The Center for Medicare Advocacy shined a spotlight on a 2017 rule that makes it possible for some facilities to maintain nurse aide training and competency evaluation programs through waivers from CMS even after those NATCEPs would have been suspended due to regulatory penalties or extended surveys. 

The Trump-era rule gave CMS the discretion to use case-by-case judgment to allow facilities to maintain their training and evaluation programs — a power which has proved contentious. 

“[CMS] has largely ignored the directive to strengthen the enforcement of standards of care for nursing facilities,” wrote Toby Edelman, Senior Policy Attorney at CMA, in a Dec. 14 article for the organization. “Instead, it has allowed Trump administration policies which explicitly overturned Obama administration policies and otherwise reduced enforcement, to remain in place. The Center for Medicare Advocacy calls on CMS to strengthen enforcement and protect residents.”

But staffing shortages across the country have left many in the long-term care sector frustrated by regulations that suspend the programs working to bring more care staff into the workforce. 

“In the midst of a historic labor crisis, allowing facilities the ability to offer CNA training programs to train crucially needed caregivers is exactly the type of workforce solutions we need,” wrote the American American Health Care Association in a statement to McKnight’s Long-Term Care News. “Now is not the time to take away critically important workforce development resources and programs, such as in-house CNA training.”

Some policymakers sympathize with that sentiment. A bipartisan House bill currently in committee would remove NATCEP suspensions for facilities that didn’t endanger residents, and also offer facilities more and simpler ways to reinstate their programs after correcting deficiencies.

AHCA and LeadingAge have endorsed the bill as a way to improve workforce numbers and quality of care nationwide.

Some experts have gone so far as to suggest CMS should stop suspending NATCEPs entirely until the staffing crisis has been adequately addressed.

“NATCEP programs are sometimes a key lifeblood for facility operations, providing needed advertising of the profession to potential CNAs,” wrote attorney Neville Bilimoria in a blog post for McKnight’s Long-Term Care News. “Taking that crucial program away from nursing homes is especially onerous for facilities trying to improve their staffing numbers in the midst of the very real shortage of CNAs.”
Staffing shortages and proposed regulation are set to continue as vital issues for the skilled nursing sector next year. Whether CMS continues to offer some leniency on NATCEPs or follows advocates’ suggestions and takes a firmer hand could have consequences for already struggling facilities.

Long-term care providers were intent on dismissing undesirable memories of the COVID-19 pandemic as much as possible in 2023, but the year’s top stories revealed there were still remnants of it to deal with — and plenty of other issues to fill the gaps.

From unprecedented, increased regulatory pressures to newly introduced legislation, ongoing workforce challenges, image problems and more, there was a lot to digest.

Here are the top stories that grabbed our readers’ attention in 2023, the top handful of them inevitably related to the staffing mandate and the sector’s ongoing workforce challenges.

Federal minimum staffing proposal dominates

By the time the Centers for Medicare & Medicaid Services finally issued its first-ever rule to set nursing home minimum staffing levels, the sector had experienced a roller-coaster of tense emotions. The Sept. 1 announcement put providers and their advocacy counterparts in labor and consumer groups in an uproar.

Operators called the proposal an impossible, unfunded mandate, if not because of the estimated $4 billion or greater price tag, then because there simply aren’t currently enough registered nurses to satisfy the tripling of current mandated levels.

‘Accidental’ early study release, Biden unloads on providers

President Biden added fuel to the fire when he unloaded on nursing operators just days after the staffing mandate was proposed.

The administration, however, was undercut a few days before the proposed rule’s release, when a “draft” of it was briefly posted online before being pulled down. That gave outsiders an early look at study findings saying it’s impossible to settle on a specific staffing level(s) that would serve the White House’s desired goal. Despite officials calling it a “draft” study report, it was nonetheless included in the same form when the proposal was released later that week.

The intrigue persists: Was it truly an accidental early posting, or was it the purposeful act of an insider sympathetic to providers’ year-long criticism that an unprecedented staffing mandate would be a bad idea?

Staffing mandate’s costs greatly underestimated: report

Three weeks after the staffing mandate was officially proposed, a respected third-party analyst hired by providers found that its cost would be nearly 60% higher than the $4 billion annual cost estimated by the Centers for Medicare & Medicaid Services.

