Oklahoma nursing homes are working to meet federal staffing rules, which require them to have a registered nurse (RN) on site 24/7 and employees to spend a minimum amount of time with each resident every day.
Facilities say the unfunded mandate asks them to find staff they can’t afford and that doesn’t exist. Oklahoma is one of about 20 states that recently joined a lawsuit against the federal government over it.
StateImpact’s Jillian Taylor spoke with Claire Dowers-Nichols, the CEO of LeadingAge Oklahoma, which represents 58 nonprofit nursing homes.
TRANSCRIPT:
Jillian Taylor: I wanted to start with the thing that brought us here together today, which is a federal minimum staffing mandate for nursing homes. … So can you tell us a little bit about what it's asking these homes to do?
Claire Dowers-Nichols: Sure. So, if we can, let's start at the current requirements. … Currently, facilities are required to have an RN on staff, eight hours a day, and then provide 24-hour licensed nursing care available at all times, for all of its residents and clients. The mandate triples the RN requirement to 24/7, and then it also is very prescriptive in the hours per resident day of care that is delivered to each client. … We totally agree with the intent of the staffing mandate, (which) is to provide high-quality care for nursing home residents and their families. That's the last thing a family member wants to worry about. … What we don't agree with is the methodology to get us to that point.
Taylor: And how is implementation going so far, and what are some of the challenges that you’re seeing in some of the facilities that are underneath LeadingAge?
Dowers-Nichols: The facility assessment has already been (completed). … Now we're looking at the implementation of RN staffing, 24/7, for each facility, and then the prescribed 3.48 (hours) per resident day of care by the RN and the nurse aides. Those are delayed in the timeline. They have more time to implement that portion. However, the main concern and LeadingAge stance … is that the workforce simply does not exist. … And when you look at the aging demographic, and how the country's population, especially the state of Oklahoma's population, is getting older, that problem is exacerbated.
… But this facility in Yukon, for instance, it's a smaller life plan community, so they have independent living, all the way to skilled nursing, and they would need to hire seven more registered nurses at a cost of over $600,000 a year. You know, and this is a nonprofit organization that doesn't know where it would get that funding from because Medicaid reimbursement is not going to match those costs. And this is when we hear about people referring to this as an unfunded mandate. There is no additional funding to go along as part of this. … And so it's not seen as feasible by those providers that are already running on a really thin margin.
Taylor: So now, Oklahoma is one of about 20 states with attorneys general who have joined on to a suit against CMS, or Centers for Medicare and Medicaid Services, regarding these rules, and LeadingAge Oklahoma has signed on. Can you tell me a little bit about how this suit came together?
Dowers-Nichols: So, in the summer, LeadingAge National and (the American Health Care Association) joined a joint lawsuit against CMS. Then, the state of Texas filed a lawsuit against this mandate. That began conversations in other states, and so attorneys general in Kansas, South Carolina and Iowa got together with their LeadingAge affiliates and decided to all go be co-plaintiffs in this suit that was filed October 8th. They opened that up and secured pro bono legal representation to any other LeadingAge affiliates that were interested in signing on. So, in conversations with LeadingAge members, our board — it was a concern. Every time I go out to a nursing facility, one of their main concerns is, how would they reach this mandate. So having some real heart-to-heart discussion with our board of directors, a vote was made in favor of joining the lawsuit.
Taylor: And what are some of the arguments that suit makes?
Dowers-Nichols: Well, the two primary ones are, you know, the workforce shortage, the astronomical costs to implement this. … When you look at quality of care, there's so much more that goes into it than just staffing. I mean, obviously, good quality staffing is key to that. But this mandate is so rigid in its implementation that (it) takes out some of those qualitative factors of what is your patient mix. What is your resident mix? What are those true care needs?
… Some patients are going to need so much more than this minimum. It's opening itself up to have the opposite effect, where people are just going to strive to meet that minimum.
… CMS warned against this when they looked at a one-size-fits-all approach in 2016, saying that, you know, these mandatory ratios are concerning because long-term care facilities are going to vary by size (and) resident population. Instead, it should stick with what it does now. … It should focus on skill sets and the staff having those specific competencies to meet the unique needs of its residents at any given point.
Taylor: And so what is the goal of the suit?
Dowers-Nichols: So the goal of the suit is to vacate and set aside that 24-hour, seven-day-a-week RN (rule) and then set aside the hours per resident day. … And then to vacate and set aside the enhanced facility assessment (requirement), because it is very rigorous, not all necessary (and) too prescriptive. So instead, we would like to see, you know … let's step back. Let's re-examine the issue. We're all in agreement that care quality is of utmost (importance), but let's revisit the way we get there.
Taylor: If you were able to get to that table today and present, maybe, a better path forward to ensure quality of care, what would that like to you?
Dowers-Nichols: The elephant in the room remains the workforce shortage. … So, I think that we need to re-examine workforce development issues. We need to look at reimbursement rates and compare those with what's currently reimbursed and what is needed. And start the conversation there.
Taylor: That’s Claire Dowers-Nichols from LeadingAge Oklahoma. Thank you for speaking with me.
Dowers-Nichols: Thanks so much for having me.
This transcript has been lightly edited for clarity and brevity.
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