Despite continuing nursing home workforce shortages across the country, some states continue to push for mandated minimum staffing hours – Virginia’s legislature was the latest to introduce such proposals, in January.
The bills were heard by the state House Tuesday night and carried over for the year, meaning they are effectively dead for this year’s legislative session.
Aging service organizations and their members voiced concern over the Virginia legislation prior to the House decision.
Other states also have pushed for staffing minimums. And at the federal level, nursing home staffing was a component in certain versions of the Build Back Better Act.
In Virginia, House Bill 646 would require the state Board of Health to establish a minimum of 2.8 hours direct care per resident per day for nursing aide staff, and at least 1.3 hours of care from a registered nurse (RN) per resident per day.
RNs would provide a minimum of 0.75 hours out of 4.1 required direct care hours per resident per day, according to the bill.
Another bill, HB 330/SB 406, requires nursing homes to meet a baseline of staffing levels based on resident acuity and in alignment with staffing level recommendations outlined by the Centers for Medicare & Medicaid Services (CMS).
HB 330/SB 406 is a product of Virginia’s Joint Commission on Health Care; the entity was formed to study nursing home staffing last year.
Staffing minimums and the workforce shortage
The Virginia Health Care Association (VHCA), the state chapter of the American Health Care Association (AHCA), opposes the bills in their current form.
“The workforce simply isn’t there,” said Amy Hewett, vice president of strategy and communications for VHCA. “We have been able to look at data from the Bureau of Labor Statistics that shows over the past pretty lengthy period of time, nursing home and residential care staffing was increasing in Virginia, and then when the pandemic hit, the floor dropped out of our workforce.”
Since February 2020, Virginia’s nursing home workforce has declined by more than 9,000 employees, Hewett said, taking the state back to a staffing level not seen since 2012. On a national level, approximately 220,000, or 14% of the skilled nursing workforce, left during the pandemic, according to the Bureau of Labor Statistics.
“We’ve lost 10 years of employment growth because of the pandemic. To mandate additional staff, the people simply aren’t there to fill those roles,” added Hewett. “It does seem really demoralizing when we know [nursing homes] have lost many workers in the sector … just based on the data, the staffing ratio and mandates would be unattainable.”
A fiscal impact statement was prepared in tandem with the HB 646 proposal, since there would be a cost to the state in order to meet the new requirements.
Medicaid pays for the care of six in 10 nursing home residents, Hewett said. “Even for those residents who aren’t covered by Medicaid, there would be an increased cost to the providers,” she explained.
If the general assembly passes the policy, then legislators would determine the amount of funding needed to support the staffing requirement.
Melissa Green, co-owner and chief clinical officer of Georgia-based Trio Healthcare, said the proposed minimum hours are “extremely high” compared to what other states require in staffing minimums.
“None of them are as aggressive as what Virginia is proposing. You get to the point of whether it’s realistic or not,” said Green. “I know a lot of the facilities in Virginia have stopped admissions due to staffing issues. Trio, we have not stopped admissions in any of our facilities due to staffing. We’ve been utilizing agency to make sure that the patients are taken care of and that we have sufficient staff in the building.”
Still, Trio’s occupancy dropped from 84% in January 2020 to 69% as of January 2022. Trio operates nine SNFs in Virginia, along with seven skilled nursing facilities in Ohio.
Minimum staffing efforts across the country
Compared to the Virginia proposal, only the District of Columbia requires a higher staffing standard at 4.16 hours per resident per day (hrpd), according to a December report released by the National Consumer Voice for Quality Long-Term Care.
Virginia is one of 18 states that don’t require nursing homes to have a minimum number of staff hours per resident day – earlier versions of the Biden administration’s Build Back Better Act (BBB) would have made staffing minimums a federal requirement.
Through BBB, the Secretary of the Department of Health and Human Services (HHS) would have performed a study to determine an ideal level of staffing, and then implement that level within one year. Later versions of the requirement include the study, but not implementation.
Independent researchers have analyzed what percentage or number of hours would be ideal for minimum staffing ahead of the federal study, AHCA CEO and President Mark Parkinson said in November – facilities would need an excess of four hours, or 25% more staffing.
Parkinson in November estimated an additional 150,000 direct care workers would be needed to meet the hourly requirements, and at least 21,000 more RNs to provide around-the-clock care.
Other states including Rhode Island, New York and Pennsylvania have already delayed legislation to change staffing minimum requirements in-state.
New York, for example, had set a daily average requirement of 3.5 hours of care per resident per day by a nurse or nursing assistant, at least 2.2 hours of care provided by a certified nursing assistant (CNA) and 1.1 hours of care daily by a licensed nurse.
Pennsylvania in July proposed an increase to the minimum daily standard from 2.7 hours to 4.1 hours of direct care, an increase of 1.4 hours per day. There’s been no movement on the legislation since the summer.
New York Gov. Kathy Hochul delayed the mandate from taking effect in January amid the omicron surge, while Rhode Island Gov. Dan McKee signed an executive order the same month to delay a law that would fine nursing homes for failing to comply with minimum staffing requirements.
The Florida legislature, by contrast, introduced a bill in January to loosen staffing standards for nursing homes in the state. SB 804 would allow operators to admit new residents even if they fail to meet staffing minimum requirements, and broaden the types of staff members that can be counted toward providing such care as a mandated minimum.
Carrot or the stick
Virginia currently has a program in the works which would incentivize nursing homes to increase staffing minimum hours, Hewett said, referring to the Nursing Facility Value-Based Purchasing Program developed and led by the state’s Medicaid agency.
The program, which is set to begin July 2022, would determine the size of Medicaid reimbursements based on performance across six measures that delve into adequate staffing and “avoidance of negative care events,” according to program text.
It would also take into account quality of care investment for payments, which are not contingent on performance.
“Virginia should be seeing how implementation of that program works when we’re providing incentives for increased staffing, not sanctions and penalties as outlined in these other bills,” Hewett said, adding that the state needs to better fund Medicaid as well.
Currently, Virginia’s Medicaid program only covers the cost for half of the days in the program, Hewett said.