If ‘now is the moment,’ what will the sector’s new federal staffing minimum look like?

If there’s one thing nursing home providers, consumer advocates and regulators can agree on when it comes to developing a minimum staffing rule, it might be just how difficult the job will be.

The Centers for Medicare & Medicaid Services has vowed to study the issue of staffing — the types and levels needed — and propose a  rule mandating coverage in one year, an effort the agency said is “at the heart” of a sweeping federal initiative to reform nursing home care.

The agency has been grappling with the relationship between staffing and patient outcomes for more than 20 years, commissioning prior studies but failing to update standards as part of other, broader healthcare initiatives. A proposed skilled nursing pay rule issued in April, however, underscores its commitment to formalizing a requirement next year. CMS said it intends to adopt a value-based incentive for nurse staffing hours and officially requested comment on 17 issues that could shape a direct care staffing minimum.

“This new evidence-based requirement will permanently strengthen staffing and quality of care by ensuring facilities have enough well-trained staff on duty to provide the services needed by the residents who rely on them,” a CMS spokeswoman told McKnight’s Long-Term Care News April 14. “Setting minimum staffing standards will further encourage facilities to pay a living wage, with competitive benefits, and provide opportunities for advancement. Quantitative standards will also enable closer oversight.”

Areas of focus unveiled by CMS in the 2023  proposed pay rule range from which positions to include to how to account for labor challenges to how potential costs — and whether better outcomes, such as fewer hospitalizations, might offset them. But the ongoing labor shortage itself seems unlikely to slow CMS’ effort.

“It seems like now is the moment,” said Steven Littlehale, a gerontological nurse specialist and data analyst with Zimmet Health Care Services Group. “We may actually see real, authentic minimum staffing requirements that go beyond the hard-to-define terms such as ‘sufficient’ staffing.”

History at work

The basis for today’s staffing rules dates back to the 1987 Nursing Home Reform Act, which called for 24-hour LPN coverage and eight hours of RN coverage each day. The law also triggered the need for “sufficient” staff to meet resident needs.

A 2001 study established an oft-cited but never mandated benchmark of 4.1 hours of per day, per resident care.

“For 20 years, we have been arguing that CMS needs to set minimum staffing standards,” Charlene Harrington, RN, Ph.D., professor emeritus at the University of California San Francisco School of Nursing, told McKnight’s. “Facilities, if they’re trying to make money, they just have too much of an incentive not to meet what we know the standard should be.”

Harrington wants CMS to adopt 24-hour RN coverage and take the overall minimum above 4.1 — though 60% of nursing homes operate below that threshold now, according to one March study. Washington, D.C, is the only area with a 4.1 requirement, and just 20 other states require per-day, per-patient care totaling 2.5 hours or more.

CMS said in April that a more stringent RN rule could be “an alternative or supplementary approach.

“Greater RN presence has been associated in research literature with higher quality of care and fewer deficiencies,” the agency wrote, adding that it also could reduce the likelihood of LPNs working outside of their scope of practice. 

Who counts?

Today’s nursing homes are much different from what they were in 1987, with residents often requiring care from a broader range of workers than the once-typical, long-stay resident. CMS acknowledged as much, noting increases in residents with dementia, psychiatric diagnoses and admissions from hospitals.

CMS also called attention to Arkansas’ rule including therapists and other non-nurses in staffing calculations. In April, Florida Gov. Ron DeSantis (R) signed a bill adding nursing, dietary, therapeutic and mental health workers into an overall staffing measure. The state still requires a 3.6-hour minimum weekly average of per-resident, per-day care provided by CNAs and licensed nurses and at least one CNA on shift per 20 residents.

Lori Porter, CEO of the National Association of Health Care Assistants, said her members support a minimum, and she’d like to see CNA coverage expressed in a ratio of staff to patients, ideally at 1:10. No matter how CMS approaches the metric, she wants the emphasis to remain on CNAs.

“People who truly know nursing homes realize that 90% of the care a resident requires is from a CNA,” she said. “In that setting, there are very few skilled needs of a resident that require a nurse.”

But Littlehale said care provided by non-nursing staff also should get serious consideration by CMS, given the increasing complexity of nursing home patients and specialties providers are implementing to care for them.

“We really need to encourage flexibility and creativity,” he said. “What about the facility that sees the value and has access to, for example, therapy aides or more social workers or rec therapy? These are really important players on the interdisciplinary team. Maybe based on your particular unique case mix, you want to really have more of them at the bedside for completely valid reasons.”

How to account for acuity?

Harrington noted the current rule requires more nursing care when patient needs increase, a provision she said has been largely ignored by regulators. She said CMS should move beyond past time-study methods and build on existing research using simulation models. That approach would provide a better understanding of how long certain care, such as assistance with activities of daily living, takes, and how those numbers might change based on a building’s patient population.

“There’s every evidence that the case-mix has increased over time since 2001, so as the acuity increases, the minimum standard probably needs to be higher than the 4.1,” she said.

The agency could base acuity on previous months’ MDS submissions to get a read on a facility’s average patient acuity level. In 2020, Harrington and Mary Ellen Dellefield of the San Diego VA outlined acuity categories based on the Patient Driven Payment Model, creating a guide for determining if nursing home staffing is adequate.

How to measure success?

Providers likely will have time to work up to new standards, and some observers suspect CMS may create tiered goals rather than a single hours perpatient, per day target.

One incentive would be funding made available through the SNF VBP program, which will likely add a staffing hours element in 2026. In proposing that measure, CMS said it would “provide a more comprehensive assessment of and accountability for the quality of care provided to residents and … drive improvements in staffing that are likely to translate into better resident care.”

There is little doubt that CMS will encourage compliance by making providers’ ability to meet  new staffing standards public. Against that backdrop, providers are concerned that a lack of workers could lead to penalties and reputational harm.

“Anyone who wants to can recommend that there be more staff, better staffing, more RN coverage, and we’re all for it — excepting there are no people,” Ruth Katz, senior vice president of public policy and advocacy for LeadingAge, said in early April. “There is sort of a fear that new requirements could be put out … and then nursing homes punished for not meeting the requirements when there’s just nobody out there to even apply.”

A March Innovation in Aging study found the cost of meeting acuity-based benchmarks would average more than $530,000 per facility. CMS has said it will consider adequate funding as part of its rule-making process, though it can’t increase its overall spending without Congressional approval.

UCLA health economist Ashvin Gandhi, Ph.D., said CMS should try to discern how legitimate financial concerns are. If CMS sets its metrics too high, he cautioned, it could lead some providers to reject more Medicaid patients or cut costs in other ways that “adversely affect” resident care.

“It’s obviously very important that we have standards of care and that facilities should be meeting those standards,” Gandhi said. “CMS does have to think really carefully about whether and to what degree facilities are going to be able to financially meet staffing requirements. You could have unintentional consequences.”