Nursing homes would need to spend more than $6.8 billion annually and hire more than 102,000 new workers under its proposed form, said an updated analysis issued by accounting and consulting firm CliftonLarsonAllen.

Bills would block federal staffing mandate

Within five weeks of the staffing rule’s proposal, Republican House members proposed legislation to block it. A similar Senate bill, this one bipartisan, was proposed in December. 

The legislative efforts are being led by lawmakers in rural states, which figure to be most severely hurt by any new staffing standard.

CMS delivers 4% Medicare pay raise

Nursing homes received a higher-than-expected 4.0% increase to their Medicare Part A payments for fiscal 2024. The July 31 final rule from CMS added 0.3% — or $200 million — to the agency’s original April proposal. Inflationary costs were deemed responsible for the largest annual increase in recent memory.

In addition, most of the recommended vast changes to CMS’ quality reporting and value-based purchasing programs were retained in the final rule.

Biden plan would tie pay rates to staff turnover rates

In mid-April, President Biden signed a massive executive order that included several measures intended to improve access to long-term care and bolster job protections for skilled nursing workers. Among them were calls to expand on the then-undisclosed staffing mandate and to tie Medicare payments to staff retention.

The White House called the 50-plus elements the “most comprehensive set of executive actions any President has ever taken to improve care for hard-working families while supporting care workers and family caregivers.”

Nursing home ownership transparency pushed

Federal authorities made good on their promise to increase transparency from anyone owning a stake in nursing homes, or doing top business with them, with a rule finalized Nov. 15.

The rule imposes many of the ownership transparency measures outlined in a February proposal and defines both private equity and real estate investment trust owners. A coalition of 18 attorneys general fueled aspects of the rule with a plea for more ownership information.

Feds lift COVID-19 vaccine mandate that Supreme Court upheld

Regulators made big news in late spring when they announced they were acting to COVID-19 vaccination requirements for healthcare workers. The mandate had been upheld by the Supreme Court in a historic court decision in January of 2022.

Other vaccine requirements also were lifted with the end of the public health emergency on May 11. Booster shot rates have plummeted since.

Among the other big story lines

As the referring examples in this sentence indicate, the skilled nursing sector saw a growing number of providers shedding or closing facilities, or filing for bankruptcy as access worries mounted.

Meanwhile, as Medicare Advantage plans passed the 50% market share level for the first time, regulators made moves to impose more standards on them, with providers appealing for even more.

On Oct. 1, the largest overhaul to the Minimum Data Set in years became effective, capping a hectic year of planning and worrying.

Also on the federal regulatory front, authorities quietly put into place new, stricter measures regarding infection control and general vaccine immunization matters. They also continued to increase scrutiny of the use of antipsychotics and schizophrenia medications.

In other pandemic-related matters, a federal jury found that the nursing home that was the site of the first major COVID-19 outbreak in the US was not liable for the deaths of two residents. It signified one of a number of heartening court victories for providers accused of wrongdoing in the early days of the public health emergency.

More than 75% of nursing homes would not meet the proposed hourly requirements for registered nurses and certified nurse aides or 24/7 RN coverage if it were enacted now, according to the Centers for Medicare & Medicaid Services’ own rule. A KFF research brief issued weeks after the rule’s September proposal put that share even higher, at 81%.

That leaves somewhere between 19% and 25% of nursing homes that are already capable of meeting all three new standards. In addition, U.S. News & World Report last month published a list of 700 nursing homes (or about 4.6% of all those in the US) that meet both current requirements for eight hours of RN coverage five days a week, and proposed requirements for round-the-clock care.

McKnight’s Long Term Care News spoke with leaders of three facilities achieving the mark to explore how and why their operating conditions allow them to exceed national norms. Their experiences demonstrate how critical certain types of partnerships and reimbursement models could be in making higher staffing goals achievable nationwide.

Permian Residential Care Center, Texas

This 5-star, 90-bed nursing home is in the midst of oil country. When local seniors need care, they typically turn to Permian; there are no other skilled nursing facilities within a 25-mile radius.

That lack of local competition for the area’s few nurses, paired with the backing of a well-regarded, nonprofit community hospital have helped Permian maintain high levels of CNA and RN staffing. It staffs at 5 hours and 30 minutes of total direct care per day, according to CMS data, far surpassing the national average of 3 hours and 47 minutes. Permian beats national averages in the CNA, LPN and RN categories, too.

