Nursing homes face minimum staff rule for first time

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Nursing homes face minimum staff rule for first time

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The Biden administration on Friday released a proposed rule requiring the nation’s nursing homes to hire minimum numbers of front-line caregivers, a long-anticipated response to decades of complaints about neglect and abuse in an industry that critics say is unprepared for the tsunami of seniors heading its way from the baby boom.

If implemented as proposed, the new rule will make good on a promise that Biden made in his 2022 State of the Union speech 18 months ago. Its release has been delayed for months amid a furious lobbying blitz by industry trade groups, which say that a severe workforce shortage makes mandatory staff levels unworkable and too costly.

“It’s meaningless to mandate staffing levels that cannot be met,” Katie Smith Sloan, president and CEO of LeadingAge, an association of nonprofit providers, said Friday in response to the rule.

Much of the rule would kick in within three years for urban facilities and five years for rural facilities. Even with the delay, Mark Parkinson, the president and CEO of the American Health Care Association, the largest industry trade group, called it “unfounded, unfunded, and unrealistic.”

While the industry reacted negatively Friday to the proposed rule’s release, the guidelines also disappointed advocates for better treatment of residents in chronically short-staffed nursing homes, who contend the rule does not go far enough and enshrines substandard levels of care.

The rule would require that each resident receive 2.45 hours of care from a nurse aide per day, plus 0.55 hours of care from a registered nurse.

The combined three hours falls short of what a government analysis two decades ago said was the optimal level for quality care: 4.1 hours per day. It also falls short of the 3.76 total hours that a government study said nursing homes currently provide on average.

The proposal represents “an enormous step backwards,” said Toby Edelman, senior policy attorney with the Center for Medicare Advocacy. “The proposed rule calls for lower staffing levels than the government’s own 2001 report identified as necessary to prevent avoidable harm to residents and even lower staffing levels than the grossly inadequate staffing levels that nursing facilities currently provide.”

There are more than 1.2 million residents living in about 15,000 nursing homes in the United States. Some 35 states have imposed their own minimum staffing standards on nursing homes, but only 10 of those fall above three hours per day.

Secretary of Health and Human Services Xavier Becerra said staff minimums are required to make sure residents get the care the government and families are paying for. The Centers for Medicare and Medicaid Services, which oversees nursing homes and drafted the rule, estimates 75 percent of nursing homes will have to boost staffing to meet the requirements. The added cost to the industry is expected to be $4 billion a year.

The new rule also would require that nursing homes have a registered nurse on duty at all times, which the administration said represents a major improvement, especially on nights and weekends when staffing is at its lowest. Nurses help minimize risks of bedsores and falls, make sure medications are properly given, and make decisions on whether to call a doctor or send a resident to a hospital.

A fifth of nursing homes would have to hire registered nurses to meet the requirement, the government estimates.

“When facilities are understaffed, residents suffer,” Becerra said in a statement. “They might be unable to use the bathroom, shower, maintain hygiene, change clothes, get out of bed, or have someone respond to their call for assistance. Comprehensive staffing reforms can improve working conditions, leading to higher wages and better retention for this dedicated workforce.”

The new requirements would replace the current vague staffing standard: whatever an operator determines is “sufficient” to assure the safety and well-being of residents.

Comparing the proposed three hours of total staffing per day to the 2001 recommendation of 4.1 hours is not appropriate because it fails to account for the 24/7 registered nurse staffing requirement, said Stacy Sanders, counselor to the HHS secretary, in an interview. Additionally, the rule will require even higher levels of staff based on the numbers of residents a facility houses with higher needs, such as Alzheimer’s patients, she said.

She added the administration believes the industry can attract more workers by offering stronger wages and better working conditions.

“We are confident that our proposal is both strong and achievable,” she said. “We believe that if you make these good jobs, people will want them.”

Advocates for improved care for nursing home residents had been bracing to be disappointed.

Nursing home operators have put tremendous pressure on the Biden administration over the past year. They cite a dire shortage of employees to provide front-line care in nursing homes. The coronavirus pandemic caused the most immediate crisis in staffing, with 250,000 lost workers, according to the nursing home industry’s trade group, the American Health Care Association.

Without a supply of prospective workers, it will be impossible to meet the requirements of minimum staffing, the industry has argued. They also contend that Medicaid reimbursement rates need to be significantly increased if more workers are required in facilities.

“I just can’t understand how CMS is effectively trying to fix the roof while the house is on fire. It’s the beginning of the end for small town nursing homes,” said Nathan Schema, president and chief executive officer of the Evangelical Lutheran Good Samaritan Society, which operates a large chain of nonprofit nursing homes.

To address concerns in rural areas where workers are scarce, the Biden administration has provided a series of exemptions in the rule for facilities that can prove they can’t find staff even if they made good faith efforts to recruit and retain workers. It plans to pump $75 million into programs intended to bolster the nursing home workforce, such as scholarships and tuition reimbursement.

Advocates for better quality care in nursing homes say the industry’s high staff turnover rates point to the true problem: insufficient pay and poor working conditions.

The front-line workforce, which the government says represents about 500,000 people, is predominantly made up of women of color who earn low wages; it is common for them to work in multiple nursing homes simultaneously to earn a decent living, advocates say.

“They don’t have a hiring problem. They have a retention problem,” said Sam Brooks, director of public policy at National Consumer Voice for Quality Long-Term Care, a nonprofit advocacy group, citing average staff turnover in nursing homes of 50 percent per year. “We call it a job quality crisis, not a hireability crisis. It’s clear that nursing homes don’t pay workers well, they don’t treat them well, and they don’t provide adequate training.”

Brooks also noted that the government has limited information about the financial balance sheets of nursing homes, which increasingly are operated by owners with multiple related companies that provide services to the facilities, siphoning away profits.

Brooks added that nursing homes currently provide 0.67 hours of registered nurse hours per day to residents on average, according to the government’s own study, so the 0.55 hours RN mandate proposed by the administration compares unfavorably to current practice.

“This is less than average care,” he said, “and we know what average care gets us in nursing homes.”

Rachel Roubein contributed to this report.

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