The Centers for Medicare & Medicaid Services (CMS) on Friday, Sept. 1, issued a long-awaited federal nursing home staffing mandate proposal.
CMS and The White House officially released the proposal after early reports on its key provisions from news outlets including the Wall Street Journal and AP. And President Joe Biden made a case for the mandate in a column that appeared in USA Today.
The proposal calls for Medicare- and Medicaid-certified nursing home to provide a minimum of 0.55 hours of care from registered nurse per resident per day and 2.45 hours of care from a nurse aide per resident per day, with non-rural nursing homes having 3 years and rural nursing homes have 5 years to meet these standards.
“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 press release.
American Health Care Association President and CEO Mark Parkinson called the move “unfathomable,” especially when just days ago CMS learned from its own study that there is no single staffing level that would guarantee quality care.
“We hope to convince the administration to never finalize this rule as it is unfounded, unfunded, and unrealistic,” said Parkinson.
The proposal, which will partially take effect after the standard 60-day comment period, also calls for an RN to be on-site at facilities around the clock, while care assessment requirements also will be tightened.
The Biden administration also will launch a national effort to bolster nursing home staffing, including allocating $75 million for initiatives such as scholarships and tuition reimbursement programs.
But such investments fall far short of the action needed to meaningfully improve nursing home staffing, Smith Sloan asserted.
“Funding for training programs – while a huge need, to be sure – is simply not enough at this point,” she said. “America’s under-funded, long-ignored long-term care sector is in a workforce crisis. The Biden Administration has in this initiative an opportunity to change the narrative surrounding nursing homes. Commit to real solutions: prioritize immigration reform to help build the pipeline, increase reimbursement rates to cover the cost of care and increase wages.”
She warned that finalizing this rule will lead to reduced admissions or even closures among the nation’s “nonprofit and mission-driven” nursing homes.
Meanwhile, staffing needs also have increased in recent years as patient acuity has risen in nursing homes, and the proposal also includes provisions related to facilities that care for high-needs residents.
“The proposal also makes clear that the numerical staffing levels are a floor—not a ceiling—for safe staffing,” The White House stated in a fact sheet. “Under the proposal, nursing homes would have to undertake a robust assessment of their particular facility, including consulting with workers and their representatives, to determine whether higher levels of staffing and what staff competencies are needed to meet the needs of their particular resident population.”
Hardship exemptions could be granted for nursing homes that demonstrate “meaningful efforts” to hire workers at standard market-level wage rates and financial investments in staffing, according to the fact sheet.
And the proposal also calls for state Medicaid agencies to publicly report the percent of payments for Medicaid-covered services that are spent on direct care worker and support staff compensation.
A long road
Establishing a federal staffing minimum has been a topic of discussion since early 2022, when the Biden administration included a mandate as part of its comprehensive nursing home reform package. In his USA Today column that coincided with the mandate’s release, President Biden tied the staffing minimums to other elements of the reform package, including a focus on private equity ownership.
“Think of it this way: We are working to make sure no nursing home can sacrifice the safety of its residents just to add some dollars to its bottom line,” Biden wrote. “It’s telling that nonprofit nursing homes are three times as likely as for-profit facilities to already satisfy the minimum staffing standard we’re proposing today. Some corporate nursing home owners are taking taxpayer dollars while cutting corners on staffing so they can make big payouts to executives and shareholders.”
Nursing home trade associations and industry advocacy organizations have pushed back aggressively on various elements of the Biden nursing home reform agenda, including the focus on private equity ownership, arguing that the definition of “private equity” is muddled and that singling out a particular ownership group ignores more fundamental reforms needed to improve the nation’s nursing homes and senior care infrastructure.
With regard to the mandate specifically, opponents from within the industry have said that while they support robust staffing of facilities, a lack of available workers and insufficient funding make any mandate unfeasible.
Smith Sloan again emphasized these points in her statement.
“We share the Administration’s goal of ensuring access to quality nursing home care. This proposed rule works against that shared goal. One-size-fits-all staffing ratios don’t guarantee quality, as the Administration’s own Abt research findings made clear. That aside, it’s meaningless to mandate staffing levels that cannot be met,” she stated. “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? To serve older adults and families, nursing homes must have the resources, including staff, to serve them. Without that, there is no care.”
While many operators agree that adequate staffing ensures the highest quality care, many have said a minimum staffing requirement – which some researchers have said will increase operating expenses for 59.1% of nursing homes, at an average cost of $500,000 per facility – will be punitive for operators already struggling with labor and census issues.
The highly anticipated proposed rule has been under review with the Office of Management & Budget for months, only moving on from the federal coalition on Thursday. On top of that delay, the CMS-commissioned study to assess minimum staffing requirements was accidentally distributed earlier in the week – with results being inconclusive.
The leaked study compiled by Abt Associates concluded there is no solitary staffing measure that could ensure high-quality care.
KFF Health News first reported on the study, after which CMS removed the report from its website; Jonathan Blum, CMS’ principal deputy administrator and COO, told KFF that the 478-page report had been erroneously posted, and that it was in fact a draft.
Upon seeing the leaked study, some nursing home leaders were concerned data used was flawed, outdated, inconsistent and inaccurate, while others say findings support the notion that there is no “one-size-fits-all” approach to the staffing shortage.
Still others were disappointed that the study examined minimum hourly thresholds below the 4.1 ideal outlined in a 2001 study, also commissioned by CMS and sent to Congress.
In July 2022, CMS had provided more details on how the agency planned to establish minimum staffing requirements, including a “mixed methods” research study to assess the minimum staffing requirements needed to ensure that residents receive safe and quality care.
At the time, the federal agency said it wanted to act on a minimum staffing ratio, along with other staffing-related updates tied to the five-star rating and surveys, because it was proven that adequate staffing impacts quality, according to Evan Schulman, CMS division of nursing homes director.
“We now know that staff turnover does have an impact on quality and that really serves as another tool in addition to raising staffing levels that nursing homes can use to improve quality,” he said. “The moment that we learn of a new way to improve quality, we want to put that information out as soon as possible.”
Some states, like New York, have already implemented minimum standards. Yet 75% of the state’s 614 nursing homes cannot meet the state’s 3.5 hour staffing mandate, according to PBJ data. And operators told Skilled Nursing News that they are being forced to limit admissions to comply with staffing ratios, creating bottlenecks.
Yet the urgency to implement a minimum staffing mandate did not subside. In March, Democratic lawmakers penned a letter urging CMS to ensure workers aren’t overburdened with high caseloads and inadequate support.
The legislators, led by U.S. Representatives Jan Schakowsky (D-Ill.) and Lloyd Doggett (D-Tex.), called on CMS to establish robust nursing home staffing standards to ensure residents receive comprehensive, quality care, according to a statement issued by Rep. Schakowsky’s office.
Likewise, industry leaders continued to press providers’ case, that establishing a staffing minimum in the midst of a workforce crisis is futile at best.
“To truly solve our labor crisis, we must start with the core need: proactive measures that will support workforce recruitment and retention,” AHCA/NCAL President and CEO Mark Parkinson wrote in The Hill.
This is a developing story and will be updated throughout the day.
Shelby Grebbin and Tim Mullaney contributed to this report.