CMS Proposed Minimum Staffing Rule Would Have Significant Consequences for Kansas Seniors and Families

September 29, 2023

TOPEKA, Kan-- On Sept. 1, 2023, the Centers for Medicare and Medicaid released a proposed rule on Minimum Staffing Standards for Long-Term Care Facilities. The rule would require facilities to have a 24/7 Registered Nurse (RN) on site and meet a staffing ratio of .55 RN hours per resident per day, or HPRD, and 2.45 Nurse Aide (NA) HPRD.

LeadingAge Kansas is the state association for not-for-profit and mission-focused aging services. Its 150 member organizations across Kansas include over 100 not-for-profit nursing homes and long-term care units of critical access hospitals.

Aging services organizations agree that providing the best quality care to residents and their families is critical. However, this proposed rule will negatively impact the ability of Kansas nursing homes to keep providing care, which in turn will impact residents and their families. Long-term care facilities are already operating in a difficult environment, with all or part of 47 facilities closing or reducing their offerings to seniors in the last few years.

“Our members would love to hire more staff and have been attempting to do so to keep up with retirements and staff attrition in the healthcare sector,” said Rachel Monger, President/CEO of LeadingAge Kansas. “Simply put, there aren’t enough staff to keep up with the demand. This is a situation that will be worsened by the proposed CMS regulation.”

Kansas State Board of Nursing data shows there are fewer Bachelor of Science in Nursing (BSN) program admissions year after year – a net loss of 189 admissions from 2018-2022 to be exact. Associates Degree of Nursing (ADN) programs aren’t doing any better with a net loss of 23 admissions during that same time frame. The continuing decline in admissions isn’t the only problem. Nearly 42% of RNs in Kansas are 50 and older and preparing for retirement. Our workforce pipeline is not sufficient to supplement the shortage of nurses we are currently facing and will continue to face over the coming years.

The proposed rule will also create an unintended consequence of squeezing Licensed Practical Nurses out of the long-term care workforce. The CMS staffing mandate does not count LPN care toward .55 RN HPRD or 2.45 NA minimum number of nursing hours per resident.

“We are disappointed to see a complete disregard for the role LPNs play in caring for residents day in and day out in our communities,” said Monger. “According to the Kansas Labor Information Center, LPNs have found a strong place in long term care in Kansas with the second highest ranking of employment in these settings. Are we willing to tell hundreds of dedicated and capable nurses to go back to school or find a new place to work?”

No federal funding has been allocated to support the proposed staffing mandate. As CMS wrote in the proposed rule, Kansas can expect to face a $9.0 million per year price tag to achieve the 24/7 RN requirement and $24.8 million per year for the RN and NA staffing ratio requirement. Kansas taxpayers will be the ones paying that cost.

Despite what the Biden Administration has shared about nursing facilities being “the wild, wild west,” we know our care providers are in it for the right reasons – to serve our communities and to provide the best quality of care for residents and their loved ones.

“While the Biden administration and CMS believe the proposed rule will improve issues of quality and accessibility, we believe it will lead to the exact opposite, especially in rural areas of the state. It will lead to more closures,” Monger said. “We will see more residents and their families having to make the difficult decision of moving clear across the state for care or attempt to make do with what they can at home. We will see residents struggling with isolation after moving further away from loved ones and the only community they’ve ever lived in.”

This is concerning for a predominantly rural state like Kansas, as nearly 85,000 Kansans live in an area with only one nursing and residential care provider within a 30-minute drive. If that facility were to close, the residents at the facility would join the nearly 23,000 Kansans already living in a care desert – doubling the drive time needed to reach a provider and limiting resident’s access to care and their loved ones.

If that isn’t jarring enough, by 2036 the 65+ population in Kansas will grow by 208,000. Who is going to care for all those in need of aging services? Our not-for-profit providers believe in servantship. They answer the call every day to provide access and quality care to residents and their families and will continue to do so as we see more seniors in need of care in Kansas.

