North Dakota long-term care providers call federal rule an 'impossible staffing mandate'

BISMARCK — North Dakota health care providers are scrambling to meet new federal standards set for long-term care facilities. Put in motion by a 2023

executive order,

the series of mandates go into effect Aug. 8 despite nationwide concerns — including a lawsuit filed in June by the American Health Care Association against the Department of Health and Human Services and Centers for Medicare and Medicaid Services.

The rule comes in response to high death rates during the COVID-19 pandemic, citing a Centers for Medicare and Medicaid Services, or CMS,

study

that links fatality rates to high turnover and chronic under-staffing in nursing homes.

Medicare- and Medicaid-certified facilities will be required to have a registered nurse on site 24/7 and increase the number of nurse aids available daily. Rural communities have a year longer to implement the standards than urban communities. Proposed last September and finalized in April, the rule received over 46,000 comments during the 60-day national comment period that closed in November.

“This rule does not only impact nursing facilities, it will impact all sectors of health care and the cost of care in our state,” Nikki Wegner, president of the North Dakota Long Term Care Association, testified in a state Health and Human Services committee meeting on Thursday, July 11.

The association is affiliated with two plaintiffs involved in the CMS lawsuit.

“This, for us and for the rest of the nation, is really an impossible staffing mandate. There are simply not enough RNs to fulfill this requirement. While the intent behind the rule is to improve care quality, it presents really significant challenges,” Wegner said.

Rep. Kathy Frelich, R-Devils Lake, responded to Wegner’s testimony, referencing her professional experience with long-term care as an outreach specialist at the

North Dakota School for the Deaf and Resource Center for Deaf and Hard of Hearing.

“I would say that quality of care generally isn’t related to your RN. It’s usually related to your CNA (Certified Nursing Assistant) on that level. So, I’m concerned that this is just adding a cost,” Frelich said. “Ultimately, that goes back to the residents.”

Long-term care residents pay an average of $403.19 per day — over

$12,000 monthly

— a rate Frelich said would “drastically” increase.

Since the height of the COVID-19 pandemic, the number of nursing homes across the state has been in decline. Six facilities closed in just under three years.

According to the

Bureau of Labor Statistics,

North Dakota would need to add 1,313 nursing home workers to return to pre-pandemic levels.

Data

from the Payroll Based Journal indicates 79% of the state’s facilities would not comply with the registered nurse mandate and only 17% would meet nursing requirements.

The same data shows rural communities in the state would be disproportionately impacted, where 86% wouldn’t meet requirements compared to 65% in urban areas. North Dakota would have to spend a minimum of $4.5 million per year to comply.

Individuals 65 and older make up over 16% of the state population with approximately

8,220 people

receiving care every day, according to the Long Term Care Association.

Some facilities could be considered exempt from the mandates. The

final ruling

states facilities would have to prove the local workforce is 20% or more below the national average and that administrators made “good faith” efforts to hire and retain staff.

Tanya Schnabel, administrator for the Wishek Living Center, said most rural facilities would have to apply for an exemption, including hers. She said the process would add to her already full plate of managing the already “concerning” worker deficit.

“We have housing issues here. So, even if somebody wants to move to town to come work for us, there’s no place for them to live that’s affordable. We wouldn’t be able to do it without contract companies right now, because they’re moving here and giving their time to help care for our residents,” Schnabel told Forum News Service.

“This will just probably be the straw that broke the camel’s back,” she said.

Rep. Kelly Armstrong, R-N.D., and 33 other Republicans cosponsored a joint resolution of congressional disapproval introduced by Rep. Michelle Fischbach, R-Minn., in May. Additionally, Sen. Kevin Cramer, R-N.D., sought to delay the rulings by introducing the VA Report on Proposed CMS Staffing Ratios Act, which would require the Veterans Association to study the risks to elderly veterans posed by the new requirements.

North Dakota’s Long Term Care Association is affiliated with the American Health Care Association and Leading Age. Last May, both entities joined four other plaintiffs in filing a

lawsuit

against the Secretary of the United States Department of Health and Human Services and CMS. According to the filing, CMS exceeded its authority by overriding congressional directives and employing “sweeping” new mandates.

“Hopefully they realize that this will probably kill off some rural facilities. If they close, then people would have to drive to Bismarck or Fargo or Jamestown to see their loved ones. That would be devastating,” Schnabel said.