Eighteen months ago, President Joe Biden stood before Congress during the State of the Union address and vowed that his administration would be the first to set national standards for staffing levels at nursing homes. On Friday, the Centers for Medicare and Medicaid Services unveiled its plan to make that pledge a reality.
CMS issued a proposed rule that nursing homes must provide a minimum of three hours of nursing care per resident, per day, with at least 0.55 from registered nurses and at least 2.45 hours from nurse aides, according to a CMS news release. The draft regulation would also mandate that a registered nurse be on duty at all times. CMS projects that full adherence to the rule would cost nursing homes $40.6 billion over 10 years.
Most nursing homes would have three years after the regulation is finalized to fully comply, with rural facilities getting an additional two years. The registered nurse requirement would take effect within two years of the final rule, while rural sites would have an additional year to adhere to it. CMS included hardship clauses in the draft regulation. For instance, skilled nursing facilities located in areas with workforce shortages could qualify for exemptions.
The new policy would be a significant departure from current federal rules dating to 1987, which state that licensed practitioners must be on duty at all times and that at least one registered nurse must be present for eight hours each day. This policy requires that nursing homes ensure “sufficient” staffing in general, without defining the term.
"When facilities are understaffed, residents suffer," Health and Human Services Secretary Xavier Becerra said in the news release. "They might be unable to use the bathroom, shower, maintain hygiene, change clothes, get out of bed or have someone respond to their call for assistance. Comprehensive staffing reforms can improve working conditions, leading to higher wages and better retention for this dedicated workforce.”
CMS estimates that about three-quarters of skilled nursing facilities do not meet the new standards, which the agency characterized as more stringent than required under any state's nursing home staffing laws. Thirty-eight states states and the District of Columbia have nursing home staffing minimum laws in place, at least five of which emerged during the COVID-19 pandemic, KFF Health News reported last year.
The draft regulation would order nursing homes to complete staffing assessments to determine workforce needs within 60 days of the final rule's publication. In conjunction with the staffing minimums, CMS aims to strengthen the assessment process by requiring nursing homes to use evidence-based methods to develop care plans for residents, consider employee input during assessments and devise staffing plans that maximize recruitment and retention.
The nursing home staffing mandate has been anticipated for months. CMS intended to issue a draft regulation in February, but the proposal was delayed and the White House Office of Management and Budget began a lengthy review in May. The OMB released the regulation to CMS on Tuesday, which coincided with a KFF Health News report that a study CMS commissioned to evaluate optimum staffing levels made no recommendation for a specific minimum.
The staffing rule is among a slate of new policies the Biden administration has announced or implemented to improve nursing home safety and quality since the president's speech. The pandemic, which devastated the nursing home industry, provided an impetus for new regulations that have long been urged by patient advocates and nurses unions.
"Workers and the families of residents have been sounding the alarm for decades about the need for a minimum national staffing standard in nursing homes, and we commend the Biden-Harris administration for answering the call," AFL-CIO President Liz Shuler said in a news release. "We are hopeful that today’s announcement of a proposed minimum national standard will be a critical first step toward strengthening our long-term care system."
The labor federation includes National Nurses United, which represents nearly 225,000 healthcare workers.
The administration previously imposed tighter restrictions and penalties on the poorest-performing facilities and is increasing transparency of nursing home ownership. The added cost of a staffing mandate also partly motivated CMS to give nursing homes a 4% increase in Medicare reimbursements next year. Last month, the Health Resources and Services Administration announced it would distribute $100 million to universities and health systems for nurse training to expand the professional pipeline.
The Government Accountability Office, Congress' nonpartisan investigative body, issued a report in March that cited nursing home staffing as a critical area for policymaking.
"Experts consistently described the need to improve staffing as the highest priority issue in nursing homes, noting several long-term and ongoing staffing challenges including shortages and high turnover," the GAO wrote. "Experts told us that nursing homes need to create more incentives for improving staff recruitment, retention and compensation, noting that low wages and few benefits mean that nursing home staff sometimes struggle to make ends meet and have to work multiple jobs."
Nursing home industry reacts
The nursing home industry has long resisted staffing minimums and has been lobbying against them as the administration advances its regulation, which could be in force by year-end.
“We hope to convince the administration to never finalize this rule as it is unfounded, unfunded and unrealistic. We will vigorously defend access to care for our nation’s seniors and advocate for common sense solutions to improve quality and strengthen the long-term care workforce," American Health Care Association President and CEO Mark Parkinson said in a news release Friday. The proposed rule "requires nursing homes to hire tens of thousands of nurses that are simply not there. It then penalizes us and threatens to displace hundreds of thousands of residents when we can’t achieve the impossible," he said.
