The Limits of
Our Imagination

The impending release of a federal staffing mandate was the talk of the summer in the nursing home space, but the government hung the long-awaited news out to dry on the Friday before Labor Day weekend — a sure sign that nobody at the Centers for Medicare & Medicaid Services (CMS) headquarters in Baltimore wanted the general public to think about the announcement all that much, or even notice it in the first place.

While most of America's news consumers were already halfway out the door to soak up the last days of summer 2023, CMS dropped news guaranteed to satisfy no one: a proposed new requirement for nursing homes to provide a total of three hours per patient per day of care, split unevenly between a registered nurse (.55 hours) and a certified nurse aide (2.45 hours).

This is the regulatory equivalent of King Solomon actually splitting the baby in half, then feeding the halves to his dogs for kicks. 

The industry, as is its wont, spent the lead-up to this anticlimax railing against any staffing mandate at all, pointing to persistent shortages of qualified workers and dredging up the classic appeals to "over-regulation" of nursing homes. Advocates, as they have for decades, pointed to a .75 figure for RNs and 4.1 for non-RNs — artifacts of a federal study that's been old enough to drink in the U.S. for nearly two years — as the starting point for aggressive new rules regarding staffing.

Thus, CMS's holiday weekend news dump gave everyone something to be furious about. Mark Parkinson, CEO of for-profit industry trade group the American Health Care Association, said his organization will implore the Biden administration to reject the proposal, which he described as "unfounded, unfunded, and unrealistic."

Over on Twitter, the Long-Term Care Community Coalition — probably the least subtle advocacy group in its preference for new regulations, higher fines, and easier lawsuits against operators over any other type of reform — derided the proposal as "a missed opportunity to rectify a predatory business model" that "will expose hundreds of thousands to devastating #neglect."

It's rare to see both sides of the funds-vs.-fines binary angry after a major government announcement regarding nursing homes, even if it's for different reasons; usually one side crows about victory while the other rails against the unfair, unwise bureaucrats at CMS.

So if we can't look to the predictable post-announcement posturing to figure out who won and who lost this time, where can we? Well, nobody ever made money betting on nursing home residents as winners of debates happening over their heads: A huge percentage of folks currently living in these settings will never even hypothetically benefit from a mandate that won't be fully enforced until 2026 at the absolute soonest — or 2028 if they happen to live in a rural area.

But even if it was fully enforced tomorrow, setting a baseline staffing number is only a small part of a hugely complicated equation. A staffing mandate doesn't guarantee living wages and health benefits for workers; doesn't guarantee investment in training caregivers to provide truly person-directed care, not just check boxes on a form; doesn't guarantee the elimination of shared bedrooms and bathrooms; doesn't guarantee the development of superior care models such as Green House homes, affordable independent and assisted living apartments, PACE programs, adult day centers, and others; and, simply put, doesn't make living in a nursing home a significantly more appealing proposition than it was yesterday.

Instead, should this proposal become an actual CMS rule, we'll get years and years of fighting over whether one single quality benchmark is fair or draconian, coupled with plenty of creative rule-dodging and lawsuits, and absolutely zero political will to address anything else. 

It's easy to see why both advocates and regulators focus on something like the staffing minimum. It's a quick, straightforward way to measure quality in nursing homes that any layman can understand, and it's frankly shocking that one doesn't already exist on the federal level. For experts and curious citizens alike, it's a glowing red line that separates the "best" from the "worst," the compliant with the non-compliant, the "good apples" from the "bad apples."

But in a reality where very little gets done in Washington and most people, even elected officials, don't want to think about aging or elders at all, expending political capital on a single metric was never going to make anyone happy. 

In fact, much like the Andrew Cuomo circus that reappears every time nursing home regulations are debated on the federal level, the mandate melee has served as a convenient distraction from fundamentally reshaping the industry.

As with all the attention heaped on Cuomo's (to be clear, very bad!) decision to send COVID-positive people into nursing homes during the earliest days of the pandemic, if I'm a truly terrible nursing home operator only in it for the cash, I want the debate over staffing mandates to go on forever. Let lobbyists, bureaucrats, and advocates fight over a standard that, thanks to decades of underfunding and Reagan-era distrust of "the government," federal and state agencies could never fully enforce in the first place — and, even if strictly enforced under penalty of death, wouldn't change a hundred other terrible things about the current LTC system.

By delivering a solution that everyone hates on an extremely narrow regulatory point, CMS produced the only outcome that can ever really be expected of it. As both the policeman and sole funder of the nursing home industry, CMS exists in a constant stalemate between its diametrically opposed duties: The agency is tasked with keeping residents safe, sure, but it also serves as an outsourcing arm for those residents' government-funded nursing home benefits, entrusting private industry to do what Washington and states can't or won't. 

CMS needs the industry as much as the industry needs CMS's cash, and thus we are stuck in a permanent loop of half-measures and patch jobs on a system that's been falling apart for decades. The great staffing mandate whimper of 2023 is the best we can hope for in a for-profit health care system, and putting all of our regulatory chips on single metrics will never create the system elders deserve. 

As always, a disclaimer: I do not question the utility of a minimum staffing standard. As I said earlier, it's a scandal in itself that one doesn't already exist. But it's also a scandal that we expect for-profit companies — whether it's nursing home operators or hospital conglomerates or behavioral health care providers or privately-run bus and train companies — to provide high-quality public services on our behalf, all regulated by the same organization that funds them for its own benefit. 

For-profit companies exist to make money for investors, full stop. Everything else is ancillary. This is not a criticism of the people involved, as I've written about before; god only knows I made a living off of the for-profit side of the industry for many years, and I think about my role in that landscape every day. It's just the reality of a capitalist system where what's good for investors trumps what's good for anyone else.

Until we stop fighting over the best ways to force for-profit companies to stop doing the one thing they exist to do, and start agitating for a fully funded public health care system that serves people over profits — or, at the very least, agitating for a system where profits are tied directly to the types of metrics, services, and outcomes that actually matter to people — arbitrary rules that make no one happy will represent the limits of our regulatory imagination. And that's the biggest scandal of all.