Warren, Schakowsky hammer nursing home groups over opposition to minimum staffing rule

Two Democratic members of Congress sharply criticized opposition by two national organizations to new minimum staffing requirements at virtually every nursing home in the United States, calling it attempted “sabotage.”

“We are writing regarding the American Health Care Association and the National Center for Assisted Living’s (AHCA/NCAL) and LeadingAge’s shameless attempts to sabotage a long-overdue CMS rule that would help millions of seniors living in nursing homes receive better quality care,” Sen. Elizabeth Warren (D-Mass.) and Rep. Jan Schakowsky (D-Ill.) wrote a letter to AHCA/NCAL President and CEO Mark Parkinson and LeadingAge President and CEO Katie Smith Sloan, which was shared exclusively with The Hill.

“Your attempts to reverse this rule make a mockery of your claim that you have an ‘unwavering … dedication to providing quality care solutions for people who are frail, elderly, or living with disabilities,’ and you should put a halt to these misguided efforts,” the lawmakers added.

Medicare- and Medicaid-certified facilities care for nearly 1.2 million aging Americans, according to the Centers for Medicare and Medicaid Services (CMS), the agency that passed the final rule in April. They also account for more than 97 percent of U.S. nursing homes, according to a lawsuit filed in May challenging the rule.

AHCA/NCAL, which represents 14,000 nursing homes and assisted living providers, and LeadingAge, which represents thousands of nonprofit providers, are both plaintiffs in the lawsuit.

Proponents of the new rule, which set a minimum staff to patients ratio and requires a registered nurse to be on-site 24/7, are necessary to improve nursing home safety and quality at a time when aging Baby Boomers are beginning to put stress on the nursing home system.

But the AHCA/NCAL, the Texas Health Care Association and several Texas care facilities sued the Department of Health and Human Services (HHS) at the end of May, arguing it exceeded the agency’s statutory authority and created an “impossible-to-meet standard” that would force thousands of facilities to close or reduce capacity.

LeadingAge joined the lawsuit June 18.

“We oppose this mandate because it does not acknowledge the interdependence of funding, care, staffing, and quality; it will, without question, impact the ability of our nursing home members, as well as those in other care settings, including home health and hospice, to provide care and services,” Smith Sloan said at the time.

The nursing home staffing rule would require facilities to hire an additional 102,000 nurses and nurses aids to comply with the final rule, which would cost an estimated $6.5 billion per year, according to an analysis by the AHCA. 

Data published by the Federal Reserve Bank of St. Louis showed that nursing home and assisted living staff numbers plummeted during the pandemic, and while they have steadily improved, there are still 96,500 fewer staffers than there were in January 2020.

But Warren and Schakowsky in their new letter accused the industry of opposing the rule out of “greed” rather than “acting in the best interest of its residents.”

“Industry claims that nursing homes cannot afford to hire more nurses are undermined by a recent investigation by our offices, which found that for-profit nursing homes have been stuffing hundreds of millions of dollars into their pockets with sky-high executive salaries, massive dividends, and large stock buybacks,” they wrote.

The congressional offices’ investigation found the organizations “paid out nearly $650 million in stock buybacks, dividends, and salaries to their executives and shareholders, all the while claiming they could not afford to meet the rules.”

In a statement to The Hill, a spokesperson for LeadingAge said the company is “reviewing the letter from Senator Warren and Schakowsky regarding our position on nursing home staffing mandates. While we oppose the final rule, we share the Biden Administration’s goal to ensure older adults’ and families’ access to quality nursing home care. Mandates are a wrong-headed approach.”

The AHCA also told The Hill it was reviewing the letter.

“For years, we have called on Washington to help address the growing caregiver shortage through targeted policies and investments, but instead of helping the profession, the Administration issued an unfunded and unrealistic mandate. These blanket requirements do nothing to help us develop, recruit, and retain caregivers, and only stand to limit access to care for America’s seniors,” the AHCA said in a statement to The Hill.

“This is why you’ve seen overwhelming and bipartisan opposition throughout our diverse profession and on Capitol Hill. Our commitment to preserving access to care will remain unwavering, and we hope to work with Washington on more productive and meaningful solutions,” the AHCA added.

While Warren and Schakowsky argue “there is no justifiable rationale for opposing this rule,” their position is not universal on the Hill or even within their party.

Sen. James Lankford (R-Okla.) introduced a Congressional Review Act resolution supported by the AHCA and LeadingAge earlier this month that could overturn the rule, and his statement echoed the industry criticism of the “one-size-fits-all requirements” the rule would impose.

The resolution has garnered 35 co-sponsors, including Sens. Joe Manchin (I-W.Va.) and Jon Tester (D-Mont.).

Updated at 10:38 a.m. EDT.