McDermottPlus is pleased to bring you Regs & Eggs, a weekly Regulatory Affairs blog by Jeffrey Davis.
Click here and check the box at the bottom of the page to subscribe to future blog posts.
September 7, 2023 – If you recognize the first part of the title of the blog post, then we share the same taste in movies! The well-known phrase (which I modified slightly), “If you build it, he will come,” comes from my favorite movie, Field of Dreams, in which the main character, Ray Costello (played by Kevin Costner), builds a baseball field in order to bring his father’s favorite baseball player, Shoeless Joe Jackson, back to life. My version, “if you require it, they will come,” doesn’t refer to something quite as exciting, but it’s what the Centers for Medicare & Medicaid Services (CMS) aims to do with its new proposal to require long-term care (LTC) facilities to institute specific nurse staffing ratios.
CMS is concerned that documented shortages in LTC facility staff may jeopardize the quality of care that LTC residents receive, and the agency thinks that adding staff is crucial to improving patient outcomes. Thus, in its proposed regulation issued last week, CMS proposed three new staffing requirements:
CMS acknowledges that it may be challenging for certain facilities to reach these goals, so the agency proposes to phase the requirements in over time (three years for urban facilities and five years for rural facilities). CMS also proposes to allow for temporary hardship exemptions (one year at a time) for specific facilities.
By requiring more staff overall, CMS expects more staff “to come” and work at these understaffed facilities. However, unlike Field of Dreams, where Shoeless Joe Jackson and other players magically emerge once the field is built, LTC facility staff are unlikely to miraculously appear if and when the new requirements become fully effective. Although CMS states that it could have imposed even more stringent requirements (and some stakeholders believe that CMS could have gone farther as well), the proposed requirements could be extremely expensive for some facilities to implement. Overall, CMS estimates that the new requirements would cost the LTC facility industry $44 billion over 10 years ($3.4 billion for the requirement to have an RN onsite 24 hours a day, seven days a week, and $40.6 billion for the HPRD requirements).
Cost is not the only potential barrier to meeting these staffing requirements. As CMS noted, staffing shortages have historically plagued this industry, and they grew worse during the COVID-19 public health emergency. Nurses and other staff left to pursue other career options during the pandemic, and the staff who remained became increasingly burnt out, leading to even more departures. While staffing numbers have rebounded slightly over the last year, CMS still expects that 12,639 additional RNs and 76,376 additional nurse aides will be needed to meet the agency’s proposed HPRD requirements, before accounting for any exemptions. CMS stated in the proposed regulation that “some facilities may be challenged in hiring and retaining nursing staff such as registered nurses and certified nursing assistants due to local workforce unavailability, while others may need to improve pay and job quality in order to attract and retain staff, given competition from higher-paying positions or alternate career paths.” In other words, CMS believes that the jobs themselves must become more attractive for facilities to meet these staffing goals—and attractiveness does not only mean higher pay.
Making these jobs more attractive might be easier said than done. While CMS suggests that healthcare facilities could provide “incentives to recruit and retain LTC facility workers, help prevent burnout, make it as easy as possible for LTC facility workers to access behavioral health services, and improve the care that individuals receive,” it is unclear whether these would necessarily work. Some of the nurses who left to pursue other career options may not necessarily come back even if they could receive a higher salary and other incentives.
In order for these requirements to be attainable and effective, I believe that CMS must simultaneously tackle the underlying issues that lead to staffing shortages and provider burnout. These larger, more systemic issues not only plague LTCs but are also present in many other parts of our healthcare system. Their effects are real, and they can hurt both providers and patients alike. For example, in emergency departments, a multitude of factors have caused staffing shortages and higher rates of provider burnout and have ultimately led to increased waiting times and “boarding” of patients—a phenomenon where patients are stuck in the emergency department waiting to be admitted to the hospital or transferred to another facility.
Unlike in the movies, there are no simple, magical solutions to these problems. Curbing workplace violence, decreasing administrative burden and paperwork, and increasing funding for graduate medical education are some of the solutions that have been suggested, and each comes with its own set of challenges. Policymakers likely will need to work closely with hospitals, LTCs, physicians, nurses, patients and other stakeholders to develop meaningful reforms that are achievable. If together these groups are able to “build a field” that is more attractive and conducive to recruiting and retaining staff, perhaps the nurses will eventually come.
Until next week, this is Jeffrey saying, enjoy reading regs with your eggs.
For more information, please contact Jeffrey Davis. To access the full archive of Regs & Eggs, visit the American College of Emergency Physicians.
To subscribe to Regs & Eggs, please CLICK HERE.
