It’s the nature of this job to cozy up to public documents and mine their contents for previously undiscovered details, provider concerns and critical perspectives.
But nursing home operators, you’ve outdone yourselves this time. You’ve generated so many new public documents that it’s hard to even know where to start to dig.
Less than two months after the Centers for Medicare & Medicaid Services began accepting comments on its proposed rule on nursing home minimum staffing standards (which the agency formally refers to as the “Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting”), the Federal Register notched some 22,740 as processed as of Wednesday.
Now, those aren’t just from providers and owners who find the proposed rule and its stipulations regarding RN and CNA coverage too onerous. While the American Health Care Association launched a campaign to garner 10,000 provider comments opposing the rule, unions and consumer advocates also have mounted their own intense efforts to lobby the regulatory agency for tougher standards.
Since the website where the Federal Register posts its comments publicly isn’t searchable, it’s impossible to tell at this point just which side might be leading the pack. Or even how many sides (or how many different arguments from each) might be represented in those thousands of pages.
But even a series of random clicks shows skilled nursing providers are very well represented.
So do conversations I’ve had with executives of several major national chains: Not only are their leaders submitting comments on this rule, but so are thousands of building leaders and current staff members.
They, too, are sharing concerns about the current inability to hire in an extraordinarily tough labor market and their fears that more rules will only force more limits on access, and eventually, closures.
Others are highlighting immediate potential conflicts with state rules, such as those recently put into place in Pennsylvania and Illinois, to encourage higher staffing. Those efforts are structured differently and often incorporate LPNs (which CMS hasn’t included in its initial proposal for hourly direct care minimums) and spending requirements (which CMS hasn’t required at all).
Many major organizations often wait until the final day possible to submit comments on a CMS rule, this rule’s deadline being 11:59 p.m. on Monday (Nov. 6). That means we’ll see the total comment numbers continue to climb, hitting even more historic levels.
And that could mean we’ll also have a historic wait as CMS staff pore over every single piece of feedback, incorporating specific responses into any final rule it deigns to issue.
Could that process take three months, six months, even a year or more?
Will the powerful and heavy commentary grind the process to a halt? Could the immense conflict between operators, worker advocates and consumer groups leave CMS leadership flummoxed? Are they doomed to another round of inaction on the staffing issue if providers have done an adequate job of illustrating the threats of implementation?
The answers to those questions, after all, matter so much more than the number of people who felt compelled to write CMS.
The effort to sort it all out could lead to paralysis, much as it did in 2001 and under the Obama administration.
I doubt many nursing homes will be counting on that as they pick up a pen or take to the keyboard in the next few days. I also doubt they’ll be picking up a shovel to help CMS dig out any time soon.
Kimberly Marselas is senior editor of McKnight’s Long-Term Care News.
Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.
