Nearly 187,000 people have died of COVID-19 in long-term care facilities, making up one-third of total COVID-19 deaths in the U.S., according to the Kaiser Family Foundation.
"We've known for a long time the importance of sufficient staffing in nursing homes to provide quality care to residents, and we've known there have been shortages of staff for some time," said Rhonda Richards, senior legislative representative in government affairs at AARP, which supports the provisions. "But we saw during the pandemic, a spotlight shone on these issues and what can really happen when you don't have enough staff."
However, the American Health Care Association/National Center for Assisted Living argues complying with these mandates without significant government funding would be nearly impossible.
If an HHS study finds that nursing homes should increase clinical staff by 25%, nursing homes would have to hire more than 150,000 people, costing $10.7 billion a year, AHCA estimates. In contrast, nursing home employment has decreased by 221,000 jobs since March 2020, according to an AHCA report based on Bureau of Labor Statistics data.
"Unfortunately, if these provisions actually became law, we believe that thousands, if not most, of the skilled nursing facilities in the United States would close," Mark Parkinson, president and CEO of AHCA/NCAL, said during a press conference Wednesday.
But Michelle Mahon, assistant director of nursing practice at National Nurses United, said the problem isn't a shortage of trained nurses. She sees it as a shortage of conditions in which nurses are willing to work.
"What's really driving this labor shift is the demand for the respect," Mahon said.
Specifically, the package would require the HHS secretary to conduct a study no later than three years after passage on the "appropriateness" of establishing minimum staff to resident ratios for nursing staff at skilled nursing facilities. HHS would have to issue regulations on minimum staffing ratios–if deemed appropriate in the study–no later than one year after the study is submitted to Congress.
HHS could waive ratio requirements for facilities in rural areas but families must be notified and the waiver must be renewed every year.
National Nurses United and Harrington both think HHS should skip the survey and go right to mandating safer staffing levels, Mahon said.
"This is absolutely necessary, and we don't need to – we don't need to study. This is a problem that's existed for a long time and is well documented," Mahon said.
Current law only states nursing homes must provide "sufficient" staffing to meet the needs of its residents 24 hours a day but it does not establish any ratios.
The "Build Back Better Act" would also require nursing homes to have a registered professional nurse on duty 24 hours a day.
The link between RN staffing and better health outcomes for nursing home residents is well-established. A 2020 study found that every 20-minute increase in RN staffing predicted 26% fewer decreases in COVID-19 in Connecticut nursing homes that experienced at least one COVID-19 death.
Harrington said nursing homes make money by keeping RN staffing low and hiring cheaper but less skilled licensed practical nurses as an alternative. Still, only RNs can perform assessments on patients.
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Nursing homes with sicker patients are paid more by Medicare but don't have to hire more staff to care for them.
"Oftentimes you have a situation where you've got a registered nurse who's really accountable for all nursing care delivered at all times. We're being accountable for sometimes hundreds of patients. So even just having one RN on site 24 hours a day is still not enough," Mahon said.
About 75% of nursing homes almost never met the government's expected RN staffing levels based on resident acuity in 2017 and 2018, according to a study Harrington and colleagues published last year in Health Services Insights.
"The reason the nursing home industry is fighting this is that they do not like mandates and it would cost them more money," Harrington said.
"Patients are suffering. We've had all these infections and deaths because of inadequate staff, and so I think there's really a need for Congress to go ahead and do something."
AHCA/NCAL and LeadingAge's policy recommendations for improving nursing home quality, released in March, calls for a federal requirement that facilities have a registered nurse on staff for 24 hours a day. But their proposal calls for federal funding for financial incentives to bring nurses into the sector, waivers for nursing homes with severe workforce shortage issues and other flexibilities.
"While these two provisions sound great, and again, we believe they're well intentioned by people who want to improve care, they're just not realistic in the real world," Parkinson said.
The Build Back Better Act would also take steps to improve the accuracy of some nursing home facility data and cost reports and improve surveys.
AHCA said none of the provisions in the Build Back Better Act would fix the issues nursing homes face.