As many have noted, the federal government’s first-ever nursing home staffing mandate can be a very dangerous thing. Just maybe not for the reason that many have been portraying.
In one sense, we have a pretty traditional regulator-regulatee relationship.
The White House and its designated agency, the Centers for Medicare & Medicaid Services, have forced the action. To some, it is unconscionable that nursing homes have been overseen with essentially the Cub Scout motto of “Do your best” when it comes to staffing levels.
To those who would operate nursing homes, however, the mandate’s added administrative and hiring burdens are nothing less than an attempt to micromanage providers out of business. And that’s even before addressing where all the extra nurses could be conjured from if an operator felt it had enough funding for them.
So here we sit: The administration sticking its neck out to do what no other had done before it (“even the Obama administration didn’t do that”).
And at the same time, providers are sticking their necks out by doubling down on their poor-mouthing platform. The one-size-fits-all, unfunded mandate will put countless operators out of business, is the party line.
As always, arguments are peppered with exceptions and outliers. While one side may be 100% correct on one point, there are certain operators who may defy a stereotype. And that goes for generalities being tossed around by both hardline regulators and frightened operators.
As one high-up provider official told me earlier this year, the goal was to make the administration “own” its staffing rule so it could be held responsible for any carnage that resulted. The implication was that a finalized rule would drive many operators out of business, creating havoc for those needing long-term care services. And this was the stance back when the proposal was just 3.0 hours of direct care per patient day, not the 3.48 in the final version.
Eventually, the federal government would have a tattered, insufficient long-term care safety net, the provider theory went, and maybe still goes.
(Before we go any further, let’s be frank: The nursing home sector, though predominantly populated by for-profit operators, is a government subsidiary. Tax dollars overwhelmingly fund it, and government officials both appointed and elected regulate it. Nothing and nobody can stray too far off the path without official approval or punishment.)
So the game plan is/was to let regulators bear the blame when “their” nursing home industry shrivels. Hospitals would have fewer places to send their patients and the public would really start to take notice.
But one key thing has to happen for the dominoes to fall like that: A lot of providers have to actually close up shop and walk away for good.
Tricky business
It is indeed a dangerous game of chicken — for both sides.
For if nursing homes start closing left and right, there will be patient harm. It may be more subtle than the spread of a dangerous disease, but it could very well create another public health emergency (writ small — for now at least).
In theory, this would seem more likely than, say, even a few months ago. The final rule is tougher than the original proposal, with 16% more care hours mandated per patient day.
But the big question is: Will enough skilled nursing operators actually start to go belly-up or leave the business and not get replaced by some other operator?
In brief, if the final rule’s main staffing provisions go fully into effect in a few years and there’s not enough loss of skilled nursing capacity, this turns from being a dangerous game of chicken into more like a reputation-killing case of crying wolf.
Providers are a resilient bunch and have taken pride in bouncing back from many obstacles in the past. But surviving, even shrugging off, this latest threat could actually do extra harm. Providers have essentially said that a staffing mandate would create unprecedented carnage.
So now the intrigue builds.
What happens if free-market forces continue as they are wont to do in this country, and investors keep acquiring facilities? After all, our capitalistic society loves a dark horse to pull victory out of the jaws of defeat.
Given the billions of dollars currently in play in US long-term care, it would be foolish to think there won’t be certain players still looking to make a buck in this business.
So questions abound. Already, there are new, innovative efforts springing up to find and train more nurses to meet current and future demand. Will innovations save the day, as some believe, or only lessen a major blow to the sector?
And will the cynics be able to claim victory? Will owners actually will be able to “find” funds, possibly by dipping into their own take, as consumer-interest groups would have everyone believe is so very possible?
It seems that government, or at least the current administration (hint) is fully in the consumer-worker camp that believes providers are simply hoarding their reserves, able to save their own hides and hoping taxpayers will continue to foot as much of the bill as possible. We may find out how much of that thinking could be true in the not too distant future.
In most basic terms, it seems the biggest question has become: How much chicken scratch will operators be willing to put up with to stay in business?
Clearly, the feds believe they have the upper hand in calling their bluff.
James M. Berklan is McKnight’s Long-Term Care News’ Executive Editor and a Best Commentary award winner in the 2024 Neal Awards, which are given annually for the nation’s best specialized business journalism.
Opinions expressed in McKnight’s Long-Term Care News columns are not necessarily those of McKnight’s.
