If implemented as proposed, the new rule will make good on a promise that Biden made in his 2022 State of the Union speech 18 months ago. Its release has been delayed for months amid a furious lobbying blitz by industry trade groups, who say that a severe staff shortage makes mandatory staff levels unworkable and too costly.
“It’s meaningless to mandate staffing levels that cannot be met,” Katie Smith Sloan, president and CEO of LeadingAge, an association of nonprofit providers, said Friday in response to the rule. Much of the rule would kick in within three years for urban facilities and five years for rural facilities.
While the industry reacted negatively Friday to the proposed rule’s release, the guidelines also were expected to disappoint advocates for better care in chronically short-staffed nursing homes, who have worried the new rule will not go far enough and merely enshrine mediocre levels of care.
The rule would require that each resident receive 2.45 hours of care from a nurse aide per day, plus 0.55 hours of care from a registered nurse.
The combined three hours falls short of what a government study two decades ago said was the optimal level for quality care: 4.1 hours per day.
The government has said that around a third of the nation’s 15,000 nursing homes met that ideal threshold before the pandemic. Some 35 states have imposed their own minimum staffing standards on nursing homes, but only 10 of those fall above three hours per day.
Secretary of Health and Human Services Xavier Becerra said staff minimums are required to make sure residents get the care the government and families are paying for. The Centers for Medicare and Medicaid Services, which oversees nursing homes and drafted the rule, estimates 75 percent of nursing homes will have to boost staffing to meet the requirements.
The new rule also would require that nursing homes have a registered nurse on duty at all times. A fifth of nursing homes would have to hire registered nurses to meet the requirement, the government estimates.
“When facilities are understaffed, residents suffer,” Becerra said in a statement. “They might be unable to use the bathroom, shower, maintain hygiene, change clothes, get out of bed, or have someone respond to their call for assistance. Comprehensive staffing reforms can improve working conditions, leading to higher wages and better retention for this dedicated workforce.”
The new requirements would replace the current vague staffing standard: whatever an operator determines is “sufficient” to assure the safety and well-being of residents.
Advocates for improved care for nursing home residents, who number more than 1.2 million, had been bracing to be disappointed.
Nursing home operators have put tremendous pressure on the Biden administration over the past year. They cite a dire shortage of employees to provide front-line care in nursing homes. The coronavirus pandemic caused the most immediate crisis in staffing, with 250,000 lost workers, according to the nursing home industry’s trade group, the American Health Care Association.
Without a supply of prospective workers, it will be impossible to meet the requirements of minimum staffing, the industry has argued. They also contend that Medicaid reimbursement rates need to be significantly increased if more workers are required in facilities.
“I just can’t understand how CMS is effectively trying to fix the roof while the house is on fire. It’s the beginning of the end for small town nursing homes,” said Nathan Schema, president and chief executive officer of the Evangelical Lutheran Good Samaritan Society, which operates a large chain of nonprofit nursing homes.
To address concerns in rural areas where workers are scarce, the Biden administration has provided a series of exemptions in the rule for facilities that can prove they can’t find staff even if they made good faith efforts to recruit and retain workers.
Advocates for better quality care in nursing homes say the industry’s high staff turnover rates point to the true problem: insufficient pay and poor working conditions.
The front-line workforce, which the government says represents about 500,000 people, is predominantly made up of women of color who earn low wages; it is common for them to work in multiple nursing homes simultaneously to earn a decent living, advocates say.
“They don’t have a hiring problem. They have a retention problem,” said Sam Brooks, director of public policy at National Consumer Voice for Quality Long-Term Care, a nonprofit advocacy group, citing average staff turnover in nursing homes of 50 percent per year. “We call it a job quality crisis, not a hireability crisis. It’s clear that nursing homes don’t pay workers well, they don’t treat them well, and they don’t provide adequate training.”
Brooks also noted that the government has limited information about the financial balance sheets of nursing homes, which increasingly are operated by owners with multiple related companies that provide services to the facilities, siphoning away profits.
Rachel Roubein contributed reporting