Five states have enacted some of the nation’s toughest minimum staffing standards for nursing homes, and yet gaps in actual care persist, a new analysis released Friday reveals, raising questions about whether the federal staffing rule will in the end be able to achieve its intended goal.

The analysis by KFF Health News, focuses on these states with stringent nursing home staffing requirements: California, Florida, Massachusetts, New York, and Rhode Island. 

According to KFF, there is widespread non-compliance with the rules, with many nursing homes in these states operating below the state mandated staffing levels, often with tacit approval from regulatory bodies or without facing penalties.

The analysis used daily payroll-based journal data (PBJ) from nursing homes, covering the final three months of 2023 and totaling 1.3 million records. These records detailed the hours worked by various staff categories, including registered nurses (RNs) and certified nursing assistants (CNAs), alongside resident counts.

KFF’s analysis applied each state’s specific staffing rules to determine compliance. For instance, Massachusetts’ requirements for RN hours were separately assessed. In California, enforcement records were scrutinized to identify homes fined for non-compliance, and waivers granted due to staffing shortages were tallied. The report calculated the proportion of homes meeting state laws or district regulations.

As an example highlighted in the story, payroll records from Heritage Hills Rehabilitation & Healthcare Center in Smithfield, R.I., showed that it had at one time 25% fewer nurses and aides than minimums required by state law. For its part, the nursing home said it provided high-quality care to all residents. Regardless, it wasn’t in trouble with the state, because Rhode Island does not enforce its staffing rule, according to the KFF story.

The heart of the issue lies in a severe shortage of nursing staff nationwide. With nearly 15,000 nursing homes catering to 1.2 million residents, the demand for nurses and aides far exceeds the supply, resulting in dire consequences for those in need. Residents endure untreated bedsores, unattended hygiene needs, and increased risks of falls and injuries due to insufficient assistance. Chemical and physical restraints sometimes replace proper care, further compromising the residents’ well-being.

The Biden administration plan to address the staffing crisis in nursing homes mirrors state-level efforts. These federal guidelines mandate increased staffing levels, yet they inherit similar enforcement challenges seen at the state level. Health inspectors, already under-resourced, lack the capacity to effectively monitor compliance, while broad exemptions for homes in labor-strapped regions further dilute the impact of these mandates.

“The administration’s plan also has some of the same weaknesses that have hampered states. It relies on underfunded health inspectors for enforcement, lacks explicit penalties for violations and offers broad exemptions for nursing homes in areas with labor shortages. And the administration isn’t providing more money for homes that can’t afford additional employees,” the KFF article notes.

The onset of the COVID-19 pandemic exacerbated staffing woes as it claimed over 170,000 lives in nursing homes and exacerbated workforce shortages. The persistently low wages offered to nursing assistants – averaging just $19 per hour – make positions in retail and fast-food sectors more appealing, resulting in an alarmingly high turnover rate of 50% annually among nursing home staff.

Moreover, nursing home operators and advocates argue that the root cause of staffing issues lie in Medicaid’s low reimbursement rates to nursing homes, which fail to cover operational costs adequately. Nursing home trade groups, citing operational challenges exacerbated by the pandemic, have challenged new federal regulations in court.

The existing workforce shortages and financial constraints faced by many facilities made the staffing mandate unrealistic, industry critics argue. Without substantial financial support accompanying these mandates, the viability of many nursing homes, particularly non-profit entities struggling to meet even state-level minimums, hangs in the balance.

In Rhode Island, where stricter staffing laws were to be enacted, Governor Daniel McKee halted enforcement citing industry financial woes and workforce shortages. This decision came despite ongoing critical deficiencies found in state inspections, including incidents of immediate jeopardy where residents’ lives were at imminent risk due to inadequate care.

Even non-profit nursing homes like Linn Health & Rehabilitation in East Providence were forced to shut down due to unsustainable Medicaid reimbursements.

Rick Gamache, CEO of Aldersbridge Communities, which owned Linn, called out the inadequate reimbursements as extending across the industry regardless of for-profit or nonprofit ownership status.

The Centers for Medicare & Medicaid Services’ (CMS) final staffing rule stipulates a minimum 3.48 hours per resident per day (HPRD), with specific requirements for RNs to be on-site continuously.

However, the efficacy of these requirements isn’t guaranteed and will hinge upon robust enforcement, experts like David C. Grabowski, a health policy professor at Harvard University, said.

Federal health authorities have a “terrible” track record of policing nursing homes, Grabowski said.

“If they don’t enforce this,” he said, “I don’t imagine it’s going to really move the needle a lot.”

And others, including those connected to ombudsman programs, which in each state help residents resolve problems in their nursing homes, warn that without stringent oversight and meaningful penalties for non-compliance, these regulations may fail to improve quality of care.

“Just setting a number doesn’t mean anything if you’re not going to enforce it,” Mark Miller, former president of the national organization of long-term care ombudsmen, told KFF. “What’s the point?”