“Our stance is clear. We want to provide the highest quality of care, increase accessibility, and improve the lives of seniors and their families in Kansas,” said Monger. “We would love to have more nursing staff available to help our providers achieve that goal, but this proposed rule is not the way to go about it. You cannot mandate staff into existence.”

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 While we represent a collective non-profit, aging services provider voice – we feel Kansans should hear the message directly from our organizations across the state.

“A new staffing mandate will not create new workers where there are none. We are offering incentives, bonuses, and pay increases, yet fail to attract the talent we need to fill our positions. We would have to limit admissions even more and look at closing some of our units.” – Fred Pitzl, Administrator, Good Samaritan Society, Olathe

“Minimum staffing requirements would severely hurt our business. We currently do not accept admissions if we are not adequately staffed to take care of them, but there are times we have 3 and 4 resignations from clinical staff within a few weeks period. It takes us some time to replace those positions, so we run the risk of being out of compliance at any given time.” –Chief Financial Officer, Saint Paul

“As a small rural community with a small nursing home, this proposed minimum staffing rule could pose a serious challenge for our care home. Between the two full-time RNs we have, we barely cover the minimum 8 hours per day of RN coverage and often must call in one of our two outside RNs to assist. Our LPNs are very educated and up to speed on the needs of our residents here as they will notify an RN immediately if something needs to be addressed by them, even if it isn’t during the RN coverage hours. My Director of Nursing and I are on-call 24/7 for any needs that should arise. This new rule, should it go into effect, could be detrimental to our facility staff and residents as we will not be able to staff an RN 24/7 with our current staff.” – Haley Stevens, Administrator, Frankfort Community Care Home, Frankfort

“The proposed minimum staffing rule will impact our community very negatively. Our facility will have to reduce the number of elders we can care for. Being in a rural area and the decrease in individuals choosing a career in nursing has already negatively impacted our nursing home. Our mission is to provide exceptional care, which we do daily. Increasing regulations on staffing will prevent elders from receiving our exceptional care and possibly shut our home down indefinitely.” – Christina Valdois, Chief Financial Officer, Bethesda Home, Goessel

“While hardship waivers are included in the proposed rule for both the 24/7 RN coverage and the staffing ratio requirements, it requires a survey to be completed and there are simply not enough surveyors available to accomplish this – making the waiver unachievable and resulting in more insufficient staffing violations in the future. Survey teams are already over 18 months behind and are experiencing the same staffing shortages that Skilled Nursing Facilities are.” – Tammy Pettijohn, Administrator, SunPorch of Smith County, Smith Center

“This minimum staffing rule is going to be absolutely detrimental to rural, long-term care facilities. The ratios will not be applicable to every facility as one group of residents may need more care than another group. Financially, this is going to be bad. Where do we find the staff in rural areas?” – Nikki Schmitz, Administrator, Wheatlands Health Care Center, Kingman

“The proposed minimum staffing rule, as written, will have a significant negative impact on rural health providers. The staffing rule is being proposed at a time when many healthcare professionals left the field due to pandemic conditions. There is still a significant shortage of healthcare workers, and most providers remain open only by paying extortionate rates to staffing agencies. The RN requirement is particularly concerning because there are not enough qualified RN candidates in our region to adequately fill 24-hour per day staffing. The lack of RN candidates is an issue that will not be fixed by mandates. Quite simply, we couldn’t hire an RN for any wage even if we had the resources because there are none to be hired. Our mission is to provide quality senior services. Inadequate Medicaid reimbursement and increased mandates are endangering the viability of our mission. This proposed mandate will undoubtedly contribute to the decline of senior care in America.” – Kris Erickson, Chief Executive Officer, Bethany Village, Lindsborg

“The proposed requirement for 24-hour RN coverage would be very detrimental to our small 45-bed licensed facility. From a financial position we would need to replace our current LPN staff with RN staff all at a much higher rate of pay thus making it harder to maintain expenses in line with revenues. Our facility is 85% Medicaid. From a staffing position, we would have to terminate LPN staff to open positions for RN staff which is not logical since our LPN staff does 90% of what an RN would provide, and our facility always has an RN on-call.” – Elizabeth Howarth, Administrator, Homestead Health Center, Wichita

