Those in the nursing home sector are worried a potential staffing mandate imposed by the Centers for Medicare & Medicaid Services could be the ruination of a reeling sector. However, there is an argument to be made that such a move by CMS would be its own ruination. Let me explain.
From the provider perspective, the COVID-19 pandemic’s “Great Resignation” workforce realignment has already made staffing extraordinarily challenging. As of preliminary figures last month, Bureau of Labor Statistics data found over 311,000 fewer workers in “nursing and residential care facilities” than in March 2020, when the pandemic began to fully unleash its cruelty upon long-term care.
It is not for lack of trying on providers’ part. An accounting firm’s survey found the average wage costs for New Hampshire nursing homes rose 19.53% from 2019-21, excluding contract labor, or 23.66% including contract labor. And wages, and contract labor costs, have gone up since. The call for “$15 Now” is an anachronism in New Hampshire when it comes to licensed nursing assistants, as you will be making more than that, even though the minimum wage is the same as that set federally ($7.25 an hour). Yet you still cannot find licensed staff without resorting to agencies.
Thus, providers look at the possibility of a federal staffing mandate the same way Sisyphus would have looked at the enormous boulder he was forced to push uphill being replaced by an even more enormous boulder. When your burden is already crushing, any further crushing is an exercise in relativism.
But what if CMS gets crushed? A conservative majority on the US Supreme Court is just itching to overturn precedents, including the longstanding standard of deference to administrative agencies known as the Chevron standard, based on a 1984 decision. For a long time, Justice Clarence Thomas was a lonely crusader in wanting to overturn that standard. He is no longer alone.
Earlier this year, the Court had two major decisions on federal vaccine mandates against COVID-19 that are instructive.
In National Federation of Independent Business v. OSHA, the Court, in a 5-4 decision, struck down a federal requirement for masking or vaccination adopted under the Occupational Safety and Health Act. Conspicuously ignoring the masking alternative to vaccination, the majority found the Act did not confer authority for the requirement at issue. But three justices would have gone further and found that even had Congress clearly intended the Act to give the federal government such regulatory power, the delegation of such authority would be unconstitutional.
In Biden v. Missouri, the Court, in a 5-4 decision, upheld the ability of CMS to mandate worker vaccination as a condition of participation in the receipt of Medicaid and Medicare funds. Two dissents, each joined by the four dissenting justices, made clear the skepticism that Justices Alito and Thomas had for the authority of CMS to adopt such a rule. And the slim majority opinion rested upon the extraordinary threat that COVID-19 posed: “[E]nsuring that providers take steps to avoid transmitting a dangerous virus to their patients is consistent with the fundamental principle of the medical profession: first, do no harm.”
No such saving grace would be available for a challenged staffing mandate, as the Court would find that had Congress intended something so consequential, it would have plainly said so in statute. And while it is entirely possible that the Chevron standard will be overturned in another case before the Court, calling into question all manner of administrative rules, litigation against a staffing mandate is almost certain to circumscribe CMS authority in ways it should not choose to invite.
Brendan Williams is the president and CEO of the New Hampshire Health Care Association.
The opinions expressed in McKnight’s Long-Term Care News guest submissions are the author’s and are not necessarily those of McKnight’s Long-Term Care News or its editors.
