Biden Admin’s Proposed Nursing Home Staffing Level Rule Sees Pushback

Admin says proposal would "crack down" on facilities that endanger residents

Care giver walks with nursing home resident at a Quality Life Services facility in western Pennsylvania. Courtesy of the Pennsylvania Health Care Association

New guidelines for staffing levels at nursing homes around the U.S. by the Biden Administration have been met by some with pushback on the proposals from nursing home associations, while some groups representing nurses say the proposals do not do enough to meet the needs of staff and residents.

The White House says the new initiatives target the safety and quality of care in nursing homes, with the central theme of cracking down on establishments that “chronically understaff their facilities—resulting in poor, substandard care that endangers residents.”

In his State of the Union address last year, President Biden said his administration would work to “protect seniors’ lives and life savings by cracking down on nursing homes that commit fraud, endanger patient safety, or prescribe drugs they don’t need.”

Despite the administration’s touting of the proposal as a positive, nursing home associations around the country have expressed reservations about the proposal, which is now in a 60-day public comment period.

RN’s On-Staff 24/7

A key point of the proposal, directed by the Biden Administration through the Centers for Medicare & Medicaid Services (CMS), will be to set a federal floor for staffing levels at all facilities that receive Medicare and Medicaid dollars.

Proposed requirements include having a Registered Nurse on-site 24/7, with three hours of care per resident per day, including 0.55 hours from RNs and 2.45 hours of care from a nurse aide per resident per day, exceeding existing standards in nearly all states, according to the Department of Health and Human Services (HHS). 

CMS estimates the proposals will require approximately three-quarters of facilities to hire more staff to comply with the rule.

A resident receives a fourth dose of the coronavirus vaccine at a nursing home after Israel approved it for people over 60 in Tel Mond, Israel, on Jan. 6, 2022. Amir Levy/Getty Images

The rule would be the first of its kind, with current guidelines being decades old as directed by the Nursing Home Reform Act of 1987, which only stipulates “sufficient” staffing but without further guidance.

The proposal has a lower suggestion for time spent on each resident per day than a CMS study from 2001, which proposed 4.1 hours per resident per day.

A draft study released in recent weeks and later retracted by CMS concludes there is “no obvious plateau at which quality and safety are maximized,” a conflicting data point when compared to the proposed rule. Groups opposed to the rules have used the conflicting studies to oppose the proposal, while nursing advocate groups argue CMS is not going far enough.

The administration notes that some facilities, particularly in rural areas, could have trouble beefing up staff levels to meet the new guidelines. They say it is mitigated by giving rural areas three years to meet the 24/7 RN requirement and five years to meet the other guidelines in the proposal.

Pushback from Nursing Home Associations

Despite the administration’s enthusiasm for the changes, nursing home associations have voiced concern about the implications of them on healthcare facilities nationwide.

The American Health Care Association (AHCA), which represents more than 14,000 nursing homes and other long-term care facilities across the country that provide care to approximately five million people each year, called the announcement unfathomable.

“It is unfathomable that the Biden Administration is proceeding with this federal staffing mandate proposal,” AHCA President and CEO Mark Parkinson said in a statement to The Epoch Times. “Especially when just days ago, we learned that CMS’ own study found that there is no single staffing level that would guarantee quality care.”

Parkinson went on to say that the rules pose a threat to the industry, as it is currently facing “the worst labor shortage” in the “sector’s history.” He added the mandate is “unfunded” and will cost “billions…each year,” which will “worsen” the current “crisis.”

He also criticized the administration’s policy for penalizing facilities that “can’t achieve the impossible” because of the lack of “tens of thousands of nurses that are simply not there.”

“Already, hundreds of nursing homes across the U.S. have closed because of a lack of workers,” he said. “We hope to convince the administration to never finalize this rule as it is unfounded, unfunded, and unrealistic. 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.”

State nursing home associations have voiced their concerns as well, with Alabama’s Nursing Home Association President and CEO Brandon Farmer telling Montgomery’s NBC affiliate the proposal is unrealistic in its timing and implementation.

Care giver visits with a nursing home resident at a Quality Life Services facility in Pennsylvania. Courtesy of the Pennsylvania Health Care Association

“The pool in the universe of applicants to draw from has shrunk since COVID, the pandemic, and then you’re competing with other health care providers along the continuum, hospitals, private physician offices,” Farmer told the outlet. “So it’s very impactful.”

Farmer estimates it would cost each facility in Alabama roughly $300,000 a year to implement on top of current expenses.

“It certainly has the opportunity to create a financial situation and a regulatory situation that those owners have to make some decisions,” he explained, “and in doing such, that impacts someone’s access to care.”

He believes the issue should be handled on a case-by-case basis, not as a one-size-fits-all approach.

