Industry says Biden administration’s rule mandating staffing levels for nursing homes is ‘impossible’ for them to meet

By Melissa Patrick
Kentucky Health News

A new law that sets minimum staffing requirements for federally funded long-term care facilities will require many of them to hire more nurses and nurse aides. It has been met with push-back from the nursing-home industry.

Morgan Jemtrud, director of communications for the Kentucky Association of Health Care Facilities and the Kentucky Center for Assisted Living, told Kentucky Health News in an email that the staffing mandate is not attainable for several reasons, including the health-care workforce shortage.

“The staffing mandate is impossible. CMS estimates it will cost around $300,000 per building (AHCA estimates more), but there is no funding to support the implementation of the rule,” said Jemtrud. “Also, the required staff are simply not available. RNs are in demand across all health -care sectors, and no pipeline is being built to produce the number of RNs this rule requires.”

Jemtrud was referring to an analysis from the American Health Care Association, a nursing-home lobby, that says meeting the mandate would require nursing homes to hire more than 100,000 more nurses and nurse aides at an annual cost of $6.8 billion. The analysis also says 94% of nursing homes were not meeting at least one of the proposed staffing requirements.

New staffing requirements

The “Nursing Home Minimum Staffing Rule” requires all nursing homes that receive Medicare or Medicaid payments to provide 3.48 hours of direct nursing care per resident per day, including a defined number for registered nurses (0.55 per resident per day) and nurse aides (2.45 hours per resident per day).

“This means a facility with 100 residents would need at least two or three RNs and at least 10 or 11 nurse aides as well as two additional nurse staff (which could be registered nurses, licensed professional nurses, or nurse aides) per shift to meet the minimum staffing standards,” says a White House fact sheet about the rule.

It will also require facilities to have an RN onsite 24 hours a day, seven days a week, to provide skilled nursing care.

The new staffing requirements will be phased in over three years, except at rural facilities, which will get up to five years. The law allows for some “limited, temporary exemptions” for facilities in areas with workforce shortages that demonstrate a good faith effort to hire the required staff.

Within two years, most homes must provide an average of at least 3.48 hours of daily care per resident. About 6 in 10 nursing homes are already operating at that level, according to a Kaiser Family Foundation analysis. But the analysis says only 19% meet the defined number of hours required for RNs (.55)  and nurse aides (2.45) that is required under the full implementation of the law.

“When facilities are understaffed, residents may go without basic necessities like baths, trips to the bathroom, and meals – and it is less safe when residents have a medical emergency,” said the fact sheet,  noting that it will also “ensure that workers aren’t stretched too thin by having inadequate staff on site.”

Brice Mitchell, spokesperson for the state Cabinet for Health and Family Services, told Kentucky Health News in an email that the administration is reviewing the federal rule and its impact.

“Medicaid funds 70% of all long-term care in the state and there is ongoing work to expand a nurse career ladder to help increase recruitment,” Mitchell said. “At this time, we are unable to determine the number of Kentucky nursing homes that don’t meet the new federal rules.”

Push-back on the new mandate

Denise Wells, executive director of the Nursing Home Ombudsman Agency of the Bluegrass, said her group was “very pleased” with the 24-hour RN requirement, but didn’t think the minimum hours per resident per day went far enough.

She said  the 24/7 RN requirement is important because the acuity level of patients has increased over the years, meaning patients need more assistance with their activities of daily living than ever before. And, she said, “Medical emergencies don’t just happen for eight hours of the day; they can happen 24 hours a day.”

Wells said they were disappointed in the hours per resident per day only being 3.48 because research shows that the minimum care that an average resident needs is 4.1 hours per day.

“And that is simply to avoid negative health outcomes,” she said. “It’s not to live their best lives, it’s not to have the greatest quality of life, it’s just to have that minimum care provided.”

Wells called the new staffing rules a “good first step.”