Being under the same umbrella and top-level leadership as the hospital makes it easier for Permian to operate fully staffed versus peers in a corporate structure with layers of regional overhead, Administrator Cydney Fulks told McKnight’s. 

“I think one of the things that helps us afford our nursing is we don’t pay a landlord fee. We don’t pay any operators’ cost because we are able to operate individually. We’re not paying a management company,” she said. “And if we need to make decisions here [about staffing], we’re able to have a discussion and go to our hospital CEO for the support that we need.”

Another major benefit that helps Permian recruit? The Andrews County Hospital District, the health system with which it’s aligned, has established level pay rates across settings.

“We don’t compete with the clinic for rates. We don’t compete with the hospice for rates,” Fulks said. “We have the same rates across the board, and I do find that to be very helpful whenever people are making decisions on where they’re going to work.”

Though Permian has a CMS-reported turnover rate of just 31%, it still dedicates resources to ensure leaders can more easily recruit when that’s needed.

Two local colleges offer clinical training at Permian, and Fulks said leaders aim to make those rotations educational and fun to expose students to the kind of activities regularly happening in nursing homes. The facility also runs a CNA training program, which it relied upon as it was staffing up a new 22-bed memory unit. 

During those in-house exposures, students experience a high nurse-to-patient environment.

“On my first day here, I thought they were having a staff meeting. There were so many people working,” Fulks recalled. “I didn’t know because it was my first day, but that was actually the staffing pattern. It alleviates a lot of burnout for there to be that many people.”

On a recent Wednesday afternoon, the building had 55 residents being cared for by six nurse aides, two shower aides and two restorative aides.

“They know that they can come to work and do a good job with their residents, and they’re not going to be stretched too thin,” Fulks said. “They can feel comfortable providing care because they know they’re not going to be one nurse providing for 50 people.”

And should Permian receive a sudden rush of patients, it only has to reach out to the hospital next door to find an RN quickly or get overnight coverage. Leaders work together on the ground to come up with long-term approaches and new strategies as needed.

“If we were in a different situation, like some of the communities around us, [the mandate] is going to be very difficult,” said Paul Slaughter, Permian’s certified medical director. “One, they don’t make their own decisions. Two, they’re going to say they don’t have the money. Three, if they have the money, it’s going to be somebody in Dallas or Houston making these decisions.”

While Slaughter has empathy for other facilities that may soon find themselves struggling to recruit and to afford anyone they can hire, he also believes a mandate may be necessary — especially for buildings without local control.

“In seeing the way these other places operate, if they don’t get given some direction on regulatory issues, they’re not going to do it. They’re masters at how to get around it anyway.”

Lorien Health Services Bulle Rock and Mt. Airy, Maryland

Lorien, with eight skilled nursing facilities across Northern Maryland, launched in 1977. Each  building has been built and continuously owned by the same family, and they are led by long-time CEO and President Lou Grimmel.

Two Lorien facilities made the U.S. News & World Report list of nursing homes that meet both the current RN daily coverage standards and the round-the-clock coverage proposed by CMS.

While both buildings have ventilator care units that require the presence of an RN or respiratory therapist at all times, Grimmel told McKnight’s that’s not the only reason its buildings have so many caregivers.

Higher staffing levels are part of the culture at Lorien, Grimmel said, although that comes with a steep cost that must be offset in some way. For now, it’s being borne by the owners’ tolerance to fund losses.

“We can’t make it work on the reimbursement itself,” he said. “We have ownership that cares and funds it, but how sustainable is that?”

Until COVID and its trailing inflationary pressures, the Lorien model worked because most campuses compensated for lower paying nursing home residents with a larger number of  Assisted Living units charging adjustable market rates.

Bulle Rock, which opened in 2018, was supposed to share its campus with a hospital that was never built and an assisted living component that was paused due to COVID. Instead, Lorien added a ventilator care unit there to help drive up reimbursements and support higher staffing levels.

“We can’t make it without it. We have to add something,” Grimmel said, adding that he’d like to work with the state on some kind of grant funding for behavioral health or other services that would help keep operations affordable.

He’s not surprised that so many newcomers to the sector cut staff to manage costs.

“What are you expected to do when your reimbursement stays basically consistent and because of the pandemic, your operating expenses, mainly labor, have skyrocketed?” Grimmel asked. “We don’t have a choice like the airlines to cancel flights. We don’t have a choice like the restaurants to close down tables. We have to get staff, regardless of what it costs us.”