“This is not a one-size-fits-all situation,” he said. “It’s something where I believe that the state is taking the right steps to try to create the jobs and try to create the workforce to serve in health care. We are certainly receptive and working with them.”

Some Say Proposal Is Inadequate

Of the rule proposal, Richard Mollot, executive director of the Long Term Care Community Coalition, a nonprofit organization dedicated to improving nursing home quality, believes CMS should stick with the 2001 recommendations.

“Overall, the proposed staffing requirement falls far short of what residents need to be safe no matter live with dignity,” Mollot told The Epoch Times. “The one positive component is the requirement that nursing homes have RNs 24/7. The current requirement is to have 24/7 professional nurses, but only eight hours of that is required to be performed by an RN.”

He said the proposal would not be beneficial for LPNs, for whom CMS proposes no minimum staffing requirements.

“Overall, I would say that it is very bad for all nurse staff, since it essentially puts the government’s imprimatur on staffing levels that are far below the current average,” he said, adding it wasn’t beneficial for residents either for the same reasons.

Of the nursing home industry’s claims that the CMS proposals are impossible to achieve, he said there isn’t data to back that up.

“The nursing home industry has been claiming for decades that it doesn’t get enough money to provide good care and that it is impossible for them to find nurses to improve widespread short-staffing levels,” he explained. “There are no independent data verifying either of those claims. The fact of the matter is, their own self-reported data indicate nurse turnover rates of over 50% on average, with many facilities having over 100 percent turnover.”

He also said he believed the industry had the capacity to meet the proposal, but even if not, it did not matter.

“Eighty-five percent of nursing homes currently meet or exceed the three-hour per resident day (HPRD) minimum in the proposal,” he said. “Yes, there will be some changes, especially, for many facilities, an increase in the RN hours in the building. But, fundamentally, it really does not matter. Nursing homes are not supposed to be run like warehouses for vulnerable humans.”

He added his belief that CMS failed to follow through on its promise to ensure nursing home residents receive the care they deserve and that they are paid to provide.

“CMS should take a step back, commission an evidence-based study on how much nursing time it takes to provide decent care, and formulate a new proposal based on meeting those needs.”

Bi-Partisan Concerns

The AHCA, in urging the administration to reevaluate the proposed rule, gave insight to politicians across the aisle who are opposed to the regulations, as well as various other healthcare organizations.

“At a time when rural states like Montana are experiencing challenging staffing shortages, it’s completely unacceptable for the Biden Administration to impose a one-size-fits-all staffing mandate that will only make things harder on rural nursing homes,” said U.S. Senator Jon Tester (D-MT). “This is just the latest example of Washington bureaucrats displaying how little they understand about the challenges rural America faces, and I’ll continue to fight back against burdensome mandates that simply do not work for communities across Montana.”

President Joe Biden signs an executive order directing the Department of Health and Human Services to ensure access to abortions while Vice President Kamala Harris, HHS Secretary Xavier Becerra, and Deputy Attorney General Lisa Monaco look on at the White House in Washington, on July 8, 2022. Samuel Corum, AFP/Getty Images

U.S. Rep. Cathy McMorris Rodgers (R) said the proposal fails to acknowledge the reality.

“Rather than helping to serve that goal, today’s proposed rule fails to acknowledge the realities that nursing homes are facing and will harm more seniors than it helps,” she said. “The rule will put nursing homes—particularly in rural areas—in an impossible dilemma as they grapple with how to manage current occupancy levels with the insufficient workforce available to meet the requirements…A one-size-fits-all mandate for nursing homes will not bring the results that the Biden administration hopes to achieve.”

The American Hospital Association also seeks to have the administration take another look at a one-size-fits-all approach.

“It is a highly dynamic process requiring flexibility and clinical judgment that accounts for patient needs, facility characteristics and the experience and expertise of the care team,” said Ashley Thompson, Senior Vice President for Public Policy Analysis and Development at AHA. “...Implementing a numerical staffing threshold could drive nursing homes to further reduce capacity or close in order to meet the requirements.”

Why Admin Says It’s Needed

As provided by The White House in a “fact sheet,” these proposed regulations come at a time when the nursing home industry receives nearly $100 billion from taxpayers annually.

Despite this vast sum, many nursing homes are persistently understaffed, the administration said, leading to residents suffering from subpar care and occasionally facing life-threatening risks.

Understaffed nursing homes can leave residents deprived of basic necessities, including hot meals and regular baths. Workers, also stretched thin, face burnout from the incessant struggle to provide the quality of care they believe their residents deserve.

This issue was exacerbated during the COVID-19 pandemic. Over 200,000 nursing home residents and workers succumbed to the virus, making up around one-fifth of all COVID-19 fatalities in the U.S., the administration noted.

The administration also says there is growing concern about an increasing trend of private equity firms and large corporations buying nursing homes, often cutting staff to boost profits.