The federal government’s new staffing requirements for nursing homes present a formidable challenge – even impossible some say – for facilities nationwide, and operators must focus now on creating workers that don’t exist.

The current reality is stark: if the requirements were enforced today, a vast majority of nursing homes in the U.S. would fall short of meeting the staffing requirements in the new rule, an analysis of the most recent payroll based journal (PBJ) data shows. Only 160, or 1%, out of a total of 14,500 facilities will meet the new requirements as of the summer quarter of 2023. This indicates that a substantial majority of nursing homes are not currently equipped to meet these new standards, highlighting the scale of the challenge ahead.

Scott Heichel, director of clinical reimbursement at LeaderStat, a national health care recruitment and consulting firm, acknowledged that while the intention behind the federal mandate, namely to not only raise the minimum staffing levels but also improve the overall work environment for nursing home staff, is a good thing, it is an uphill battle to get workers into clinical roles at nursing homes. 

‘A mountain to climb’

The financial implications of meeting these new staffing requirements are also substantial. The American Health Care Association (AHCA) estimates the requirements will cost $6.5 billion per year. These costs include hiring, training, and retaining additional staff, which are significant burdens for many facilities. AHCA also estimates that the staffing mandate would require an additional 102,000 clinicians.

However, the Centers for Medicare & Medicaid (CMS) is not providing direct financial support to cover these costs from its staffing rule, leaving providers to absorb the expenses. While CMS has allocated funds for scholarships and tuition reimbursement programs – to the tune of $75 million – to help grow the workforce, there is no guarantee that graduates will choose to work in nursing homes over other health care settings, Heichel noted.

Convincing people to work in nursing homes is a tough job, he said, and without agency work, the staffing mandate will not be able to achieve its thresholds.

“How do we meet this? Are we growing [the clinical workforce]? Are we convincing them to come over to us?” asked Heichel. “Well, 102,000 of those convincings need to happen in order for us to meet those requirements. So that is a huge mountain to climb when we know that people going into our field are declining over time.”

Speaking at the webinar titled, “What skilled nursing facilities should know about the final Nursing Home Minimum Staffing rule,” Heichel said that by increasing staff numbers, the government aims to reduce burnout and turnover, which are prevalent issues in the industry. But in the end, the staffing rule will only lead to more deployment of agency staff in the absence of a shift in strategy to increase the size of the nursing home workforce.

“In speaking to schools of nursing, nursing home positions are not the top tier that they’re going after,” Heichel said. “If they were just lined up at our doors, just waiting for an opportunity to come to our nursing homes and work for us, this would be a neat, very easy thing for us to meet, but that’s not reality, at least with the clientele that I work with across the country.”

Exemptions and waivers

For facilities that may one day struggle to meet these staffing requirements, CMS does offer exemptions and waivers – although these come with their own problems. These are intended for nursing homes that can demonstrate a genuine effort to recruit staff but are unsuccessful due to local workforce shortages. To qualify, the facility must be in an area where the ratio of relevant health care staff to the population is at least 20% below the national average.

Facilities seeking an exemption must prove their efforts through documented job postings, recruitment and retention plans, and financial commitments to staffing. However, obtaining an exemption is not a simple process. It requires detailed evidence and is subject to renewal at each standard recertification survey.

The exemptions also mean that it is public knowledge that a facility is exempt from the staffing requirements, creating image issues for the nursing home and potentially diverting residents away.

The path forward

A crucial aspect of the new regulations is the facility assessments. These mandate that each nursing home evaluate its specific needs and determine the appropriate staffing levels based on the acuity and needs of its residents. This assessment must be evidence-based and data-driven, utilizing tools such as the Minimum Data Set (MDS) and other quality measures to ensure that staffing plans are appropriate and effective.

The facility assessment also informs contingency plans for non-emergency events, ensuring that nursing homes have the resources and staff necessary to provide consistent care under various conditions. This process is a foundational component of the new requirements and becomes enforceable as of August 8, 2024.

As nursing homes navigate these new regulations, the focus must be on developing robust recruitment and retention strategies, utilizing effective facility assessments, and, where necessary, applying for exemptions and waivers, Heichel advised. The goal is to ensure that staffing levels are not only compliant with federal requirements but also sufficient to provide high-quality care tailored to the specific needs of residents.

The upcoming months will be critical as facilities adjust to these changes. And eventually, compliance will require significant effort and investment – and much of funding will have to come from the nursing homes.

In the meantime, nursing homes that often rely on agency workers to fill gaps in their staffing can expect the levels of temporary workers to surge, defeating CMS’ goal of improving quality, Heichel said. After all, it’s widely understood that while temporary workers might fulfill immediate needs, they may not be familiar with the facility’s specific procedures and policies, leading to inconsistent care.

Reducing reliance on agency staff and instead employing a stable, dedicated team is seen as a better solution, but it will be challenging in the current labor market, he said.

“I see there are barriers,” said Heichel. “If it was that easy, we would already have the staffing. We would not have buildings that are struggling with staffing right now. Even though we’re not facing the minimum staffing requirement today, we have places that are working short, or that have to utilize agency to fill the gaps.”

The final rule mandates a minimum of 3.48 hours per resident per day (HPRD) of total staffing, with specific allocations for registered nurses (RN) and nurse aides. This standard encompasses 0.55 HPRD of direct RN care and 2.45 HPRD of direct nurse aide care. CMS said that facilities can use a mix of nurse staff, including RNs, LPNs/LVNs, or nurse aides, to meet the additional 0.48 HPRD.