But often, money isn’t enough to stem the tide. Sometimes, the right workers, especially RNs, simply aren’t available. Lorien is looking far and wide, but the federal government has stalled its efforts to bring in 31 new contracted RNs from the Philippines.

“We staff what we can get. It’s really that simple,” Grimmel said. “If we could get the RNs, we would staff all our buildings like Bulle Rock.”

But, Grimmel warned, not all owners will fund ongoing losses due to staffing, and none can do it without end. Even those driven by mission will need more financial support to survive, Grimmel said.

Government policies are too reactive, Grimmel said, noting the lack of funding for initiatives for senior care amid a rush of regulatory activity.

“Six of our eight facilities just won US News & World Report recognition. How are they doing it?” he asked. “It’s not because of the regulations. It’s because of our core principles.”

The Fall 2023 Unified Agenda sets September of 2026 as the deadline to finalize the “Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting” proposed this September. The rule would require nursing homes to revamp facility assessments; meet hourly thresholds per-patient, per-day for certified nurse aides and registered nurses; and staff RNs around the clock.

The Centers for Medicare & Medicaid Services received nearly 47,000 public comments on the rule, each of which must be reviewed by the agency before it can move forward with a final rule. The rule also asked for input on alternative approaches to minimum staffing, including a 3.48-hour direct care nursing requirement that could include licensed practical nurses.

Some provider groups have previously estimated that the process might take longer than a year.

But in the latest Unified Agenda — published on the web site of the White House Office of Management and Budget this month but not yet appearing in the Federal Register — officials with the Department of Health and Human Services indicate the review could take even longer. Federal rules allow CMS up to three years to finalize a Medicare rule, and the agency can seek an extension beyond that “under exceptional circumstances.”

While CMS didn’t offer a target date inside the three-year window, the agency said it did “not intend to delay publishing … if we are able to publish it sooner.”

“Strengthening high-quality services for older adults” is one of several priorities laid out by the Department of Health and Human Services in a preview of its rulemaking plans.

“Consistent with the Biden-Harris Administration’s Nursing Home Reform Action Plan, the Department’s Regulatory Plan includes efforts to improve the safety and quality of care in the nation’s nursing homes,” the plan reads. “For example, the Department plans to finalize rules that institute minimum staffing standards in nursing homes, protect residents, and prevent fraud, waste, and abuse, and mandate transparency of ownership, management, and other information regarding Medicare skilled nursing facilities and Medicaid nursing facilities.”

Attention: More changes coming

In addition to those known priorities, the agenda calls for development of a rule requiring staff in long-term care facilities to report to HHS and law enforcement entities “any reasonable suspicion that a crime has been committed against a resident of or an individual who is receiving care from such facility.”

It would also implement requirements of these long-term care facilities to notify such covered individuals of their reporting obligations and prohibit retaliation for making such reports. Rule violations could ultimately result in civil money penalties and exclusion from Medicare participation in federal healthcare programs, HHS said.

The department also said it would comply with a court order and establish new appeals processes related to the three-day stay requirement for skilled nursing coverage under traditional Medicare. HHS said it would create an avenue for appeal for Medicare beneficiaries “who are initially admitted to a hospital as an inpatient by a physician but whose status during their stay is changed to outpatient receiving observation services by the hospital, thereby effectively denying Part A coverage for their hospital stay.”

No timeline was given for that rule.

But whether it will stop the rule dictating registered nurse and certified nurse aide coverage “dead in its tracks,” as one co-sponsor boasted, is far from a foregone conclusion.

The widely anticipated Protecting Rural Seniors Access to Care Act, S. 3410, had been held up for weeks as Sen. Deb Fischer (R-NE) sought bipartisan co-sponsors. By Tuesday night’s  introduction, Sens. Roger Marshall (R-KS.), James Lankford (R-OK), Jon Tester (D-MT), Kyrsten Sinema (I-AZ), Joe Manchin (D-WV), Roger Wicker (R-MS), Susan Collins (R-ME) and Angus King (I-ME) had signed on.

“Nursing homes across the country face historic staffing shortages, and nowhere are those challenges more real than in rural states like Nebraska,” Fischer said in a press release issued Wednesday. “This mandate from the Centers for Medicare and Medicaid Services would force many facilities to reduce their number of patients or even close their doors for good.”