“Hardship waivers require that we be surveyed, but our last survey was nearly 22 months apart. This would leave us unable to achieve the ability to attain the waiver. We already have a staffing shortage in the rural area. Asking us to staff around the clock with RNs 24 hours versus utilizing LPNs will only continue to reduce our workforce opportunities in the rural area. There is an ongoing workforce crisis in the healthcare field making the implementation and achievement of the rule impractical for most nursing home providers – rural or urban. The cost of this mandate will be astronomical and could lead to closures of those facilities without financial backing. That doesn’t help any elder – it just puts more elders in jeopardy of needing care. We’ve been in business for over 50 years and are a PEAK mentor home here in Kansas, with a waitlist that would fill our facility over again if we could. We pride ourselves on the great care we give and the great staffing ratio that we already run. We serve a rural area and imposing this mandate in an already tough market to hire nurses and CNAs will impede access to quality care for rural elders and families.” – Heather Germann, Administrator, Leonardville Nursing Home, Leonardville

“The cost of having an RN staffed 24 hours a day will be a larger expense for LTC facilities that are already struggling. Not being able to use LPNs would cause a hardship for nursing homes that would lose long term dedicated nurses. CNA staffing shouldn’t be determined only on the number of residents you have. It should be determined by the health needs of your residents. It makes a big difference if your residents are mostly independent, total assist, or if they have behaviors. This should be considered when determining ratios.” – Belinda Katz, Director of Nursing, Hilltop House, Bucklin

“With this proposal, it presents many concerns for not only myself as a nurse (LPN for over 11 years and RN for over 8 years), Director of Nursing/MDS Coordinator/QAPI Nurse/Restorative Nurse, but also for those I work with and care for at the Linn Community Nursing Home.  We are a very rural community with a population of approximately 375 people and the closest hospital a 20-minute drive. We have been advertising in many ways since before COVID hit and have yet to remain staffed in the nursing department.  We rarely obtain an application and when we do, we do not lower our standards to provide care to our residents just to have a body for staffing ratios. With this proposal, it would mean that more than half of the nurses who are LPNs would not count toward the staffing ratio. We are a big part of our community and want to be able to continue doing so.” – Sarena Rosebaugh, Director of Nursing, Linn Community Nursing Home, Linn

“We believe we currently meet the staffing ratio requirement. The biggest adjustment for us will be the requirement to have an RN 24/7. I believe it will be imperative for us to be able to include our Director of Nursing in this requirement. The changes to the facility assessment also appear to add administrative burden and take staff time away from patient care to complete paperwork.” – Aaron Keuhn, Chief Executive Officer, Ness County Hospital District #2, Ness City

“We are a small nursing home in Western Kansas. The total population of our community is 500, so the labor pool is very small. We care for elderly and disabled and are of vital importance to our community in both care for our residents and jobs for our people. In order to staff RNs 24/7, I would have to hire 4-5 RNs and let all my LPNs go. We struggle now for nurses and paying competitive wages. This mandate will cause our facility to have to close because we cannot meet this standard.” – Sandy Cline, Administrator, Protection Valley Manor, Protection

We all share the goal of equitable access to the highest quality care for older adults—and building a more robust workforce would go far toward helping the country achieve that goal. We need further research into why the healthcare workforce is in the disarray it is in, what can be done to address fewer nursing program admissions and graduations, and evaluate other policies that could be utilized to expand and fund healthcare workforce efforts. We, therefore, urge Congress to work with the Administration and long-term care stakeholders to develop and invest in a robust workforce development strategy and delay the proposed rule until there are enough qualified applicants and adequate funding to address staffing levels realistically throughout the long-term care continuum.

For further questions or inquiries, contact Kylee Childs, Director of Government Affairs, at 785-670-8051 or [email protected].