Newly Proposed Nursing Home Staffing Regulations are Unlikely to Improve Level of Care

By Giulia Pastore

On September 1, 2023, the Centers for Medicare and Medicaid Services (CMS) released a proposed rule to establish minimum staffing requirements for nursing homes as part of President Biden’s Nursing Home Reform initiative. The Biden-Harris Administration announced its commitment to improving the safety, quality of care, and accountability in nursing homes in February 2022, after the Covid-19 pandemic took the lives of over 200,000 long term care (LTC) facility residents.

The Covid-19 pandemic exacerbated and exposed the consequences of inadequate staffing levels in LTC facilities and directed attention to the lack of oversight and the longstanding safety concerns that these facilities face.

Currently, federal regulations for nursing homes only require that staffing be “sufficient,” but failure to define “sufficient” has allowed for fatal inconsistencies in the level of care provided by LTC facilities across the country. Federal regulations require that a registered nurse (RN) be on site eight hours a day and that licensed nurse staff is available 24 hours a day, but these standards do not specify the type of staff that must be employed for each resident, how much time should be spent on patient care, nor do they provide a staff to resident ratio. Furthermore, lack of oversight and regulation allows for even the minimum staffing standards to go unmet.

Thousands of nursing homes go uninspected as a result of severely understaffed and underfunded survey agencies. There is doubt whether the proposed CMS staffing mandate could result in meaningful change for nursing home residents unless there is also an increase of surveyors to inspect nursing homes and respond to complaints of neglect and abuse.

Studies have shown that insufficient staffing in long term care facilities can lead to poor patient care and an increased risk of injury. If immobile residents are not properly repositioned they can develop pressure sores, which if left untreated can lead to serious infection and even death. Inadequate staffing in LTC facilities often results in residents being neglected for hours in unsanitary situations or can lead to patients falling while attempting to assist themselves.

Under the proposed rule, LTC facilities would be required to provide each resident with a minimum of three hours of direct care daily: 0.55 hours of this allotment would come from a RN and 2.45 hours of daily care would come from nurse aides. In addition, CMS would require a RN to be on site 24/7. These provisions would require LTC facilities across the country to hire additional nursing staff to avoid proposed penalties.

Some advocates are concerned that these new standards are not strict enough, but there is more widespread concern that nursing homes will be unable to comply with these minimum staffing requirements— calling the unfunded mandate “unrealistic,” given the labor shortage and high cost of care.

The Nursing Home Staffing Study, commissioned by CMS, estimates that LTC facilities would have to pay billions more in staffing costs to implement even the lowest proposed staffing minimums. The Staffing Study acknowledges the difficulties associated with implementing the proposed staffing requirements, such as nursing workforce shortages. Nevertheless, the data produced by the study indicated that additional staffing would increase safety and quality care for residents.

Currently, over 80% of nursing homes would need to hire additional nursing staff to meet the proposed requirements. However, for some nursing homes, these staffing minimums could be an impassible barrier. LTC facilities already report having difficulty hiring care workers, frequently citing a lack of funding and competition from higher paying agency positions as a major issue.

As part of the proposed rule, CMS included a “hardship exemption,” which may exempt LTC facilities that are unable to meet proposed minimum staffing requirements. To qualify, the LTC facility must demonstrate: low workforce availability, or that the facility is 20 miles away from the nearest LTC facility; good faith efforts to hire staff; and a financial commitment to staffing. This exemption could be extended on a yearly basis.  Comments on the proposed rule are due by November 6, 2023.

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