She said a legislative blockade of the staffing mandate would allow lawmakers and regulators time to find “a fairer solution that protects rural facilities.” 

The American Health Care Association, not surprisingly, endorsed the legislation Wednesday.

“This unfunded mandate threatens access to long-term care for seniors everywhere, but especially our nation’s rural and underserved communities,” the organization said in a statement. “It requires substantial resources that nursing homes simply don’t have to hire more than 100,000 additional caregivers that simply don’t exist, ultimately threatening to close nursing homes across the country. … We fully support this bill and look forward to working with Congress on more productive solutions.”

There is a possible path forward for the bill, given some Democratic support, particularly from lawmakers in largely rural states. And it aligns with a companion House bill filed in late September by Rep. Michelle Fischbach (R-MN). H.R. 5796 would prohibit federal officials from finalizing the CMS draft rule and convene a nursing home workforce advisory panel instead. 

The House bill had 17 co-sponsors, all Republicans, as of Nov. 28 and has been referred to the Committee on Energy and Commerce, and the Committee on Ways and Means.

In addition, nearly 100 national and state advocacy groups and healthcare provider organizations have signed on in support of the bills, Fischer’s office said. The questions now are whether the bills will resonate with enough lawmakers from non-rural states to advance through their respective legislative bodies — and how the White House might respond.

“I personally doubt that the administration will go to great lengths to rally around this effort because Democrats also seem divided on it,” said R. Tamara Konetzka, Louis Block Professor in the Department of Public Health Sciences and the Department of MedicineThe University of Chicago. “If there is bipartisan opposition, it may not be the battle to pick.”

But Steve Laforte, chief legal officer and executve vice president of corporate affairs for Idaho-based Cascadia Healthcare, said Democrats could instead “go on a hard offensive charge.”

“They have staked a fair amount of political capital on the issue, at a time, post-COVID, where the industry’s profile was already in the public eye,” he told McKnight’s Long-Term Care News in an email. “As we move along the demographic curve, the importance of the care increases, so that’s likely another reason to maintain a push. That concern noted, I do think the bill evidences a bipartisan response. … In a very practical way, that heartens me to the unlikeliness of the implementation of the rule without a great deal of further inquiry/study and/or dilution as to the negative impacts on the industry.”

Provider approved

Earlier Wednesday, Katie Smith Sloan, president and CEO of LeadingAge, applauded the Senate bill’s introduction and said it could help providers and states meet a shared goal of ensuring “access to quality care in nursing homes.”

“The CMS proposed nursing home staffing requirement is the wrong approach,” Sloan said. “By prohibiting this unrealistic and unfunded mandate, the Protecting Rural Seniors’ Access to Care Act will help to ensure older adults can get the care and services they need and also fend off more nursing home closures. It further offers a path to much-needed solutions by establishing a panel to address workforce shortages that are chronic throughout the sector.”

Nate Schema, president and CEO of the Good Samaritan Society, the  nation’s largest nonprofit provider of skilled nursing care, has more than 1,500 job openings across its mostly rural facilities. That’s about 20% of the providers’ workforce across 139 nursing homes.

Schema has met with several lawmakers in recent weeks to express his organization’s concerns with the rule, chief among them that less than 4% of locations could meet a condition of the rule calling for 24/7 registered nurse coverage.

“The bipartisan support for this bill reinforces that the proposed minimum staffing rule is out of touch with reality,” he said in a statement Wednesday. “It signals a broad recognition among lawmakers that the focus needs to turn to more meaningful solutions — like creating a path for virtual RN coverage in rural nursing homes and bolstering the nursing workforce pipeline.”

Konetzka, however, noted that the need to improve nursing home staffing is something “everyone agrees on.” The contentious issue continues to be the approach to making meaningful change.

“Although the research on the staffing-outcomes relationship is not perfect, there aren’t good substitutes to having enough staff. If we care about nursing home quality, we have to want higher staffing in most facilities. And if not now, then when?” Konetzka asked in an email. 

A member of the Medicare Payment Advisory Commission, Konetzka also wanted that providers’ concerns about their ability to meet the mandate “are legitimate.”

“In my opinion, the solution isn’t to throw out the proposed regulation but rather to fund it,” she said. “We have underfunded long-term care for a long time, and it’s unrealistic to expect substantially higher quality under those circumstances.”

