Exclusion of LPN on CMS Staff Leads to Complicated Mess for Nursing Homes

The skilled nursing industry is at a crossroads as it grapples with the federal mandate proposed by the Centers for Medicare and Medicaid Services (CMS). A significant point of contention in the proposal is the exclusion of licensed practical nurses (LPNs), which has raised concerns and drawn strong reactions from industry leaders.

What’s keeping me awake right now is the political nightmare, said Mark Parkinson, CEO and president of the American Health Care Association/National Center for Assisted Living (AHCA/NCAL) at the organization’s recent Annual Convention and Expo in Denver. The proposed personnel rule is an overreaction, a weak reaction to a horrible crisis that we have all experienced.

Parkinson is not alone in his concern. Carrier executives such as Steve Nee, CEO of Diversicare, Ted LeNeave, CEO of Accura HealthCare, Nate Schema, CEO of the Evangelical Lutheran Society of Good Samaritan, and Chris Chirumbolo, CEO of Carespring, have also spoken out against the exclusion of LPNs.

And Dr. David Grabowski, a professor of health policy at Harvard Medical School, warned that if the proposed rule becomes final, the role of the LPN in many nursing homes could disappear.

The proposed mandate requires Medicare and Medicaid certified nursing homes to provide a minimum of 0.55 hours of care from a registered nurse per resident per day and 2.45 hours of care from a nursing assistant per resident per day, with Non-rural nursing homes have 3 years and rural nursing homes have 5 years to comply with these standards.

As facilities try to meet minimum RN requirements and staff remaining positions with CNAs, the change could lead to a significant decline in licensed practical nursing staff in nursing homes, Grabowski told Skilled Nursing News.

In theory, nursing homes could meet the 0.55 RN threshold and then fill the remaining positions with CNAs, he said.

Currently, the average nursing home employs 0.89 LPN hours per resident day (HPRD) and 0.26 RN HPRD, he said. Thus, we could see a large decline in licensed personnel from 1.15 (RNs plus LPNs) to 0.55 (RNs) under the proposed rule.

Grabowski acknowledged that while the CMS-commissioned report from Abt Associates did not show an association between LPNs and quality of care, other investigation has found that LPNs are essential to providing high-quality care. He emphasized the importance of having a sufficient number of RNs, LPNs and CNAs to provide high-quality nursing home care.

Additionally, some states are already implementing their own staffing mandates that include LPNs, and these may conflict with those proposed in the federal staffing mandate.

This proposed rule will be a huge challenge for states with mandates that allow the use of LPNs, Grabowski said. For example, he noted that Massachusetts has a state staffing mandate of 3.58 hours per resident per day, which is far above the proposed new federal rule of 3.00 hours per resident per day. However, the Massachusetts rule allows the use of LPNs.

As a result, despite the higher overall standard, only 13% of Massachusetts nursing homes are currently in compliance with the proposed federal rule of 0.55 RN and 2.45 CNA hours per resident per day, he said.

A personal question

The exclusion of LPNs from the CMS proposal not only has the potential to create an operational quagmire for providers, it is also affecting operators in a deeply personal way. This makes LPN exclusion not just a political issue up for debate, but a contentious issue that threatens morale and can deepen distrust between providers and regulators.

“This is very dear to my heart because my mom was a nurse at a nursing home, she was an LPN,” Diversicares Nee told SNN. The rule completely ignores our LPN team members, and everyone in the business knows the crucial role they play every day.

Calling the CMS proposal disrespectful of LPNs, Accuras LeNeave cited the example of an LPN who is part of the company’s leadership team. She is an incredible nurse with a lot of experience who has literally saved lives, he said, and she wrote a letter to CMS to provide feedback on the proposal. Her passion, anger, and frustration came through in the letter, causing her to think twice about whether it was appropriate to send it.

I told her, this is your letter. It’s not mine, LaNeave told SNN. I know you’re representing Accura Healthcare, I’d sleep on it, [but] I have no problem sending it as is. Because it’s your story. It’s your career. You were the one who was disrespected.

Calling LPNs the backbone of the industry, Caresprings Chirumbolo also urged LPNs to make their voices heard on this issue. And he disputed a potential argument in favor of excluding LPNs, which is that nursing homes could be hiring LPNs instead of RNs to save money.

