ICYMI: AHCA/NCAL's Porter: Bipartisan Opposition On Flawed Nursing Home Staffing Mandate Speaks Volumes

Advocacy; Legislative; Workforce
​​​In case you missed it, Clif Porter, senior vice president of government relations at the American Health Care Association and National Center for Assisted Living (AHCA/NCAL), discusses the growing bipartisan opposition to the proposed federal staffing mandate for nursing homes in a new op-ed published in RealClearHealth. The final rule from the Centers for Medicare and Medicaid Services (CMS) is expected to be released soon, despite continued concerns over the negative implications for our seniors. 
Porter underscores why staffing minimums are a flawed approach and urges administration officials to reconsider implementing a one-size-fits-all requirement that will be impossible to meet and will limit access to care for current and future nursing home residents. 
The piece also highlights various supportive measures being considered in Congress that will more effectively help nursing homes boost their workforce levels and ensure our most vulnerable have continued access to high quality care.  
Read the full op-ed below.  
Bipartisan Opposition On Flawed Nursing Home Staffing Mandate Speaks Volumes 
Clifton J. Porter II  
April 17, 2024 
Many Democrats and Republicans actually agree on something—a federal staffing mandate for nursing homes is problematic at best and dangerous at worst for America’s seniors. As nursing homes grapple with a historic labor shortage coupled with a growing elderly population, lawmakers on both sides of the aisle have recognized that establishing national staffing minimums is poor health care policy that threatens to limit access to care. Yet, despite warnings from federal lawmakers and other experts, the Biden Administration is expected to soon finalize this unfunded mandate. This is a pivotal moment that rises above politics and calls for a complete rethinking of how we, as a nation, protect seniors’ access to the high-quality care they deserve. 
Since the introduction of the proposed rule last fall, both Democrats and Republicans have made clear the negative consequences of an unfunded federal staffing mandate. These consequences are real, and they are happening now. Headline after headline in state after state, nursing homes are having to turn away new residents or permanently close because they can’t find caregivers. Access to care is being squeezed, hospitals are becoming overwhelmed, and seniors are the ones left stranded in the process. 
A regulation that demands nursing homes hire more caregivers when there aren’t enough caregivers to employ is the most fundamental flaw. Ninety-four percent of providers say it is difficult to recruit new staff, with 67 percent citing a lack of interested or qualified candidates as an extremely big obstacle. A shocking 99 percent of nursing homes are currently hiring, including 89 percent who are actively recruiting registered nurses–a position the rule states must be on site 24 hours a day.  
The notion that workforce shortages exist because nursing homes aren’t trying hard enough is meritless and untrue. Providers have raised wages, offered bonuses, expanded benefits, and supported staff development. Despite these efforts, most nursing homes have fewer workers than before the pandemic. Yet, the staffing mandate would require they hire more than 100,000additional nurses and nurse aides, but with no funding to help them do it. 
Members of Congress, governors, state representatives, and local leaders have weighed in. Federal lawmakers have written to the White House and its relevant agencies to explain why this unfunded mandate won’t work. They cautioned against unintended consequences – chief among them the potential displacement of nearly one-quarter of America’s nursing home residents, particularly in rural and underserved communities. Sadly, these concerns have been wholly disregarded, leaving lawmakers to take matters into their own hands.  
In the U.S. Senate, Senators Jon Tester (D-MT) and Deb Fischer (R-NE) introduced a bill to stop the administration from finalizing the mandate, which currently has 10 bipartisan cosponsors. Companion legislation in the U.S. House introduced by Representative Michelle Fischbach (R-MN) was recently passed on a bipartisan vote in the House Committee on Ways and Means and now also has bipartisan support. Meanwhile, Senators Angus King (I-ME) and Kevin Cramer (R-ND) introduced legislation that would require the U.S. Department of Veterans Affairs to conduct a study on the risks of the mandate to elderly veterans. Further, multiple governors with state-level staffing requirements are pausing fines for non-compliance because access to care is becoming limited.  
It's beyond disappointing that the administration appears determined to proceed with a federal mandate despite these sincere objections and cautionary tales. Perhaps well intended, this unfunded staffing mandate is completely misguided. And since it won’t succeed, frankly, it’s an unfortunate waste of time, energy, and taxpayer dollars.  
Members of Congress have recognized the need to address the health care workforce shortage through more productive ways. The bipartisan Healthcare Workforce Resilience Act (S. 1024/H.R. 6205) would expand opportunities for international caregivers to come to the U.S. and strengthen our pipeline of workers. The Ensuring Seniors’ Access to Quality Care Act (H.R. 3227/S. 1749) and Building America’s Health Care Workforce Act (H.R. 468) provide pathways to train more certified nursing assistants. The profession is also pushing for workforce programs that encourage job seekers to develop a career in long term care while making it easier to afford housing, childcare, and student loans.  
We need a comprehensive approach that makes significant investments in workforce development, not a “one-size-fits-all” mandate. If the administration proceeds with the latter, it will impact our entire health care system, starting with forcing more nursing homes to downsize or close. Reliance on temporary, costly staffing agencies will rise in order to fill shifts. It will disproportionately impact rural communities as well as seniors who rely on Medicaid. Even with so-called carve-outs and exemptions, there will be only one outcome: vulnerable seniors will have less access to the care they need.   
Instead of a mandate, we need a monumental shift in our approach. We need smart policies formed in collaboration with the providers who will implement them. We need common-sense, funded regulations that help us to deliver high-quality care. We need the government to advance modern staffing approaches that recognize our changing demographics and foster innovation.  
This isn’t about politics, it’s about people. If we are to prepare for the growing number of seniors who will need long term care, then it is incumbent upon all of us to ensure that this care is available for everyone who needs it, now and in the future.  
Clifton J. Porter II is the senior vice president of government relations at the American Health Care Association and National Center for Assisted Living (AHCA/NCAL).