Operators seeking to grow their own staff with in-house licensing programs have been met with financial and compliance barriers in the form of civil monetary penalties, or CMPs.
During a time when operators are limiting admissions as a result of the staffing crisis, industry leaders feel such restrictions are arbitrary and punitive. Federal legislation has been reintroduced to combat this barrier, but as of yet there’s no movement.
“They have basically severed our ability to grow our own staff,” said Lisa Chubb, chief clinical officer at Brickyard Healthcare. “We were crying out, we’re trying to do everything we can to get more staff in our buildings. It’s almost like they’re working against us.”
The Indiana operator has gotten citations for vendors with their masks below the face, and other non-clinical workers improperly using personal protective equipment (PPE). Such workers are not used to wearing PPE day in and day out, Chubb said.
If a fine is $10,000 or more, a facility is barred from continuing its CNA certification course for two years. And infection control “F-880 tags” introduced because of the pandemic can get facilities to that threshold much faster.
Bryanna Wegner, vice president of clinical services for Indiana-based Majestic Care, said just two of these infection control CMPs can bring a facility to the $10,000 limit. That includes citations with low scope and severity, or those that were shown to result in no harm to residents.
The first F-880 offense is $5,000, and each subsequent offense goes up by $5,000 increments, she said.
“In three years, it would not be unheard of that [an operator] would hit the 10K limit very easily,” added Wegner.
Todd Mehaffey, chief operations officer for Trilogy Health Services, said just one facility locked out of its CNA program is “one too many.”
“For smaller providers, this greatly reduces their ability to self-preserve in this critical staffing environment,” added Mehaffey. Trilogy has had to pivot training locations to sister campuses when impacted, he said.
There are certainly more “opportunities” for a facility to get hit with such penalties, Janine Finck-Boyle, vice president of health policy at LeadingAge, told Skilled Nursing News. About a dozen new regulations related to infection control, communications and reporting data, not to mention the vaccine mandate, have been introduced since the start of the pandemic.
“[Operators] want to be compliant but it is compounding with regulations,” added Finck-Boyle. The national trade organization represents more than 5,000 nonprofit aging services providers.
An F-880 citation can result from any infraction that is infection control related, like if someone is doing wound dressing and sets scissors on the table, Wegner said. The most common F-880 tags are related to mask usage, according to Wegner and Chubb.
“There’s no leeway there. Although there may be a practice that needs to be improved, if they see one maintenance man with their mask below their nose one time, they’re citing that F-880, which comes with the automatic civil money penalty,” added Wegner. “That’s really been burdensome for us in the industry.”
About 50% of Majestic’s facilities cannot host CNA training courses due to the CMP lockout, Wegner said.
“I would never say that there’s no room for improvement. Of course, there always is. It just seems really arbitrary to continue to be so punitive in an industry that’s worked so hard to keep everybody safe,” noted Wegner.
Reintroduced legislation
Federal legislation from December was reintroduced this month, which would allow operators to continue with their training programs even if they get a deficiency citation.
This would depend on citation severity and if the facility has rectified or shown signs they’re working toward fixing the issue, according to Finck-Boyle.
The Ensuring Seniors’ Access to Quality Care Act was originally introduced by Sens. Mark Warner of Virginia and Tim Scott of South Carolina at the end of 2019.
“The legislation that’s been reintroduced does not have a nursing home get a checkmark immediately,” said Finck-Boyle.
A nursing home would be able to correct a deficiency within a timeframe offered by the Centers for Medicare & Medicaid Services (CMS), added Finck-Boyle, usually anywhere between a 30, 60, or 90-day range. It all depends on what needs to be done with education, training and quality improvement.
“Once you’ve corrected your deficiency, and you’ve been recertified on it, this legislation is then allowing the nursing home to then continue on with their training program,” she added. “It’s not two years, it could be a few months.”
“Guardrails” exist to ensure the right operators are getting this chance – no facility that has had a harm-level deficiency in the last two years will be able to take advantage of this proposed legislation, according to Finck-Boyle.
LeadingAge has been trying to get something similar passed for five-plus years, said Finck-Boyle.
“The legislation makes sense. We’ve always had that battle of, if there was a harm tag or an immediate jeopardy, losing the nurse aide training for two years, and I think that makes sense when you have that kind of a citation or a deficient practice,” said Wegner. “But the 10K CMP doesn’t make sense for our industry, especially where we are now.”
Wegner considers the CMP practice “punitive,” especially if there’s no Covid outbreak in a given building when the citation was given, or the infraction didn’t happen in a Covid wing.
“What we need is legislation that will help, not hurt us as an industry while we navigate through these staffing challenges. Anything that can remove barriers to training and hiring is a positive step,” added Mehaffey.
Coupled with the legislation, Finck-Boyle and Wegner call on government entities to create a standardized form of certification for CNAs across the country.
The topic is another advocacy piece LeadingAge is focused on, according to Lisa Sanders, director of media relations for the organization.
“We have a system that is regulated by the federal government. And yet the training of staff … is very fragmented. It largely rests with the employer or the nursing home to find the employees; there’s no federal support for training programs,” added Sanders.
CMP lockout repercussions
One major repercussion from the CMP lockout has been seen in rural communities, Finck-Boyle said. Its members have said they’re losing CNA students and potential students in these areas especially, whether it’s simply inconvenient or they don’t have the transportation.
There’s also the possibility of what Finck-Boyle calls “retro review,” where a surveyor is looking at past, closed records for care that was delivered months ago.
“They’re coming to the nursing home once a year, once every nine to 15 months,” Finck-Boyle said of surveyors. “If they find something, and it’s a deficient practice, and they look at the date, you can start getting fined from the date of noncompliance.”
Wegner said Majestic has struggled more with CNA recruitment in CMP lockout areas, while asking a temporary nurse aide to drive 30-40 miles out of their way can be burdensome or simply impossible in a rural setting.
Majestic has close to 100 temporary nurse aides in its buildings that need to get certified. The operator has had to turn to outside sources for that certification since they can’t do it in their buildings hit with the CMP lockout.
“That is proving to be very difficult because everybody is trying to get their temporary nurse aides into outside courses. There’s a huge weight there. It’s not going to be possible to get every temporary nurse aide certified by the deadline,” said Wegner.
An outside training option might not keep the same hours either – night courses might be the only option available through such an option, which might not be viable for a TNA with a family.
In other words, outside training courses reduce flexibility for prospective CNAs and in turn diminish the likelihood they will see things through to get their certification, Wegner added.
“This is a workforce challenge. When you are looking at what’s going on in the country for health care and through the full continuum, there is not a direct pipeline for people to come into work in health care and in long-term care in nursing homes specifically, and this is a barrier,” added Finck-Boyle.
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