This argument is flawed because in many parts of the country, hiring LPNs is as difficult as hiring RNs, he said.

Advocacy on this issue needs to be strategic, Chirumbolo noted, given the possibility that CMS could increase the total number of hours of care required under the mandate if the agency allows the inclusion of LPNs.

The Good Samaritan Societies Scheme also raised this point, characterizing the exclusion of LPNs as an insult and arguing that they should be included alongside RNs in meeting the 0.55 hour per day limit.

“We really believe that LPNs and RNs need to be included as part of an entire category of licensed nurses,” he said. We need to have the flexibility as providers to ensure that people are working at the top of their license scope, but I also think this gives providers the flexibility they need given the landscape and the availability of the workforce that exists today.

LaNeave philosophically isn’t opposed to increasing the hours-per-day requirement if LPNs are included, but from a practical standpoint, he said, the employees aren’t there.

Overall, the emotional toll the mandate is already taking is a burden on nursing home workers who are still trying to recover from the trauma inflicted by the Covid-19 pandemic, provider executives said.

There’s a lot of anger, a lot of frustration, a lot of hurt, a lot of, We don’t understand, LaNeave said.

New York’s Complex Staffing Landscape

Steven Hanse, president and CEO of the New York State Health Facilities Association (NYSHFA), argued that CMS is disregarding a substantial portion of the workforce by failing to recognize the vital role that LPNs play in caring for residents.

Hanse highlighted the unique situation in New York, where the state requires a staffing ratio of 3.5 hours per resident per day, including LPNs.

It’s 2.2 hours with CNAs and LPNs and 1.1 with RN, and then the delta, the extra two can be made up anyway, he told SNN.

New York personnel law and the proposed federal rule intersect, but the more stringent requirement will take precedence, Hanse explained. This means that even if the federal mandate were passed as proposed, New York providers would still be subject to state requirements, including the inclusion of LPNs. This would cause New York’s staffing ratios to exceed the 3.5 hour limit.

In New York, we are experiencing a serious crisis in the long-term care workforce. So you can implement all the mandates you want, he said, adding: [But] if the workers are not there, they will not achieve this. Furthermore, issuing this mandate without any funding is an impossibility.

Hanse said the CMS mandate lacks adequate funding, making it nearly impossible for facilities to comply. Without adequate financial support, the mandate is unworkable and unfair, especially considering that 76% of nursing home residents in New York are funded through Medicaid, he said. Additionally, other services and support workers, who provide direct care, must also be counted toward minimum staffing requirements.

And that includes physical therapists, occupational therapists, respiratory therapists, these are direct care employees whose work is critical to the health and well-being of our residents, he said. So, among other things, firstly, we need the mandate to be funded, and secondly, [it needs] reflect workers who provide direct care beyond CNAs and RNs.

Pennsylvania Perspective

Zach Shamberg, president and CEO of the Pennsylvania Health Care Association, echoed the concerns expressed by Hanse. Shamberg expressed his disappointment with CMS’ decision to exclude LPNs and other essential caregivers in the proposed mandate. He emphasized that the exclusion undermines the role of LPNs, who have undergone clinical training to improve their skills.

It is truly a slap in the face to diminish the role of 12,000 LPNs across Pennsylvania who have been trained to advance their clinical level and understanding, only to have CMS tell them that LPN/LVN hours per resident day, at any level, they have no association with safety and quality of care, he told SNN.

It’s unclear why CMS doesn’t value LPNs, Shamberg said. After all, Pennsylvania regulators felt so strongly that LPNs do, in fact, have an impact on the safety and quality of health care that the state mandated a staffing ratio for that position, he argued.

That said, Shamberg said the difference may have to do with LPNs in Pennsylvania having greater influence, noting: When you zoom out to the national level, not all states have unionized LPNs like we do here in Pennsylvania.

The exclusion of LPNs from the proposed CMS staffing mandate will create a huge problem for Pennsylvania providers, and the proposed mandate undermines all the work operators have already done to increase states’ HPRD to an achievable staffing level during a period of workforce limitations, Shamberg said. .

Now, with CMS’ proposed regulations, Pennsylvania providers will have to comply with two different and, in some respects, conflicting regulations, he said. This will create an unattainable mandate and a complicated mess for providers who will once again be stuck trying to foot the bill for expensive mandates. In the end, the problem will be less access to care.