President Joe Biden’s high-profile plan to improve nursing home quality by setting staffing minimums has attracted intense resistance and lukewarm support, regulatory comments and public statements reveal.
The nursing home industry strenuously opposes the policy, which the Centers for Medicare and Medicaid Services proposed Sept. 1. And as a growing number of congressional Republicans have spoken against it, Biden and CMS have gotten little support, and even resistance, from a cadre of Democrats and patient advocates.
Related: CMS’ proposed nursing home staffing mandate explained
During his State of the Union address last year, Biden announced his agenda to bolster long-term care quality and safety after COVID-19 tore through nursing homes. Federally mandated staffing minimums, the centerpiece of Biden’s nursing home platform, have long been favored by nurse unions, advocacy organizations and progressives.
The American Health Care Association and other industry groups reject the policy and demand CMS kill it. Among their arguments is that there simply aren’t enough registered nurses to hire and that skilled nursing facilities reliant on meager Medicaid reimbursements can't afford them anyway. Nursing homes will go out of business if CMS proceeds, the industry predicts.
“We are requesting the administration to withdraw this archaic, unfunded healthcare policy and instead focus on meaningful, supportive ways to grow and retain the nursing home workforce,” the American Health Care Association/National Center for Assisted Living and the National Association of Licensed Practical Nurses wrote CMS in a comment letter Oct. 27.
Nursing home and GOP opposition to staffing mandates is unsurprising. But an increasing number of Democrats are urging CMS to scale back or scrap the rule, making arguments that echo the industry’s. In addition, progressives and patient advocacy groups grouse that CMS’ plan is too weak to have a positive effect.
Under the proposed rule, nursing homes would have to provide a minimum of three hours of nursing care per resident, per day, with at least 0.55 hours from registered nurses and at least 2.45 hours from certified nursing assistants. The regulation would also require that a registered nurse be on duty at all times. Most nursing homes would have five years to comply, while rural facilities would get an additional two years. CMS would allow for narrow hardship exemptions.
“Some say that the proposed staffing levels are too tough. Some say that they’re not tough enough,” said Priya Chidambara, senior policy analyst with the KFF Program on Medicaid and the Uninsured. “You’ve got these almost diametrically opposed viewpoints, so it’s going to be up to the Biden administration to kind of thread the needle and figure out how to move forward.”
The administration is holding firm amid the tricky political dynamic, at least for now.
“CMS is unwavering in its commitment to improving safety and quality of care for the more than 1.2 million residents receiving care in CMS-certified nursing homes,” a spokesperson said in a statement. “We believe the proposed requirements are robust, achievable and necessary.”
The view from Capitol Hill
Lawmakers, mostly Republican, have floated measures to halt the regulation.
Rep. Michelle Fischbach (R-Minn.) introduced a bill to prevent CMS from implementing the rule unless the agency can prove it would not result in increased nursing home closures, decreased access to care or worsened workforce shortages. Sen. Deb Fischer (R-Neb.) plans to introduce a companion bill.
House legislation to fund the Health and Human Services and Labor departments would forbid the administration from spending money to carry out the rule. When the House debated the broader measure on Nov. 15, a floor vote never took place, but an amendment to block the nursing home staffing regulation passed via voice vote, despite Appropriations Committee ranking member Rosa DeLauro (D-Conn.) urging support for the policy.
House Energy and Commerce Committee ranking member Frank Pallone (D-N.J.) similarly endorsed the plan during a hearing on Oct 25. "These proposed rules are strong first steps to help ensure that patients in nursing homes and home- and community-based settings are able to get the care that they need,” he said.
A group of senior Democratic senators also expressed support for staffing minimums in a letter to CMS Administrator Chiquita Brooks-LaSure Nov. 7.
“We support the proposed rule and the Biden-Harris administration’s actions to protect nursing home residents across the country to ensure they receive timely, safe and quality care, and to support workers in America’s nursing homes,” the senators wrote. Health, Education, Labor and Pensions Committee Chair Bernie Sanders (I-Vt.), Finance Committee Chair Ron Wyden (D-Ore.), Appropriations Committee Chair Patty Murray (D-Wash.) and Aging Committee Chair Robert Casey (D-Pa.) were among the signatories.
Yet some Democrats are taking the opposite tack, siding with the nursing home industry and Republicans and clouding the rule’s political prospects.
Democratic Sens. Maggie Hassan (N.H.), Joe Manchin (W. Va.), Jeanne Shaheen (N.H.) and Jon Tester (Mont.) plus independent Sens. Angus King (Maine) and Kyrsten Sinema (Ariz.), who caucus with Democrats, joined 22 Republicans on a letter to Brooks-LaSure Oct. 5. “We believe the rule as proposed is overly burdensome and will result in additional closures and decreased access to care for our nation’s seniors,” the senators wrote.
Likewise, Democratic Reps. Jared Goldman (Maine) and Chris Pappas (N.H.) and 89 Republicans wrote HHS Secretary Xavier Becerra on Oct. 20 with “significant concerns” about the draft regulation. “It is likely we will see facilities across the country be forced to deny access to seniors in need of nursing home level of care to stay in compliance with the rule, especially in rural communities,” the lawmakers wrote.
Rep. Gwen Moore (D-Wis.) sent a letter of her own to Brooks-LaSure Nov. 14, urging the administrator “to fully consider possible adverse consequence for residents of [long-term care] facilities that are not able to meet the higher standards."
Kansas Gov. Laura Kelly (D) also came out against the staffing regulation. “While I appreciate the intention of the proposed rule resulting in increased quality of care for residents served in nursing facilities, I have concerns with the unintended consequences a rule such as this may have on a rural state like Kansas,” she wrote Becerra on Nov. 1.
Stakeholders react
The comment period for the proposed rule ended Nov. 6. A review of the letters CMS received revealed more opposition than support.
“The proposal will fail because it does not consider two major issues: the ongoing workforce crisis and the proposal’s astronomical implementation costs,” LeadingAge President and CEO Katie Smith Sloan said in a news release accompanying its formal comments on Nov. 1. “Should CMS opt to implement it as is, older adults and families’ already limited access to care will only get worse,” she said. LeadingAge represents nonprofit nursing homes.
Industry groups specifically complained about the policy’s reliance on registered nurses, who are scarce, and its exclusion of licensed practical nurses.
“The proposed federal staffing standards gives absolutely zero credit to the vital role [LPNs] play,” the American Health Care Association/National Center for Assisted Living and the National Association of LPNs wrote.
“A one-size-fits-all staffing mandate such as the proposed hours per resident day is a simplistic, outdated approach that does not consider the interprofessional collaboration model nor the need to make staffing decisions based on each unique resident and their care plans,” the organizations wrote.
The Service Employees International Union, which represents more than 1 million healthcare workers, backed the rule in a Nov. 3 comment letter. “We support the objectives this rule sets out to accomplish and we believe that finalizing and fully enforcing it will be an important first step towards substantially improving care in nursing homes across the country,” the union wrote. SEIU, however, recommends stronger staffing rules.
Despite the union endorsement, other erstwhile allies remain unsatisfied with the proposed rule.
The Center for Medicare Advocacy, which long has supported efforts to improve healthcare quality and safety, argued against the rule as insufficient, for example. The regulation just doesn’t go far enough, said senior policy attorney Toby Edelman. “It’s way past time to have real, strong standards that will make sure that residents get quality care that they’re entitled to get,” she said.
Correction: A previous version of this story incorrectly stated that the Service Employees International Union favors broader hardship exemptions to nursing home compliance with the staffing minimum regulation.
