PHCA-CMS- Minimum Staffing Comment Letter

Allied Services is a proud member of the Pennsylvania Health Care Association (PHCA) and a dedicated provider of the highest quality skilled nursing care. The following is a letter from PHCA to the Centers for Medicare and Medicaid Services (CMS) on October 30, 2023. 

October 30, 2023

Centers for Medicare and Medicaid Services

U.S. Department of Health and Human Services

Attn: CMS-3442-P P.O.

Box 8016 Baltimore, MD 21244-8016

Re: CMS Proposed Rule 2023-0144-0001 – Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting

Dear Administrator Brooks-LaSure: Please accept the following comments on behalf of the Pennsylvania Health Care Association (PHCA) and the members we serve regarding the Centers for Medicare and Medicaid Services (CMS) proposed rule, Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting (CMS-2023-0144-0001).

PHCA represents 450 long-term care facilities throughout the Commonwealth of Pennsylvania, including nursing facilities, assisted living communities, and personal care homes. Our member providers include for-profit, non-profit, and government-run (state and county) organizations.

Pennsylvania currently has 675 licensed nursing facilities –– 267 of those facilities are represented by PHCA.

On behalf of our members and the entire long-term care continuum in Pennsylvania, we write to strongly oppose the national minimum staffing standard that CMS has proposed.

One Size Does Not Fit All

What is especially alarming to our association and membership regarding this proposed staffing minimum is the assumption that every nursing facility operating across the country is the same, and a one-size-fits-all approach to staffing will meet the goals of the Biden Administration and ultimately improve the quality of resident care.

To be clear: this mandate will have the exact opposite effect.

In fact, CMS stated in the preamble of the Medicare and Medicaid Programs; Reform of Requirements for Long-Term Care Facilities final rule that staffing is a complicated issue and a “one-size-fits-all” standard is not the best approach. We are disappointed that CMS would also renege on a previous decision and not consider its very own analysis that stated there is “no single staffing level that would guarantee quality care.”

Nursing facility residents do not have identical needs, and states do not have identical regulations or funding mechanisms. Yet, CMS is proposing arbitrary staffing minimums that will only create more challenges in states that already have staffing standards and limited funds to meet the needs of the growing Medicaid-reliant population.

So, whether it’s 3.0, 3.48, or a 4.1 PPD, a national staffing minimum simply does not make sense for long-term care providers, workers, and residents throughout the United States.

Pennsylvania Increased Nursing Home Staffing in 2022

It’s important to note that, here in Pennsylvania, this work has already been completed. Last December, after a robust and rigorous public process that included collaboration among long-term care providers, trade associations, the workers’ unions, and elected officials, the Pennsylvania Department of Health promulgated new, increased staffing mandates for nursing facilities operating in the commonwealth. The new requirements increased the required hours of general nursing care per resident per day from 2.7 hours to 3.2 hours (effective July 1, 2024). The regulations also established staffing ratios by shift for Registered Nurses (RN), Licensed Practical Nurses (LPN), and Nurse Aides (CNA), which will increase incrementally over a 2-year period.

This approach to enhancing resident care was also met with commensurate Medicaid funding for long-term care providers –– an essential component for raising staffing minimums. However, while the first phase of the increased staffing minimums was appropriately funded, the second phase (year 2) has yet to receive matching funds.

Pennsylvania providers are already operating at -12% margins and must somehow pay for more staff –– and higher wages –– to meet our new state standards. But if our own state governments are unwilling to fund the mandates their own regulatory bodies put into place, is there any chance they’ll fund a CMS mandate the federal government refuses to pay for?

Since July 1, 2023 –– the start of Pennsylvania’s new staffing requirement –– nursing facilities have been able to meet and, in some cases, exceed the general nursing hours per resident per day and ensure continuity of care for their residents.

However, providers are struggling to meet specific staffing ratios per position per shift, simply because the availability of qualified workers for each position varies greatly from community to community –– and, in some areas, those qualified workers simply don’t exist. This is exacerbated further by staff call-offs, no-shows, and the growing dependence on unreliable and costly agency staff.

Even prior to July 1, 2023, nursing facilities were forced to limit their census, pay inflated staff rates, and lose dedicated staff because of changes to the overall workforce environment. Those challenges have grown immensely as a result of the enforcement of higher staffing ratios.

Already on the path of an unsustainable trend, the CMS proposal will prove to be disastrous for the entire long-term care continuum.

The Workforce Crisis Cannot Be Solved By Government Mandate

Though there is a very real workforce crisis in Pennsylvania, our members continually employ innovative steps to recruit and retain staff. And while some nursing facilities have made progress in hiring and limiting the use of agency staff –– at the cost of limiting admissions to meet staffing requirements –– a very shallow labor pool still exists.

To add yet another burden on top of existing state staffing requirements will only serve to exacerbate the utilization of contract agency staff. The price gouging and predatory tactics utilized by certain staffing agencies will soar, leading providers further down a path of financial ruin because our governments choose to inadequately fund their own service: Medicaid. Continuity of care, meanwhile, will become non-existent, as full-time employees step aside for part-time agency workers.

Additionally, based on Pennsylvania's Q1 2023 PBJ data, only 11% of our 675 nursing facilities would meet the proposed RN HPRD, and only 3% would meet the CNA HPRD. In order to meet the new minimums, Pennsylvania providers would need to hire an additional 900 RNs and 2,600 CNAs –– that’s in addition to 4,000 CNAs that nursing facilities must hire in order to meet the increased state staffing ratios effective July 1, 2024.

