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HHS releases long-awaited nursing home staffing proposal

Rule would mandate minimum staffing; falls short of some advocates' expectations

Secretary of Health and Human Services Xavier Becerra testifies to a Senate committee on March 22.
Secretary of Health and Human Services Xavier Becerra testifies to a Senate committee on March 22. (Bill Clark/CQ Roll Call)

The Biden administration released a proposed rule Friday morning that would mandate minimum staffing in nursing homes, but it fell short of what advocates had long been pushing for.

The long-awaited proposed rule would mandate each resident receive at least three hours of direct care per day, with 33 minutes of that care coming from registered nurses. That standard falls below what the average nursing home already provides, according to experts. But the government said Friday 75 percent of nursing homes would have to increase staffing to comply with the proposed standard.

“Establishing minimum staffing standards for nursing homes will improve resident safety and promote high-quality care so residents and their families can have peace of mind,” said Health and Human Services Secretary Xavier Becerra.

The rule also proposes requiring facilities have registered nurses on staff 24 hours a day, an increase from the eight hours per day currently required.

In all, it’s a blow for both patient advocates who wanted higher mandates and nursing home organizations that wanted no mandate at all.

“After repeated delays spurred by industry influence, we have a weak and disappointing proposal that does little to improve the quality of care or stop the mistreatment of nursing home staff,” said Rep. Lloyd Doggett, D-Texas, the ranking Democrat on the House Ways and Means Committee’s Health Subcommittee.

“Remarkably, CMS is proposing standards that are lower than what was recommended over 20 years ago, despite significant concern that those standards were inadequate. Seniors and individuals with disabilities, along with care workers, deserve a much stronger final rule.”

Katie Smith Sloan, president and CEO of LeadingAge, an organization representing nonprofit aging service providers, said the rule does nothing to address workforce shortages. Her organization opposes minimum staffing standards entirely.

“There are simply no people to hire — especially nurses,” she said. “The proposed rule requires that nursing homes hire additional staff. But where are they coming from? To serve older adults and families, nursing homes must have the resources, including staff, to serve them. Without that, there is no care.”

Currently, federal laws are vague. Nursing homes paid by Medicare and Medicaid must provide “sufficient” staffing levels on a 24-hour basis that ensures the well-being of residents.

There is no federal minimum number of staff or hours of care per day that the nation’s 15,500 nursing homes are required to provide to residents.

But a study commissioned by CMS, obtained by Kaiser Health News, found that nursing homes have median staffing levels of 3.61 hours per resident day, above what the Biden administration is proposing.

The administration, however, said its proposal exceeds standards that exist in nearly all states.

The proposal would stagger implementation for rural and underserved communities and allows for exemptions.

Rural facilities would have three years to comply with the 24-hour registered nurse staffing provision of the proposed rule and five years to comply with the proposed minimum staffing standards.

The Centers for Medicare and Medicaid Services will also expand audits of staffing data that nursing homes must report and begin new analyses of state inspection reports to ensure deficiencies receive the appropriate consequences, the agency said.

Biden vowed to set minimum staffing standards in nursing homes during his 2022 State of the Union address, thrilling advocates who say such requirements are long overdue.

Advocates had hoped the administration would at least set a minimum of 4.1 hours of direct care per resident per day, the standard recommended by a 2001 CMS study that concluded that number was necessary to avoid increased risk of harm.

The nursing home industry, led by the American Health Care Association, has lobbied extensively against a minimum standard, calling it an unfunded mandate and noting low Medicaid rates prevent nursing homes from meeting such requirements and persistent workforce shortages. About 62 percent of nursing home residents use Medicaid, according to the health care think tank KFF, which is formerly known as the Kaiser Family Foundation.

Unions and advocates for workers and patients point to low pay and working conditions that lead to high turnover.

Some nursing homes, particularly for profit entities, have come under scrutiny for hiding money through “related party transactions,” in which they pay for services to companies they own at inflated prices, making the nursing homes look less profitable.

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