes would have collectively paid about $135 million from October 2022 to October 2023 if the Illinois Department of Public Health had collected fines.
“Fines of this magnitude can put a provider out of business,” said Matt Hartman, the association’s president and CEO.
New York will soon begin imposing fines on nursing homes that violate a 2022 staffing mandate after it was initially put on hold by Gov. Kathy Hochul (D) three months after going into effect. The state mandate requires nursing homes to provide 3.5 hours of care per resident, per day. Some nursing homes, including ArchCare, say the ongoing staffing crisis will make it hard to meet the mandate and are already preparing for the coming penalties.
ArchCare President and CEO Scott LaRue has budgeted up to $5 million to cover the nonprofit's first year of fines because he said it will be too difficult to hire the 325 additional workers needed to comply with the regulation. He said he hopes revenues from ArchCare's other operations, such as home care and senior living, can offset the cost of penalties.
The organization operates seven skilled nursing facilities in the New York City metropolitan area and has no plans to limit patient access due to staffing.
“I would only do that if I believed our staffing was inappropriate to care for the residents,” LaRue said.
But other New York nursing homes could limit access once fines are imposed, said James Clyne, president and CEO of LeadingAge New York, which represents nonprofit nursing homes. He estimates nonprofit and government-owned operators have already reduced the number of beds available to patients about 12% over the past five years due to staffing shortages.
Hartman also expects nursing homes in Illinois will close or limit access once that state begins imposing fines on July 1, 2025.
Both opponents and advocates of nursing home staffing minimums say states' enforcement challenges could be a warning for CMS.
Industry trade groups LeadingAge and AHCA said in emails the problems some states experienced enforcing staffing minimums are proof a federal mandate will not work without an increase in the healthcare workforce and additional federal funding for nursing homes to support more staff.
But CMS may have already planned for potential enforcement challenges as part of its rule, according to David Grabowksi, professor of healthcare policy at Harvard Medical School. He pointed to hardship clauses that exempt nursing homes from penalties if they are located in areas with worker shortages.
“You worry a little bit about how many exemptions they may have to give out if things are particularly tight,” Grabowski said. "How is that encouraging better quality care?"
Despite the challenges states have had enforcing staffing minimums, CMS said in an email it remains “unwavering in its commitment” to improve care in nursing homes. The agency said it believes the proposed requirements of the federal rule are “achievable and necessary and would hold facilities accountable for providing sufficient staffing.”
