The Biden administration is walking a political tightrope with its plan to impose minimum staffing levels on nursing homes.
The White House is facing criticism from the left and the right, and the proposal is dividing Democrats, especially some front-line members facing a difficult reelection in 2024. Those lawmakers, mostly from rural areas, argue that the proposal is too strict and would force nursing homes to close.
“In many parts of the country, America’s long-term care facilities are facing severe workforce shortage issues that are harming access to critical care for our nation’s seniors,” Sen. Jon Tester (D-Mont.), one of the Senate’s most vulnerable Democrats, wrote in a bipartisan letter.
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“With this in mind, we are deeply concerned that now is the worst possible time for the United States to establish the nation’s first federal staffing mandate for long-term care facilities.”
Democratic Sens. Joe Manchin (W.Va.), Maggie Hassan (N.H.) and Jeanne Shaheen (N.H.), and independents Kyrsten Sinema (Ariz.) and Angus King (Maine) also signed the letter, along with more than 20 Republicans.
On the House side, Rep. Greg Pence (R-Ind.) led a bipartisan letter with Democratic Reps. Jared Golden (Maine) and Chris Pappas (N.H.).
The lawmakers said the rule would result in “limited access to care for seniors, mandatory increases in state Medicaid budgets, and could most consequentially lead to widespread nursing home closures.”
Their arguments echo industry groups who 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.
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Almost 95 percent of nursing homes do not meet at least one of the three proposed staffing requirements, according to the American Health Care Association, a long-term care trade group that represents 14,000 nursing homes.
The rule “will only result in negative, unintended consequences for residents, staff, and the entire health care system,” the organization said.
President Biden last year announced a slate of nursing home reforms and vowed staffing minimums would be among them. 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 thus far.
The proposed rule was published Sept. 1 and attracted nearly 50,000 comments by the Nov. 6 deadline.
Nursing home experts said the massive amount of interest in the policy gives the administration very little room to maneuver.
“I think there is somewhat of a zero-sum nature to this, as it’s currently written,” said David Grabowski, a professor of health policy at Harvard Medical School.
“This hasn’t fallen across [traditional] party lines, and both sides are sort of worried about access issues, and I think both sides are worried about nursing home quality, and I’ve never thought of that as being an issue for the left or the right.”
Grabowski said he would like to see more political will behind giving nursing homes more money to meet the requirements.
The Centers for Medicare and Medicaid Services (CMS) said it will invest $75 million in boosting workforce recruitment and training, but Grabowski said that likely won’t be nearly enough to overcome the existing shortages.
Current law requires only that homes have “sufficient” staffing, but it leaves nearly all interpretation to the states.
The current law also requires nursing homes to have a registered nurse (RN) on duty for eight consecutive hours per day, seven days a week, and to have a licensed nurse — either an RN or licensed practical nurse — on site 24/7.
Among other provisions, the new proposal would require facilities to have an RN on staff 24 hours per day, seven days per week.
The proposal would also require nursing homes to provide at least three hours of direct care per resident per day, including at least 33 minutes from a registered nurse.
Alice Burns, an associate director of KFF’s Program on Medicaid and the Uninsured, said rural areas have historically suffered from workforce shortages, so she understands why lawmakers from rural districts are concerned about the proposal.
Still, she said their broad opposition is “puzzling,” because the proposal has a hardship exemption that would allow nursing facilities to maintain lower staffing levels if they met certain requirements.
Edward Miller, chair of the gerontology department at the University of Massachusetts Boston, said he could see the administration broadening the exemption for rural facilities.
“It’s one thing to raise the standard to create a mandate. But if it’s unrealistic for rural areas to satisfy that requirement, you think it would be in the administration’s interest, particularly with an election year, to either give them more time or just … modify the standard or waive it altogether,” Miller said.
“There is plenty of opportunity for the administration to modify this to reflect the realities on the ground, particularly in low resource areas,” he added.
On the flip side, other Democrats and consumer and nursing home advocates, including unions, want the administration to strengthen the requirements. They said the rule was a positive step, but overall doesn’t go far enough.
“Residents deserve the best of care from highly trained, fairly compensated, and sufficiently numbered staff. We therefore strongly urge you to quickly strengthen and finalize” the proposal, wrote Reps. Lloyd Doggett (D-Texas), Jan Schakowsky (D-Ill.) and 99 other House Democrats.
“Our nation’s 1.2 million nursing home residents deserve high quality care that prioritizes their safety. The proposed rule takes a vital step towards ensuring residents receive this high quality care by establishing commonsense staffing minimums and improving enforcement,” Sen. Bob Casey (D-Pa.) wrote in a letter with 11 other Senate Democrats.
Casey, who is facing a Republican challenger next year, also called for more support to help nursing homes comply with the new rules.
“We urge CMS to provide for strong enforcement of a final staffing standard while ensuring state survey agencies and their staffs are adequately resourced to conduct this important work,” the lawmakers said.