Battle brewing over Biden’s nursing home staffing requirements

A major fight is brewing between the Biden administration and the powerful nursing home industry over a proposed minimum staffing requirement for the nation’s 15,500 nursing homes. 

President Biden last year announced a slate of nursing home reforms and vowed staffing minimums would be among them. The new rules are still under review and could be released any day. 

“After 20 years, it’ll make a huge difference to have a minimum standard — assuming that the standard is reasonable,” said Charlene Harrington, a professor emeritus at the University of California at San Francisco who researches the impact of nursing home staffing on care quality.

Advocates have been calling for such a requirement for more than two decades, arguing that residents are safer and have better care with more staff, but the industry has successfully resisted.

Then the coronavirus pandemic hit. More than 200,000 nursing home residents and staff died from the virus, exacerbating the existing concerns and forcing federal officials into action. 

“Nursing homes were getting so much attention during COVID. And the impact on residents was getting so much attention that it really did lay bare the issues that have really been long-standing areas of concern,” said Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care.

The rule has yet to be released, so it’s not clear what will be proposed. The Centers for Medicare and Medicaid Services (CMS) has been conducting a study since last year to inform its minimum staffing proposal. 

The agency initially said it planned to release the rule in the spring. It has been under review by the White House Office of Management and Budget since May 30. 

But industry groups say any federal standard is unfeasible because of a nationwide staffing shortage made worse by the pandemic. They say it also amounts to an unfunded federal mandate because Medicaid reimbursement rates are too low. 

“This discussion of mandated staffing ratios cannot be divorced from the current reality: There are too few people available to hire,” Janine Finck-Boyle, vice president of health policy at LeadingAge, which represents nonprofit nursing homes, said in a statement. 

LeadingAge doesn’t specifically oppose a federal standard but wants the government to meet a very specific set of criteria before setting a minimum ratio. For instance, the group wants Medicaid to cover at least 95 percent of the cost of care, as well as federal assurances there are no long-term care workforce shortages.

Advocates contend the workforce shortage and high turnover rates can be solved by making the job more attractive with higher pay and better benefits. 

“You don’t have a staff shortage, you’ve got a good job shortage. You have to pay these people, have to provide them support,” said Mark Miller, Washington, D.C.’s, long-term care ombudsman. 

“There are people out there that want to work,” Smetanka added. “It’s just right now they’re not wanting to work in nursing homes.” 

But the industry groups said wages aren’t the only issue, and the pandemic has led to historic caregiver shortages. 

Most nursing home residents rely on Medicaid, but labor costs keep increasing, and the program only pays about 86 cents on the dollar, the American Health Care Association said. 

The group, which represents 14,000 long-term care facilities, has said nursing homes would be forced to close without any federal workforce help.

Nursing home staffing rules haven’t changed since 1987, and there are no formal federal standards.

Under federal law, facilities are required to provide 24-hour licensed nursing services that are “sufficient” to meet the nursing needs of residents. Facilities must also use the services of a registered nurse at least eight consecutive hours a day, seven days a week.

The “sufficient” rule is too vague, experts and advocates said, and facilities have not been held to a high enough standard. 

A key study by CMS in 2001 found that at a minimum, facilities should provide 4.1 hours of direct care per resident per day to ensure they’re safe from falls and other harms. CMS recommends nursing homes meet that level, but it’s not a formal policy.  

But most U.S. nursing homes don’t meet that standard, and advocates said residents are generally sicker and need more care now than 20 years ago.

Most states have their own requirements, but they’re almost all lower than the federal recommendation. Only D.C. requires 4.1 hours; some are less than half that.

Miller said 60 to 70 percent of the complaints his office receives are staffing-related.

“Staffing is at the root of the issue, whether it’s a care issue or a resident rights issue,” Miller said.

Miller said his office is currently investigating a facility that was only giving residents water during mealtimes, because they didn’t have enough staff to take people to the bathroom through the course of the day. Facilities are required to have fresh water at every residents’ bedside

Miller recalled another situation where a woman tried to get up on her own to go to the bathroom because nobody was answering the call bell. She fell, and suffered an injury.

“I think that happens with staff here in the District, they are wanting to do a good job, but it’s really hard and it takes a toll on you when you know you’re not getting to everybody. You know when you’ve got 20 people to take care of and you’re not responding to them as they need, that takes a moral toll,” Miller said.

David Grabowski, a long-term care expert and professor of health policy at Harvard Medical School, said that reality was playing out across the country.

“Far too many nursing homes have staffed at levels that haven’t been safe for residents,” he said. “So we’ve had a lot of unfortunate examples of facilities really putting residents’ care and sometimes even their lives at risk by staffing below what a lot of experts would consider to be safe and acceptable standards.”