“We are trying to make sure that the message is that this is not the ceiling; that it’s a floor,” said Wells. “It’s the absolute minimum, but facilities should be staffing higher than this. . . . Nursing homes are required to staff to sufficient levels to meet resident needs, and so if they have residents that their care plan indicates that they need more than the 3.48 hours per day, then the facility needs to staff to meet that need.”

Jemtrud with KAHCF and KCAL was asked about the financial impact of the rule. She said Kentucky nursing homes are already financially strained and there are no funds to help meet the new requirements.

“Before this rule, 79.9% of Kentucky facilities are in distress or at risk of financial distress using the Altman Z-score,” Jentrud said, citing a formula used to determine a company’s risk of bankruptcy.

“CMS estimates the total cost of the final rule at about $4.3 billion per year, but AHCA continues to estimate the cost above $6 billion per year,” she said. “There are no funds from Medicare, Medicaid, or other payers to increase payment rates to providers for any of the rule requirements.”

Wells, asked how facilities can address the health-care workforce shortage, said her group prefers to call it a “job quality crisis” caused by low pay, poor conditions and little support.  She pointed to reports from the National Consumer Voice for Quality Long-Term Care that have showed how nursing homes hide profits, and said there is not enough transparency in how Medicaid and Medicare dollars are used these facilities.

KFF Health News also points to researchers who are “skeptical that all nursing homes are as broke as the industry claims or as their books show. A study published in March by the National Bureau of Economic Research estimated that 63% of profits were secretly siphoned to owners through inflated rents and other fees paid to other companies owned by the nursing homes’ investors.”

In a lengthy statement from the American Hospital Association, Stacey Hughes, AHA executive vice president, said, in part, “CMS’ one-size-fits-all minimum staffing rule for nursing homes creates more problems than it solves and could jeopardize access to all types of care across the continuum, especially in rural and underserved communities that may not have the workforce levels to support these requirements.”

The American Health Care Association issued a statement in opposition of the mandate and said the industry will keep pressing Congress to overturn the regulation.

“While it may be well intentioned, the federal staffing mandate is an unreasonable standard that only threatens to shut down more nursing homes, displace hundreds of thousands of residents, and restrict seniors’ access to care,” Mark Parkinson, CEO of the AHCA, said in a statement. “Issuing a final rule that demands hundreds of thousands of additional caregivers when there’s a nationwide shortfall of nurses just creates an impossible task for providers. This unfunded mandate doesn’t magically solve the nursing crisis.”

The mandate also implements stronger transparency measures to ensure nursing home residents and their families know when a nursing home is using an exemption, according to the fact sheet.

Guthrie expresses concern

Jemtrud said industry associations will “continue to reach out to Congress where there’s been bipartisan support for helpful legislation.”

“Providers have been hosting legislators for visits within their facilities to share firsthand the challenges they’re facing,” she wrote. “Also, the AHCA/NCAL Congressional Briefing scheduled June 3-4 will allow members to discuss their concerns directly with members of Congress on Capitol Hill.”

On Tuesday, U.S. House Republicans at a House Energy and Commerce health subcommittee voiced their concerns about the new staffing mandate.

The subcommittee chair, Republican Rep. Brett Guthrie of Kentucky’s Second District, said he was “extremely concerned” about the mandate along with the 80/20 rule which requires agencies that provide home- and community-based services to spend 80% of their Medicaid payments on compensation for workers who directly provide care.

Guthrie said both rules “threaten access to long term care services for Medicaid beneficiaries by setting arbitrary staffing and pay standards. . . . This approach simply won’t work.” He added later, “These rules come at a time where we have seen more than 500 nursing home facilities close since the start of the pandemic and where we have 150,000 fewer long-term care workers than we did before 2020.”

Kentucky Health News is an independent news service of the Institute for Rural Journalism and Community Issues, based in the School of Journalism and Media at the University of Kentucky, with support from the Foundation for a Healthy Kentucky.

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