Mandate ‘dead’?

In his press release, co-sponsor and frequent mandate critic Tester said the rule could result in “mass facility closures across Montana.”

“I’ve told the Biden Administration from the jump that imposing a burdensome one-size-fits-all staffing mandate simply won’t work for Montana’s rural nursing homes,” he said. “Our long-term care facilities are already facing severe workforce shortage issues, and this federal staffing mandate could force facilities to shut their doors. My bipartisan bill will stop this rule dead in its tracks, and I’m committed to working with my colleagues to address the nursing home workforce so we don’t leave rural seniors in the lurch.”

In September, Tester led a letter signed by 28 senators demanding the Biden Administration and CMS abandon a rule they had proposed just weeks before. It was part of a volley of intense lobbying of CMS from federal and state elected officials that followed the rule’s official publication on Sept. 6.

Some Democrats have lined up behind the mandate, but others have broken ranks on the presidential priority. Many of the loudest objections have come from providers in rural communities and their representatives.

But hiring has also been remarkably challenging in many more urban settings where direct care staff have more employment options. CMS itself has acknowledged those challenges, admitting that more than 75% of nursing homes could not currently meet the proposed requirements, regardless of location.  

“Urban nursing homes are also concerned about the labor market and ability to meet the mandate, so blocking the mandate might be popular among lawmakers from urban areas as well,” Konetzka said. “Or at least they might not be opposed, or willing to fight for the mandate.”

The Senate bill aims to bring voices from both rural and urban communities together to look for workforce solutions. An advisory panel including such stakeholders would submit a report to Congress that analyzes shortages and make practical recommendations to strengthen the workforce.

Coming after more than a year’s wait, the proposed rule would require nursing homes to provide 0.55 hours of direct RN care per patient day and 2.45 hours of nurse aid care. While the rule would go into effect in three years after being finalized, it gives an extra two years for rural facilities to get up to speed on the overall hourly rate. Rural facilities would have an extra year to meet the proposal for 24/7 RN coverage while all other nursing homes would have just two years after the rule is finalized to meet this requirement. 

The proposal drew nearly 47,000 formal comments, each of which requires analysis by CMS. Observers have said that will slow any final proposal from being issued, with some predicting any implementation is at least a year away.

In the meantime, LaForte thinks the advisory body called for in the Congressional legislation could unearth more workable solutions.

“I think we have gotten on legislators’ radar screens in a meaningful way to our benefit and applaud the bill as being very realistic,” he said.

The widely anticipated Protecting Rural Seniors Access to Care Act, S. 3410, had been held up for weeks as Fischer sought bipartisan co-sponsors. At introduction, Sens. Roger Marshall (R-KS.), James Lankford (R-OK), Jon Tester (D-MT), Kyrsten Sinema (I-AZ), Joe Manchin (D-WV), Roger Wicker (R-MS), Susan Collins (R-ME), and Angus King (I-ME) had signed on.

“Nursing homes across the country face historic staffing shortages, and nowhere are those challenges more real than in rural states like Nebraska. This mandate from the Centers for Medicare and Medicaid Services would force many facilities to reduce their number of patients or even close their doors for good. My legislation will stop this staffing rule and allow time to find a fairer solution that protects rural facilities across our state,” Fischer said.

Fischer’s bill mirrors one introduced in the House in late September by Rep. Michelle Fischbach (R-MN). H.R. 5796 would prohibit federal officials from finalizing the draft rule introduced on Sept. 1 and convene a nursing home workforce advisory panel instead. 

The House bill had 17 co-sponsors, all Republicans, as of Nov. 28 and has been referred to the Committee on Energy and Commerce, and the Committee on Ways and Means.

Katie Smith Sloan, president and CEO of LeadingAge, applauded the bill’s introduction and said it could help meet a shared goal of ensuring “access to quality care in nursing homes.”

“The CMS proposed nursing home staffing requirement is the wrong approach,” Sloan said. “By prohibiting this unrealistic and unfunded mandate, the Protecting Rural Seniors’ Access to Care Act will help to ensure older adults can get the care and services they need and also fend off more nursing home closures. It further offers a path to much-needed solutions by establishing a panel to address workforce shortages that are chronic throughout the sector.”

In his own press release, co-sponsor and frequent mandate critic Tester said the rule could result in “mass facility closures across Montana.”

