Biden administration unveils new rule on nursing home staffing levels

The Biden administration has introduced new regulations intended to increase staffing levels and improve patient care in nursing homes. (Photo via Getty Images)

The Biden administration has introduced a controversial set of new regulations intended to increase staffing levels and improve patient care in nursing homes.

The new staffing rule from the Centers for Medicare and Medicaid Services (CMS) has faced fierce opposition from the industry and Republicans in Congress. It establishes for the first time national minimum staffing requirements for nursing homes that collect taxpayer money through Medicare- and Medicaid-funded services.

The staffing requirements will be phased in over the next two to five years, and CMS has made provisions to grant exemptions for care facilities in rural areas, such as Indiana, where there’s a shortage of available caregivers.

An estimated 25% of facilities will fall under the rural area exemption. Many of Indiana’s long-term care facilities spend thousands recruiting foreign-educated nurses because of the state’s shortage, according to the Indiana Health Care Association/Indiana Center for Assisted Living (IHCA).

In a statement to the Indiana Capital Chronicle, IHCA President Paul Peaper called the decision “unrealistic” and “unfunded,” and said it would jeopardize access to care.

He noted that, unlike some other health care sectors, staffing for long-term facilities hasn’t recovered from COVID-19. It’s still 7.4% lower than pre-pandemic, according to the Bureau of Labor Statistics.

“Long-term care remains the only health-care sector that has yet to recover to pre-pandemic staffing levels and instead of supportive policies to help with recruiting, retaining and training caregivers, we are given an unreasonable edict. Our members remain committed to ensuring quality outcomes for our residents and are not opposed to staffing ratios if they are accompanied with the right financial and regulatory support. The rule includes neither,” Peaper said.

“This flawed and shortsighted policy will not move the needle in the right direction. We look forward to working with our Congressional delegation to support the bipartisan Protecting America’s Seniors’ Access to Care Act to prevent CMS from enforcing this overreaching mandate,” he added.

Indiana’s staffing in nursing homes lags behind the national average when it came to hours spent per resident day, according to a 2023 analysis from CMS.

The ideal range for best patient outcomes ranges between 3.8 and 4.6 hours per day across several positions, including registered nurses, licensed practical nurses and nurse aides. The national average sits at 3.76 hours but Indiana reported 3.51 hours, falling short across each of the three professions.

In a written statement, CMS said it believes that by improving working conditions and wages, improvements in the recruitment and retention of direct care workers will follow, enabling nursing staff to provide safer, higher quality care to all residents.

Inadequate staffing has long been considered the single biggest contributor to poor quality care in nursing homes.

Last November, Indiana Gov. Eric Holcomb and 14 other Republican governors sent Biden a letter objecting to the new rule and arguing that the nursing home industry is facing a workforce crisis, particularly in rural areas. The governors predicted that minimum staffing levels would “force over 80% of facilities nationwide to hire more staff” and result in many of them closing.

A map showing the variation in Hours spent Per Resident Day (HPRD) by state. (Map from CMS Nursing Home Staffing Study June 2023 report)

CMS officials said Tuesday they don’t expect the new rule to force any facilities to close, noting that some states have imposed even higher staffing level requirements with no resulting shutdowns.

The new rule has been two years in the making, and CMS has fielded more than 46,000 public comments on it from caregivers, residents, industry representatives and resident advocates.

Toby S. Edelman, a senior policy attorney for the Center for Medicare Advocacy and a national expert on long-term care, noted Tuesday that the new rule announced this week establishes only “the minimum permissible staffing levels” care facilities must meet.

“The rule does not end the discussion about staffing levels,” she said. “Under federal rules issued earlier, all facilities are also required to conduct, at least annually, a facility assessment. This process requires each facility to determine the actual nursing needs of its own residents and to ensure that it has enough staff and that its staff have the necessary skills to meet its residents’ needs. Properly implemented and enforced, the facility assessment process will require many facilities to implement higher staffing levels than the minimums announced today.”

Rule mandates 24-hour nurse availability

The specific provisions of the new rule include elements related to staffing, public disclosure and resident assessments:

Nursing care: Residents must receive at least 3.48 hours of nursing care per day, which would include at least 0.55 hours of care from a registered nurse per resident, per day, as well as 2.45 hours of care from a certified nurse aide per resident, per day.

Around-the-clock nurse availability: All homes must have a registered nurse on site 24 hours per day, seven days per week. The nurse must be available to deliver critical care to residents at any time.

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Self-assessments: Aside from meeting the new minimum standards, all facilities will be required to perform annual assessments to determine the actual level of staffing needed to meet all residents’ needs. Those assessments, which will be more detailed than those currently required, are intended to address the fact that many care facilities already meet the new minimum standards but are still failing to meet residents’ needs due to heightened levels of acuity or the need for one-on-one supervision.

Staff retention: Each facility will be required to at least develop a formalized plan to maximize their workforce recruitment and retention efforts. To help ensure compliance, CMS will also be requiring states, to which much of the enforcement efforts are delegated, to collect and report on the percentage of Medicaid payments spent on compensation for direct care workers and support staff.

The new rule also requires that providers allocate at least 80% of home- and community-based payments to direct care worker pay, targeting concerns about for-profit players in health care spaces. In Indiana, many nursing home facilities are owned by government entities to leverage more federal funds — but local units aren’t required to invest those dollars back into their centers.

CMS has promised to publicly report the spending data collected by the states, and the states themselves will also be required to report facility-specific data on publicly accessible websites.

Special provisions for rural facilities

The federal agency has also pledged $75 million to be spent on a national nursing home staffing campaign aimed at increasing the number of nurses working in long-term care facilities. As part of that effort, CMS will be providing financial incentives for nurses to work in nursing homes.

In announcing the new requirements, CMS acknowledged that some facilities are “experiencing challenges in hiring and retaining certain nursing staff because of local workforce unavailability.” To address that, the agency will offer waivers for the rule requiring a nurse to be on site 24-hours per day, and will also offer “financial hardship exemptions” to the staffing requirement.

The facilities that seek such an exemption will first have to show they’re in an area where the supply of nurses at least 20% below the national average as calculated by the U.S. Bureau of Labor Statistics and U.S. Census Bureau.

They’ll also have to provide documentation of good faith efforts to hire and retain staff, including the payment of competitive wages, and they’ll have to disclose the amount of money spent on nurse staffing relative to the home’s total revenue.

Facilities that are granted an exemption will then have to post a notice of its exemption status in a prominent, publicly accessible location inside the facility, and will have to provide any prospective residents with written notice of the exemption status.

Some homes will not be considered for exemption, including those on CMS’ list of special-focus facilities that have history of repeat, serious violations, and those recently cited for a pattern of insufficient staffing that has resulted in harm to residents.

For most facilities, the new staffing requirements will be phased in over the next two years, but that timeline has been extended to accommodate the needs of rural facilities where the workforce shortage is particularly acute.

Rural facilities will have 90 days to meet the new rule on facility assessments. They’ll have three years to meet the requirements on 3.48 hours of total nurse staffing and a 24-hour nurse, and five years to meet the more specific requirements of 0.55 registered-nurse hours per day, per resident.

Senior Reporter Whitney Downard contributed to this story.

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