“To say that we are disappointed that President Biden chose to move forward with the proposed staffing ratios despite clear evidence against them is an understatement," LeadingAge President and CEO Katie Smith Sloan said in a news release Friday. "There are simply no people to hire—especially nurses. The proposed rule requires that nursing homes hire additional staff. But where are they coming from?"
Multiple studies have linked more staff—especially registered nurses—to better quality nursing home care. A review of nearly three decades of research demonstrated, for example, that functional ability, pressure ulcers and weight loss are most influenced by staffing levels.
"There is a proven association between higher total staffing levels (especially licensed staff) and improved quality of care," researchers from the University of Missouri and the University of Central Missouri wrote in the Journal of the American Medical Directors Association in 2006.
However, the recent study CMS commissioned found no single staffing level would assure quality care. The Abt Associates report did conclude that higher staffing levels at nursing homes can result in fewer instances of "delayed" or "omitted" care to patients. But the research company fell short of declaring a specific minimum staffing level, in contrast to a paper it drafted for CMS in 2001, which identified 4.1 staff hours per resident, per day as appropriate for nursing homes.
“It is unfathomable that the Biden administration is proceeding with this federal staffing mandate proposal. Especially when just days ago, we learned that CMS’ own study found that there is no single staffing level that would guarantee quality care," Parkinson said.
The flexibilities offered to rural providers under the draft rule are insufficient, National Rural Health Assoication CEO Alan Morgan said in a news release. "The proposed extended compliance timelines and the exemption process for rural facilities will only postpone implementation of mandates that many rural areas will not be able to meet," he said. "This is an inopportune time to place a blanket, unfunded mandate on struggling rural nursing homes."
The CMS proposal received a mixed response from organizations that support stricter oversight of nursing homes. Although the AFL-CIO, the Service Employees International Union and the AARP offered positive comments, others were underwhelmed.
The National Consumer Voice for Quality Long-Term Care expressed disappointment, describing the proposed rule as "well below the recommendations of evidenced-based research necessary to ensure that residents are receiving quality care. This proposal does not raise the bar above the mediocre care that is provided in the majority of nursing homes, or to reduce deficient care practice and omissions of care that regularly occur due to lack of staff," a spokesperson wrote in an email.
The draft regulation "not only fails to implement the president’s directive, it also represents an enormous step backwards," Center for Medicare Advocacy Senior Policy Attorney Toby Edelman said in a statement. "The proposed rule calls for lower staffing levels than the government’s own 2001 report identified as necessary to prevent avoidable harm to residents and even lower staffing levels than the grossly inadequate staffing levels that nursing facilities currently provide. Nursing home residents and the workers who care for them deserve better."
Nursing homes are still reeling from COVID-19, which infected 1.7 million residents and killed nearly 170,000, according to the Centers for Disease Control and Prevention. Skilled nursing facilities have struggled with staff losses and low occupancy rates. The nursing home occupancy rate was 87.6% in February 2020, the month before the COVID-19 crisis began, the National Investment Center for Senior Housing and Care reported. After plummeting in 2020 and 2021, the occupancy rate has gradually rebounded to 81% in May, still below pre-pandemic levels, according to the most recent data.
Requiring nursing homes to add more staff could result in facilities shutting their doors. More than 70% of nursing homes are very or somewhat concerned that workforce challenges may force them to close, according to survey results the AHCA published in June. In addition, staffing shortages have caused more than half to turn away patients and more than one-quarter to fully or partially shut down, the survey found.
"The root issues remain unaddressed in that these proposed staffing metrics do not address proper funding to implement and the very real lack of healthcare workers necessary to meet these metrics," Eric Murray, executive director of senior services at Youngstown Area Jewish Federation Heritage Manor in Ohio, wrote in an email Friday. "In absence of meaningful efforts to address these two root issues, I remain concerned that nursing home bed capacity may shrink and cause unintended consequences for seniors and our hospital partners," he wrote
"We fear the proposed minimum staffing rule from CMS could be the beginning of the end for small-town nursing homes," Nate Schema, president and CEO of Sioux Falls, South Dakota-based Good Samaritan Society, said in a news release Friday. "It's impossible to imagine how a skilled nursing location in a rural town with a population of 1,000 will find 24/7 coverage for an RN."\
Some nursing homes have been cutting costs in preparation for higher labor spending under the staffing regulation, said Erica Kraus, an attorney at Sheppard Mullin who specializes in healthcare regulations. Yet those efforts may prove inadequate, she said prior to the proposed rule announcement.
“At the end of the day, we are talking about enterprises that have to stay in the black,” Kraus said. “If it becomes impossible to do that, you will see some smaller facilities closing their doors.”
CMS plans to publish the proposed rule in the Federal Register on Tuesday and will accept comments until Nov. 6.