A Biden administration rule setting minimum staffing levels at nursing homes has been hit with a lawsuit.
Biden’s regulation could require 80 percent of the 15,000 nursing homes certified for Medicare and Medicaid long-term care in the United States to hire more workers.
The industry is fighting the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services in federal court. In May, several Texas LTC facilities joined forces with industry trade associations and nonprofits, including the American Health Care Association and LeadingAge, to sue the federal government in the Northern District of Texas.
The suit argues the government overstepped its authority in issuing the rule.
No Enforcement Mechanism
How the federal government will enforce the rule is yet to be determined. The order specifies no penalties for violating the standards, and there are broad exemptions for nursing homes in areas with labor shortages.
The April 2024 mandate relies on states to increase staffing numbers, has no clear enforcement mechanism, and does not go into effect for five years.
‘There Aren’t Enough RNs’
The Biden rule will cause nursing homes to shut down, says Chris Jones, a senior fellow and vice president for health care policy at the Cicero Institute.
“Nursing homes will need to close based on this rule,” said Jones. “At a macro level, there aren’t enough registered nurses (RNs) to meet demand today.”
The need for onsite RNs and the amount of attention to patients are greater in a long-term care (LTC) facility than in a standard hospital, says Jones.
“The level of care within an LTC facility can be quite different, and this one-size-fits-all approach does not match the acuity of the nursing home resident,” said Jones. “Since COVID, many states have significantly reduced the use of contract or traveling nurses. They will likely need to do this again, but there is a finite supply of RNs, so all this does is drive the labor costs up.”
The rule will put pressure on state Medicaid programs and overall state budgets, says Jones, because Medicaid is “almost always” the number one payer in LTC.
Could Expand At-Home Care
“There is a silver lining in this rule,” said Jones. “It could force additional innovation and market entrants for HCBS [home- and community-based services], keeping people in their homes and reducing overall spending.”
However, Jones said, “a large percentage of families still provide home services with no reimbursement, and state rates for HCBS and payment for Qualified Service Providers (QSPs) are quite low.”
That means states’ payments for those patients will increase—if the family caregivers qualify.
“To qualify for Medicaid-reimbursed HCBS, individuals must meet the nursing home level of care,” said Jones. “This is another example of how shortsighted this rule is.”
Medicaid Dependency
The reliance on Medicaid, with private funding having decreased to about 7 percent of the total, is the main problem with the system, says Stephen A. Moses, president of the Center for Long-Term Care Reform.
“The fundamental, underlying problem is that skilled nursing facilities depend primarily on Medicaid for their revenue, and Medicaid pays too little to ensure quality access and care with so little revenue to work with,” said Moses. “With so little revenue, they are unable to pay sufficient wages to attract enough staff. The work in a nursing home is very demanding. They have to move patients around and turn them so they don’t get bed sores, locate them, bathe them. It’s actually very dangerous work.
“So, it’s a combination of factors that contribute to the so-called caregiver shortage that has occurred due to the way long-term care financing is set up in this country,” said Moses.
Conflicting Narratives
Common narratives from establishment outlets such as The New York Times and the KFF that “we’ve got people all across America spending down into impoverishment before they qualify for Medicaid” are false, says Moses.
“Totally untrue. No empirical evidence whatsoever,” said Moses.
“The way Medicaid works is you can have unlimited income if your medical and long-term care expenses are high enough because they deduct your private expenses from your income before they apply this low-income standard,” said Moses.
This makes the system much more expensive and is unfair to the truly needy, says Moses.
“If you’re poor, you don’t have much income and assets, you qualify under the most draconian rules, and you’re on Medicaid,” said Moses.
“But guess what? You get whatever Medicaid can supply in the neighborhood where you live,” said Moses. “So it has created what the scholars in a growing literature, peer-reviewed literature, [describe as] so-called structural long-term care racism.”
Eliminating Exemptions
Medicaid, says Moses, is “an extremely corrupt system that punishes the very people—the poor and disadvantaged and socioeconomically marginalized groups—punishes them, while it rewards middle class and affluent people, not for planning ahead for long-term care, but for ignoring this risk and cost until they need it.”
The solution is to “eliminate all of the Medicaid rules that enable middle-class and affluent people to qualify for the program and to retain unlimited exempt assets,” said Moses. “In other words, we need to give Medicaid back to the poor people it was originally intended to serve.”
Harry Painter (harry@harrypainter.com) writes from Oklahoma.
Internet Info:
“AHCA Files Lawsuit Against Federal Staffing Mandate,” AHCA/NCAL, May 24, 2024: https://www.ahcancal.org/News-and-Communications/Press-Releases/Pages/AHCA-Files-Lawsuit-Against-Federal-Staffing-Mandate.aspx
“Nursing Bad Policy, Paragon Health Institute, May 13, 2024:
https://paragoninstitute.org/paragon-prognosis/nursing-bad-policy/
“LTC Bullet: What If the LTC Market Were Free?,” Center for Long-Term Care Reform, July 26, 2024: https://centerltc.com/bullets/latest/1386.htm