We have a simple question: where will all these RNs and CNAs come from?

With RN and CNA workforce shortages occurring throughout the country, we feel it is important to recognize direct care provided by all staff, including physical, occupational, speech, and respiratory therapists; dieticians; activities staff; wound care nurses; and social workers. In order to maintain many of our residents’ psychosocial well-being, and to provide a fully encompassed care plan, a significant portion of direct care is provided by these positions.

In fact, including these services provided by other direct care staff positions aligns with CMS’s own definition of “direct care staff”. See 42 CFR §483.70(q)(1) (relating to administration):

“Direct Care Staff. Direct Care Staff are those individuals who, through interpersonal contact with residents or resident care management, provide care and services to allow residents to attain or maintain the highest practicable physical, mental, and psychosocial well-being. Direct care staff does not include individuals whose primary duty is maintaining the physical environment of the long-term care facility (for example, housekeeping).”

These staff members are spending a substantial amount of time with residents in developing and carrying out care plans that meet their person-centered needs and preferences. So if CMS does, indeed, move forward with a staffing minimum, we recommend these staff positions be considered and included.

Facility Assessments Matter

Historically, CMS has recognized that each nursing facility is unique, given the residents they serve, the competencies of staff, their operations, their physical plant, and the innovative technologies available to the facility. We implore CMS to maintain that position and not undo the good work that has been done in Pennsylvania and allow each state the autonomy to implement staffing standards at the state level.

PHCA fully supports the CMS approach of developing tools and mechanisms, such as the facility assessment process, for nursing facilities to methodically assess the level of staffing needed to provide quality care to the residents they serve. The federal rules currently require nursing facilities to conduct, document and annually review a facility-wide assessment, which includes both their resident population and the resources the facility needs to care for its residents. In Pennsylvania, as part of our updated regulations, nursing facilities are required to conduct a facility assessment at least quarterly. This provision ensures that nursing facilities are continuing to assess the needs of their residents, the competencies of their staff, and the level of staff necessary to provide quality care to their residents.

The facility assessment is a valuable tool and should be used as intended: to assess whether a facility has appropriately considered census and resident acuity to determine the number and competency of staff needed to meet each resident’s needs.

What Government Should Do to Help

We know CMS recognizes the variances in staffing requirements across different states, as well as the variances in residents served by nursing facilities. A federal staffing mandate, then, appears to be counterintuitive.

Instead of issuing staffing mandates, partners in both state and federal government should work with stakeholders to take steps to implement thoughtful and creative workforce policies to address nursing shortages, attract competent and dedicated caregivers to our sector, and support the development of career pathways in long-term care. CMS should also collaborate with the long-term care community to shape a more positive narrative surrounding committed caregivers to assist with recruitment and retention.

Here in Pennsylvania, the fastest-growing demographic is our senior population. From 2020-2040, Pennsylvania’s population of adults 80 and older is expected to nearly double. Additionally, in the past five years, the number of low-income residents in need of long-term services and support has grown by more than 20% –– meaning more people are relying on Medicaid to pay for their care. And to make matters worse, a University of Pennsylvania study assessed that the homelessness rate among adults 65 and older is projected to nearly triple by 2030 (from where the rate was measured in 2020).

Our ultimate mission is to care for our elderly and adults with physical and intellectual disabilities. This proposed rule will gravely hamper the mission at hand.

Additionally, serious consideration must be given to funding. Nursing facilities that serve a high Medicaid population will simply not have the financial resources to meet the CMS requirements –– especially in addition to existing state requirements.

Throughout 2022, 71% of the statewide days of care provided in Pennsylvania’s nursing facilities were paid for by Medicaid. On average, 75% of the residents served by our nursing facility members rely on Medicaid to pay for their care.

The additional costs associated with this proposed staffing mandate –– approximately $500 million more per year for workers, increased reliance on agency staff, recruitment, training and retention –– would be added to a Medicaid program in Pennsylvania that has historically underfunded nursing facility reimbursement. Unless the state commits to funding that increase, nursing facilities will be forced to further limit their admissions or close their doors altogether.

If CMS Moves Forward…

CMS, as well as every regulatory and legislative body throughout the country, should start planning now for what will happen when a rapidly growing older population has nowhere to go to receive skilled nursing care. There is a serious crisis upon us, and this proposal will make the environment far worse for our providers, workers, and patients.

PHCA urges CMS to repeal this proposal. Instead, CMS should work with providers and stakeholders to improve the long-term care continuum, and allow individual states to implement policies related to staffing levels in a manner that will best serve their most vulnerable populations and ensure access to quality care.

If CMS does move forward with this regulation as proposed, mark our words: the end result will not be higher quality care in nursing facilities throughout the country; rather, we will see a dramatic loss of high quality nursing facilities –– especially in the Commonwealth of Pennsylvania.

Thank you for the opportunity to provide comment on the proposed regulation. If you have any questions, I can be reached at 717-221-7925 or at zshamberg@phca.org. Sincerely, Zach Shamberg President and CEO

Pennsylvania Health Care Association 315 N. Second Street Harrisburg, Pennsylvania 17101 phca.org | pennsylvania.carefortheaging.org