“I’ve told the Biden Administration from the jump that imposing a burdensome one-size-fits-all staffing mandate simply won’t work for Montana’s rural nursing homes,” he said. “Our long-term care facilities are already facing severe workforce shortage issues, and this federal staffing mandate could force facilities to shut their doors. My bipartisan bill will stop this rule dead in its tracks, and I’m committed to working with my colleagues to address the nursing home workforce so we don’t leave rural seniors in the lurch.”

In September, Tester led a letter signed by 28 senators demanding the Biden Administration and CMS abandon a rule they had proposed just weeks before.

The rule, coming after more than a year’s wait, would require nursing homes to provide 0.55 hours of direct RN care per patient day and 2.45 hours of nurse aid care. While the rule would go into effect in three years after being finalized, it gives an extra two years for rural facilities to get up to speed on the overall hourly rate. Rural facilities would have an extra year to meet the proposal for 24/7 RN coverage while all other nursing homes would have just two years after the rule is finalized to meet this requirement. 

The proposal drew nearly 47,000 formal comments, each of which requires analysis by CMS. Observers have said that will slow any final proposal from being issued, with some predicting any implementation is at least a year away.

The Centers for Medicare & Medicaid Services is no different, and officials there have delivered an early gift to help providers like you map out where they should focus their compliance efforts — not just for 2024, but for 2025 as well.

In an otherwise very dry memo to state survey agencies Nov. 20, CMS prodded inspectors to focus on three core areas over the next two years. Federal surveyors will follow-up in those same areas to check that on-site surveys hit all the required investigative steps.

Not surprisingly, nurse staffing led that list. This will be central to the agency’s nursing home regulatory push, especially if it can somehow get a first-ever staffing mandate into final form and enact it in the next year or so.

CMS over the last two years has increased how much staffing information it collects and incorporated more of that data into its Five-Star ratings. Under Payroll Based Journal reporting will become even more critical, with the latest quarter of data determining whether facilities are meeting proposed per patient day hourly minimums for registered nurses and certified nurse aides.

That means, more than ever, that providers must capture fully and accurately their staffing levels and understand what might be excluded, and what won’t be.

CMS itself also is under more pressure to ensure staffing data remains a viable measure of actual hours worked. The Health and Human Services Office of Inspector General last month announced that it was adding a broad audit of PBJ nursing home data to its 2024 work plan.

And before that, we should get a look at how well CMS has used early PBJ data in having surveyors review whether nursing homes met the existing requirement for “sufficient” staffing. OIG said last January its aim was to push CMS to improve the enforcement of federal nursing home staffing standards by state surveyors. 

So it makes sense that CMS would want to shore up its data collection and reporting processes, and to make sure its inspectors know how to use what they find for compliance purposes. That know-how will lay the groundwork for measuring staffing success and giving providers the information they need for a waiver if their efforts are unsuccessful.

And for providers who fail to submit PBJ correctly or incompletely, let’s not forget that you won’t even be eligible to seek a staffing mandate waiver.

The other two focus areas shouldn’t necessarily come as surprises either.

Nearly a year after launching off-site audits of schizophrenia diagnoses, the agency wants its surveyors to follow up by poring over psychotropic medication uses that might be unnecessary.

CMS views antipsychotics as drugs of last resort. Emphasizing that state surveyors must pay close enough attention to their use is just a new way to keep pounding that message home.

Antipsychotic drug use and concerns about rampant schizophrenia diagnoses among elderly nursing home residents were two major areas hit on by CMS Director of Nursing Homes Evan Shulman on the conference circuit this fall.

So, too, was the idea that providers are too often invoking involuntary, facility-initiated discharges, particularly for patients with behavioral health or substance use disorders.

And that will be the third area of focus for federal survey follow-ups in 2024 and 2025.

Shulman himself has acknowledged just how tricky meeting the spirit of discharge regulations can be.

“[Discharges] are very, very complex, in that a discharge could happen and the resident may not agree with it, and that could be non-compliance,” Shulman explained. “But — and this is very important — a discharge could happen and a resident may not agree with it and it still could be a compliant discharge. It really just matters: Did the facility follow the regulatory structure?”

This is why it’s helpful to know what’s coming. The roadmap gives time to reexamine policies and procedures, reach out for more resources and get survey-ready — even for the most complicated issues. 

Don’t let the rest of the year dwindle away while you make resolutions for 2024. That fresh start? It can happen as early as tomorrow.

