A two-day spate of legislative action opposing the nursing home staffing mandate has some staunch supporters of the requirements feeling “very concerned” about the rule’s future.
Since late Tuesday, when hundreds of long-term care providers and their advocates took to Capitol Hill, federal lawmakers have introduced a bill in the Senate that could effectively rescind the regulations. They also asked for a new study of the rule’s effect on veterans’ homes.
At a quickly pulled-together press conference Wednesday, Reps. Jan Schakowsky (D-IL) and Lloyd Doggett (D-TX) joined with union members and leaders from AARP and Consumer Voice in hopes of pressuring more Republicans to embrace a pro-mandate viewpoint.
Doggett said he was “very concerned” about the formal introduction Tuesday night of a Senate bill calling for a congressional review of the rule published by the Centers for Medicare & Medicaid Services on May 10. About 30 Senators, most Republicans, signed onto the resolution of disapproval, including sponsor James Lankford (R-OK) and Jon Tester (D-MT).
Tester on Monday had promised attendees of the American Health Care Association’s Congressional Briefing that the bill — companion to a House resolution calling for a review — would soon be introduced. If both bills passed within 60 days of the CMS rule’s publication, they could reverse the CMS rule. But the final bill would require a presidential signature or enough votes to override a veto.
The House version, Doggett said, had already moved out of the Ways and Means Committee on a party-line vote.
“It’s just a matter of time before this hits the floor, and it will be very close,” Doggett warned.
Nursing home advocates said this week said they hoped getting enough Congressional votes for the disapproval might convince President Biden not to veto it. But they are also processing forward with other legislative workarounds and a federal lawsuit that argues CMS overstepped its authority when setting hourly direct care minimums and adding a new requirement for 24/7 registered nurse coverage.
‘Not a shortage’
Schakowsky and Doggett argued that there is no crisis in the direct care workforce.
“The workers who are standing with the residents of nursing homes are saying they want to be there. They want to have enough people to take care of everyone, and there is not a shortage of people who would do the job — except they need to get paid a decent wage,” Schakowsky said. “But we also see there are nursing home owners who want to reduce the number of people they pay in nursing homes.”
Schakowsky attacked private equity investment in the sector, which has been shown to touch about 5% of all facilities. Doggett, meanwhile, criticized the sector’s historic profit margins and neglected to address the cost pressures of COVID, inflation and labor demand. He acknowledged that there is no funding to support the rule, which is expected to cost providers between $4 billion and $7 billion a year.
“If the nursing industry can make the case that it lacks the funds, despite all the studies showing the profits that they’re making, we’d be ready to go to bat to see that the funds are made available,” Doggett said.
Two separate bills calling for major long-term care workforce initiatives — and funding them with billions of dollars — have yet to gain widespread support among lawmakers.
That disconnect is one reason AHCA and LeadingAge have joined together with a broad coalition of other aging services providers to demonstrate how the staffing rule threatens seniors’ access to care.
‘Unsustainable’ pressure on vets’ homes
Much of the focus at Wednesday’s event was on workers, but another fresh effort coming out of the Senate shows that lawmakers remain concerned about the long-term implications for residents, should facilities not be able to comply with the CMS mandate.
Sens. Kevin Cramer (R-ND) and Angus King (I-ME), members of the Senate Veterans’ Affairs Committee, late Tuesday revealed they had asked VA Secretary Denis McDonough to produce a report on the impact. The letter is in conjunction with legislation the senators authored that would require the same.
“Long-term care facilities in Maine, North Dakota and across the country have struggled to recover post-pandemic — we cannot simply will a new pipeline of healthcare workers into existence, and without staff to fill the required positions, many facilities face imminent closure,” the senators wrote. “Simply put – we are concerned long-term care facilities, including those serving veterans, may not be able to meet the new staffing requirements. … we have serious concerns the industry will [not] realistically be able to meet the goals of the Rule, let alone prevent massive widespread closures.”
At a separate event following AHCA’s Congressional Briefing Tuesday, Melissa Jackson, liaison officer of the National Association of State Veterans Homes, highlighted the challenges those who serve veterans are having. More than 150 state facilities serve about 14,000 veterans.
The administrator of the Vermont Veterans’ Home, Jackson has a waiting list of 60 vets due to workforce shortages. Where she once admitted a new resident two or three times a month, she’s now taking a new admission about once a quarter, if she’s “lucky.” That’s while spending $11 million a year on agency staffing to get RNs and other nurses on site.
“This is unsustainable,” she said. “Veterans need skilled care and we are struggling to keep our facilities open. The demand is only going to grow, and the mandate isn’t making this situation any better. It is not just about filling positions. It is about ensuring our veterans can access the care they need and deserve.”
Jackson asked for lawmakers to look for comprehensive solutions that address the labor and funding elements required for staff advocacy.
Consumer advocates, however, continue to push the message that the only way to improve care is by supporting the CMS minimum staffing standard.
“These are final rules,” Megan O’Reilly, vice president of government affairs for AARP, said at Wednesday’s event outside the Capitol. “Any attempts to weaken them would be taking something away from residents and staff.”
