Despite federal data showing that the COVID-19 pandemic contributed to massive job losses for nursing and residential care facilities – with the workforce 218,200 workers smaller last month than pre-pandemic – the Centers for Medicare & Medicaid Services (CMS) under the Biden Administration has proposed an unfunded staffing mandate for nursing homes.
This came after publicity over the agency’s own study finding no “clear evidence basis for setting a minimum staffing level” and acknowledging that “nursing homes are currently very challenged in hiring and retaining direct care workers, because of workforce shortages and competition from higher-paying agency positions.”
In 2016, CMS, under the Obama Administration, acknowledged in a 184-page rule that mandating staff ratios would have the effect of “stifling innovation, and would not result in the improved quality and person-centered care that we seek in facilities.” It warned, presciently, with respect to a suggested 24/7 registered nurse requirement, that “geographic disparity in supply could make such a mandate particularly challenging in some rural and underserved areas.” It stated it did “not agree that a ‘one size fits all’ approach is best.”
Yet, seven years later, the Biden Administration is embracing that approach and also requiring 24/7 RN staffing despite the well-documented shortage of RNs that has greatly worsened since 2016 due to retirements and the pandemic. Laughably, the administration boasts of the $75 million it would provide “to make it easier for individuals to enter careers in nursing homes[.]” This from an administration that, under one analysis, is letting its pet Medicare Advantage insurers overbill this year by $75 billion.
In a grotesquely demagogic USA Today op-ed, President Biden declared “we’re delivering a clear message to the nursing home industry: no more padding profits on the backs of residents and nurses” and impliedly blamed the sector for the fact that “more than 200,000 nursing home residents and workers died from COVID-19” – ignoring, yet again, the empirical finding that “older Medicaid HCBS recipients (ages sixty-five and older)” had a worse excess mortality rate.
This recurring blame game comes from a president who lavishly praised New York Governor Andrew Cuomo for “a helluva job” after his resignation, despite the well-documented tragedy of Cuomo having forced nursing homes to admit those positive for COVID-19 and then concealing the consequences. In contrast, Biden couldn’t spare a single positive word about providers in his USA Today diatribe.
After the prior administration many took hope in Biden’s promise that his administration would place its faith in science. He stated: “Science is discovery. It’s not fiction.” So why is this major policy change – to be achieved by administrative fiat and not congressional action – based on fiction? Why is it so nakedly political, and not empirical?
A nonprofit Catholic nursing home near my home was forced to spend $1.4 million last year on staffing agencies, which Biden refuses to crack down on despite a request from almost 200 House members. Would he have us believe this facility is “padding profits”? How about two county-owned New Hampshire facilities which, even while incurring budget-busting staffing agency costs, have wait lists of over 100 prospective residents apiece? One, with a wait list of 134, informed me that to meet the Biden mandate – even while keeping 50 of 150 beds offline – it would need to hire 30 full-time nursing assistants so as not to use an agency. Whether facilities are for-profit or nonprofit, access to care is already imperiled and workers are impossible to find.
After news of the mandate broke on Sept. 1, I conducted a quick survey of New Hampshire nursing homes, with half responding. To meet the mandate, 53% would restrict admissions, despite the nation’s second-oldest population, while 39% would use staffing agencies. The rest would simply close. Thus, it’s perverse that in the best-case scenario the Biden proposal would, in the name of “quality,” either deny care access or further enrich staffing agencies (and put more strangers by the bedside). In no way is the permanent direct care workforce expanded.
The Biden proposal is a regulatory Death Star aimed at nursing homes that is fatally undermined by its bad engineering. Let’s hope the resistance blows it up.
Brendan Williams is the president & CEO of the New Hampshire Health Care Association.
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