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.

Changes to Medicare Advantage slated to kick in Jan. 1 were designed to ensure plans extend their enrollees the same benefits and coverage as available to traditional Medicare beneficiaries. Specific revisions outline how MA plans could make coverage determinations, limit their use of denials and prior authorization, and place new limits on the use of digital technologies in deciding when covered care ends.

Based on mounting concerns from their members and patients covered under MA plans, five provider organizations joined with the consumer-oriented Center for Medicare Advocacy to demand that the Centers for Medicare & Medicaid Services issue specific subregulatory guidance to ensure plans can be forced to comply with the 2024 updates.

“More detailed guidance will ensure improved access to care for Medicare beneficiaries and clarity for providers,” representatives from the American Health Care Association, Leading Age and three other post-acute groups wrote in a Nov. 29 letter.  “At present, our provider members are hearing from MA plans that they don’t believe they need to do anything different based upon the final rule. This would suggest the intent of the rule is not yet clear regarding plan compliance obligations.”

The letter outlined issues they “anticipate will be encountered with the final rule implementation” and made a series of recommendations that they said would improve customer service and care for patients in post-acute care settings.

The letter follows an American Hospital Association letter to the CMS Medicare director alleging that MA insurers have told health systems they would not be changing policies to comply with the new rules. The association urged careful oversight to monitor for compliance and take response to any violations.

Circumventing rules’ intent

One plan issued guidance to its network providers indicating that it would continue using internal criteria beyond the traditional Medicare criteria to evaluate inpatient admissions, the AHA noted. The association also alleged some plans are making changes to the terminology they use in denial letters, a move that could be “intended to circumvent recent CMS rulemaking.”

“We are deeply concerned that these practices will result in the maintenance of the status quo … proliferating the very behavior that CMS sought to address,” wrote Ashley Thompson, senior vice president of public policy analysis and development for AHA. 

On the post-acute side, provider groups want CMS to tell plans exactly what they need to include in making their coverage determinations including CMS transmittals; the CMS manuals produced for each setting; the Jimmo vs. Sebelius ruling that found patients can be entitled to additional care even if they don’t show “improvement”; and facility assessments.

Among the assessment concerns, the provider groups said, is the fact that “MA plans are increasingly pressuring SNFs to down code the MDS level in violation of federal MDS documentation and coding requirements.”

“Plans are telling SNFs that they will not pay for the level of care identified by the in-person assessment and that the SNF should only submit a claim for reimbursement at a lower level of care it designates,” they wrote. “In other words, the plans are disregarding the outcome of Medicare-required assessments and forcing providers to accept a lower payment for these services or receive no payment at all. Requiring providers to submit inaccurate medical necessity information so plans can reduce the provider payment or threatening the provider with non-payment if the provider files a claim based on assessed levels constitutes fraud and should not be tolerated.”

Defiantly replacing human judgment

That letter also called on CMS to stop MA plans from overriding a physician’s determination of medical necessity. That was a topic of major concern for Congress earlier this year.

While the CMS effort to rein in plans’ questionable prior authorization and claim denial practices largely has been seen as a win for patients and providers, Celtic Consulting President and CEO Maureen McCarthy warns that nursing home staff will have to fight to ensure the revisions translate into changes for patients.

“The problem with the changes to the rule was there was no penalty that was imposed for the Medicare Advantage folks. When we have a final rule, the penalty will be non-payment, the penalty will be something getting denied,” McCarthy said during a Medicare Advantage webinar she hosted for the American Association of Post-Acute Care Nursing. “Now we have some rules in place, but I think we’re going to have to police a little bit to make sure Medicare Advantage is following the rules.”

Keeping patients where they will receive the most appropriate care, according to their physician’s assessment, is a major concern for the post-acute sector. The rationale that patients could be cared for in less intensive settings, despite physician notes saying otherwise, “violates plan rules and runs counter to the patients’ clinical needs, plans nonetheless continue to issue these types of inappropriate denials. It is therefore imperative that CMS issues sub-regulatory guidance that makes clear that the physician’s referral should be given deference and engages in enhanced oversight regarding plan authorizations and rationales.”

The letter also asked CMS to force plans to issue more detailed denial letters and place more specific prohibitions and limitations on the use of  artificial intelligence to determine whether care and services will be covered and the duration of that care received.