LeadingAge President and CEO Katie Smith Sloan

Despite minor concessions in a nursing home staffing mandate issued Monday, many providers were stunned by federal regulators’ intractable stance on minimums at a time when nearly all US facilities are confronting labor shortages.

The Centers for Medicare & Medicaid Services released a long-awaited final rule that increased the time operators must provide per-patient per day from a proposed 3.0-hour standard to a 3.48-hour standard.

The first three hours must be covered by registered nurses (0.55 hours per patient, per day) and certified nurse aides (2.45 hours per patient, per day). Facilities can use “any combination of nurse staff,” including licensed practical nurse and licensed vocational nurses, to meet the remainder of the time requirement, a CMS fact sheet said.

CMS also pressed forward with a 24/7 RN standard, though the agency said it would exempt nursing homes from having registered nurse coverage for up to 8 out of 24 hours a day “under certain circumstances.” A director of nursing also can count toward the rule’s 24/7 RN requirement, CMS said, noting a change that providers should embrace given a national RN shortage expected to persist through 2031.

Still, those adjustments were of little consolation to providers, many of whom were dismayed to see that CMS had embraced concerns voiced by consumer groups and unions but largely ignored provider warnings about their inability to comply with the mandate.

Nowhere are most more concerned than on the RN front.

“RNs are leaving the workforce, leaving the profession and those who are working typically choose to work in environments that are not long-term care,” LeadingAge President and CEO Katie Smith Sloan said in a statement late Monday. “The final rule does not include additional funds to pay RNs comparable or higher wages to work in long-term care.”

She noted that this element alone will require an additional 3,267 additional nursing home RNs. 

“The final rule does not include any support for recruitment and training of needed staff,” she added. “While the phase-in provides some necessary time for recruiting, how can providers hire more RNs when they do not exist?”

‘Extinction event’

Few providers held back in their criticism Monday, after months of hoping that CMS would deliver some changes to make the rule, the first of its kind, more palatable.

“The extra increase in staffing hours and the 24/7 RN requirement are not even possible with growing patient numbers and a shrinking talent pool. It’s a fairy tale. They don’t exist,” Neil Pruitt, Chairman and CEO at Georgia-based PruittHealth, told McKnight’s Long-Term Care News.

“We invest heavily in programs to recruit and retain nursing staff with higher wages and referral bonuses. We’ve even set up a program to attract international nurses. It is still not enough to meet the demand,” he added. “Rural communities will eventually bear the brunt of this final rule forcing health care centers to turn away patients because there simply are not enough caregivers in the workforce to meet the mandated staffing requirements.”

The 329-page rule followed an announcement from the White House Monday that the final rule would increase the minimum staffing hours. CMS had asked for feedback on a 3.48-hour alternative in the rule it proposed in September.

The final rule itself revealed more about CMS officials’ interpretation of more than 46,000 comments received in response to its first proposal.

“The resulting, evidence-based final rule appropriately prioritizes quality and safety of care gains from establishing minimum standards for nurse staffing, including RNs and NAs, with a particular emphasis on the direct care delivered at the bedside, and effective implementation of these new requirements,” the agency said. “These new required minimum staffing requirements will increase staffing in more than 79 percent of nursing facilities nationwide, and the specific RN and NA HPRD requirements exceed the existing minimum staffing requirements in nearly all States.”

Many expressed dismay at provider-backed changes and additions that were not included.

Before the rule’s release Monday afternoon, Good Samaritan Society CEO Nate Schema told McKnight’s the only things that would make it more feasible for his organization’s 132 facilities would be the option to provide some RN coverage via remote services and federal funding to cover the cost of hiring more staff — and more expensive agency staff when local workers are unavailable.

Just 5% of the largely rural provider’s facilities meet the 24/7 RN rule currently. At the proposed standards, a Good Sam analysis showed the provider would need 207 additional RNs and 400 new aides. Monday’s rule would drive those numbers up.

“It’s impossible to imagine how a skilled nursing facility in a town of 1,500 people will be able to find 24/7 coverage for an RN when they already have open RN positions they can’t fill today,” he said. “Instead of requiring an RN to be in a rural nursing home 24 hours a day, why not create a pathway to complement care with virtual RN services? Virtual care is a common-sense, forward-looking approach to support resident care needs while protecting access to care. It’s disappointing that CMS seemingly looked backwards by not including this flexibility in the final rule.”

