Xavier Becerra

US nursing homes would have at least three years to provide a minimum of 3.0 hours per patient day of direct care, 0.55 hours of that by a registered nurse and 2.45 hours by a nurse aide, under a first-ever proposed federal staffing mandate released this morning.

Non-rural nursing homes would have three years to comply with some elements of the rule, with rural facilities given five years to get up to speed on the overall hourly rate, the Centers for Medicare & Medicaid Services said in a press release accompanying its draft rule.

A requirement calling for 24/7 RN coverage, triple the current standard, would go into effect two years after the rule is finalized for urban providers, with another year granted to rural providers.

The proposal does include an option for hardship waivers, an element providers had pleaded for given the sector’s ongoing workforce crisis.

The mandated per-day levels are well below the 4.1 cumulative hours per day level that a CMS study recommended in 2001. But some 75% of nursing homes currently would need to add staffing to reach even the proposed compliance levels, CMS said.

And CMS still appears open to finalizing a more demanding final policy “to meet and maintain acceptable quality and safety within LTC facilities.” The agency specifically asked for feedback on changing to a 3.48 hourly standard.

“Establishing minimum staffing standards for nursing homes will improve resident safety and promote high-quality care so residents and their families can have peace of mind,” said Health and Human Services Secretary Xavier Becerra in a statement.

The long-awaited proposal is an unprecedented mandate that consumer advocates have pushed for and nursing home operators have staunchly lobbied against over the last 18 months.

Provider reaction chilly

Immediate provider reaction didn’t give any ground this morning, although the proposal appeared to take many of the industry’s concerns into consideration.

“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 an email this morning. “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.

“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.” 

The rule calls for RN coverage 24 hours a day, 7 days a week. Currently, those nurses are only required 8 hours per day, with LPNs able to cover the remaining 16 hours in a day. That could create a major hiring obstacle for nursing homes, who struggle to attract RNs that can often earn more working or find more flexible schedules in acute care and other settings.

Good Samaritan Society President and CEO Nate Schema said this morning that the RN provision would be “untenable” for many of his facilities, even those that already staff above a 3.0 minimum standard.

“It feels like the beginning of the end for small-town nursing homes,” said Schema, whose nonprofit organization is the nation’s largest rural provider. “The only thing this rule will do is force facilities to make impossible decisions. … Using a trivial number to measure up quality make no sense to me.”

A non-final proposal appeared in the Federal Register this morning, with official publication expected Sept. 6. Agency officials will then examine comments, including responses to a request for comment on the 3.48 hours option. Providers are expected to send in thousands of comments in hopes of influencing the final rule.

Other elements included are:

  • Changes to the facility assessment process, clarifying that facilities must use evidence-based methods in care planning, including consideration for those residents with behavioral health needs; conduct an assessment of each resident’s specific and adjustments for that population; and develop a staffing plan to maximize recruitment and retention of staff. Those changes would be implemented 60 days after the rule is finalized.
  • New proposed institutional payment reporting requirements that would require states to report to CMS on the percentage of nursing home Medicaid payments spent on compensation for direct care workers and support staff. AHCA had called for such a measure, following adoption of similar standards for home- and community based services.

CMS said it would enforce all of the finalized requirements through the existing survey process. The agency also
intends to display determinations of staffing compliance on Care Compare.

“We hope to convince the administration to never finalize this rule as it is unfounded, unfunded, and unrealistic,” American Health Care Association President and CEO Mark Parkinson said in a statement Wednesday. “We will vigorously defend access to care for our nation’s seniors and advocate for common sense solutions to improve quality and strengthen the long-term care workforce.”

Operators previewed study

CMS accidentally leaked Tuesday a study that was used to inform the staffing standard. The study, first reported exclusively by KFF Health News, said there was “no single staffing level that would guarantee quality care.” 

Providers have feared an “unfunded mandate” ever since the White House issued sweeping reform plans on Feb. 28, 2022. It was part of a 21-point reform plan supporting a “crackdown on unsafe nursing homes.” 

CMS said at the time that it planned to propose a related rule within one year, and then earlier this year, “in spring.” Both deadlines were missed, heightening speculation and anxiety, particularly among long-term care operators.

In the more than 18 months since the mandate was first mentioned in a White House briefing document, providers have grimaced at the concept of proscriptive staffing increases and pleaded with policymakers to recognize the harsh reality on the ground. Skilled nursing remains the only healthcare sector yet to recover from its pandemic staffing losses. Nursing homes lost 210,000 workers between February 2020 and December 2022, according to federal labor statistics.

At the current pace of modest job growth, nursing homes would not return to pre-pandemic staffing levels until 2027, AHCA and the American Hospital Association warned CMS Administrator Chiquita Brooks-LaSure in an April 3 letter. 

An updated AHCA study estimated in December that a federal staffing requirement based on the 4.1-hour daily standard would cost up to $11.3 billion per year and require hiring more than 187,000 new workers. More recently, its price tag was forecast at $11.7 billion of extra costs annually.

The proposal does not include any direct funding for hiring nurses. CMS said it would instead fund $75 million in financial incentives such as scholarships and tuition reimbursement.

“Funding for training programs – while a huge need, to be sure – is simply not enough at this point,” Sloan said in response to that news. “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. 

“Nonprofit and mission-driven nursing homes will be forced to reduce admissions or even close if this rule is finalized — a needless outcome that will cause older Americans and families to suffer,” Sloan added. “The Biden White House in 2022 set out to create policy based on research. If neither study nor practice nor reason guide our federal regulations, how can CMS justify them?”

Several states have moved to change or adopt new staffing standards over the last two years. In 2021, an extensive report by Consumer Voice found that only the District of Columbia exceeded the 4.1 hours per day standard, with 29 states requiring less than 3.5 hours per day of direct care and 15 of those falling below 2.5 hours per day.

Some states, including New York and Illinois, have moved to financially penalize providers who don’t meet new, higher direct care standards. But enforcement has been delayed, with providers urgently arguing that they can’t get enough applicants to fill vacant roles. Provider organizations have pleaded with CMS to take heed of those challenges as they moved to implement a mandate, calling for a phase-in period, exemptions for areas with extremely low unemployment or other considerations.

This is a developing story. Please check back frequently for updates.