In New Hampshire, 89% of providers surveyed by the New Hampshire Health Care Association Monday said they’d be unable to meet the 24/7 RN rule without hiring agency. Some 69 of the state’s 74 nursing homes participated, demonstrating the urgency with which operators view the issue.

“It’s perverse that the Biden Administration has decided to further enrich staffing agencies, and put more strangers by the bedside,” said association President and CEO Brendan Williams.  “It’s aimed a regulatory Death Star at nursing homes. This news is Christmas in April for predatory staffing agencies. For many nursing homes, it’s an extinction event.”

‘Fight is not over’

The American Health Care Association/National Center for Assisted Living said Monday that CMS had overstepped with a “one-size-fits-all enforcement approach that is deeply flawed.”

“Staffing minimums are a 20th Century solution for a 21st Century problem. Now the Administration has gone ever farther than originally proposed, making these requirements even more out of touch and out of reach,” said AHCA President and CEO Mark Parkinson.

“This fight is not over,” he added. “We will vigorously defend our nursing home members, those they serve, and those they employ. Momentum against the mandates continues to build among both Democrats and Republicans, and we hope to work with lawmakers on more meaningful solutions that would help boost the long term care workforce. For the sake of our nation’s seniors and their caregivers, we must find a better way.”

Lawmakers were quick, too, to take sides on the final rule.

US Sen. Deb Fischer (R-NE), sponsor of a Senate bill that would block the mandate from being implemented, on Monday night called the final version “misguided.”

“Instead of listening to the overwhelming, bipartisan opposition to this rule, the administration has decided to plow ahead,” she said. “This misguided rule will devastate nursing homes across this country and worsen the staffing shortages we are already facing.”

But Sen. Bob Casey (D-PA), chairman of the U.S. Senate Special Committee on Aging, applauded the rule as a way to “protect the safety of nursing home residents.”

“Our nation’s 1.2 million nursing home residents expect and deserve high quality care that prioritizes health, safety, and human dignity,” said Chairman Casey. “But for too long, many nursing homes have not met this threshold due to understaffing and inadequate enforcement. This rule, which both establishes staffing minimums and improves enforcement of nursing home violations, is an important step towards ensuring that all nursing homes are providing the care that all residents need and deserve.”

Schema said he was worried about what the rule would do for consumer confidence in nursing homes, already dragged through the mud over COVID policies they often had no control over. The rule states that nursing home granted exemptions will be indicated on Care Compare, leaving patients in rural areas where standards are hard to meet confused about the quality of care being delivered.

“It rattles and shakes consumer confidence, and I don’t see how this rule does anything but continue to erode that confidence,” Schema said. “This has the opposite impact that the administration is trying to adhere to, and at the same time, I don’t know where these seniors are going to go for care” if facilities are pressured to reduce admissions to demonstrate full compliance.

Echoing ongoing concerns about possible staffing-related closures, Schema said Good Sam would “fight like heck” for residents and family members to keep care as close to home as possible. All options are on the table, ranging from working with Congressional representatives to pursuing legal action.

First step

But success cannot be assumed. On Tuesday, Good Sam and thousands of other nursing home operators will dig into the rule’s minutiae and start staging the work they’ll need to do over the next weeks, months and years.

The first element to come into play will be an updated facility assessment. Providers must complete their first assessment using ramped up standards within 90 days of the rule’s official publication in the Federal Register. 

CMS Monday finalized that facilities must use evidence-based methods and include behavioral health considerations in their plan; adjust those plans as necessary based on any significant changes in the resident population or needs; and include input from nursing home leaders, direct care staff, union representatives and residents and family members. A staffing plan for recruitment and retention must then be built around that assessment.

“Acuity-based staffing will require systematic use of resident assessment data to drive staffing levels,” said Brian Ellsworth, vice president for public policy and payment transformation at Health Dimensions Group. “This is going to be something new for many facilities who, up to this point, have been preoccupied with simply finding any staff.”