Last Friday, the Biden-Harris Administration released a proposed rule to establish staffing standards among the nation’s nursing homes. CMS is seeking feedback on the 231-page proposal until November 6. So far, reactions have been mainly negative, though some unions were supportive.

Under the proposal, nursing homes would be required to provide each resident at least three hours of direct care per day. The rule would mandate that at least 33 minutes of care be provided by a registered nurse and at least 2 hours and 27 minutes of care be provided by nurse aids.

Long-term care facilities say that the rule is unrealistic because they can neither find nor afford more workers. For example, the American Health Care Association (AHCA) said that a federal staffing mandate for nursing homes will be “impossible to implement and will only exacerbate the current crisis.”

The AHCA pointed out that some states have already enacted staffing mandates for nursing homes — and that facilities in those states have largely struggled to comply. For example, three-quarters of nursing homes in New York are failing to meet the state’s requirement of providing three and a half hours of care per resident per day, the organization said in its statement.

The proposed rule would also require nursing homes to have at least one registered nurse on site 24 hours per day — a significant increase from the eight hours per day currently mandated by federal law.

Other than that eight-hour requirement, the country’s current federal laws for staffing at long-term care facilities are murky. Right now, nursing homes that are reimbursed by Medicare and Medicaid are required to provide staffing levels that are “sufficient” to meet residents’ needs, and there are no laws that set a minimum number of staff members or hours of care provided per day.

CMS estimated that 75% of the nation’s nursing homes will need to hire more staff to meet the standards described in its proposed rule. The agency also predicted that the rule will cost $40.6 billion over 10 years — it said facilities will bear most of these costs unless payers increase their rates.

In its proposal, CMS said it plans to implement the rule over three years, with delayed start dates for long-term care facilities located in rural areas.

Groups representing nursing homes have reacted critically to the proposed rule, saying that the industry’s staffing crisis is too acute to keep up with the requirements. Research from last summer showed that the nursing home sector lost more than 14% of its workforce since February 2020, marking the worst pandemic-induced job loss among all healthcare sectors. 

The American Hospital Association opposed CMS’ proposal, declaring “safe staffing is about much more than a number” in its statement.

“Implementing a numerical staffing threshold could drive nursing homes to further reduce capacity or close in order to meet the requirements. Fewer nursing home beds could adversely impact hospital patients who are denied the specialized care they are prescribed when they must stay, sometimes months, in hospital beds awaiting discharge to post-acute care settings,” the AHA said.

Additionally, LeadingAge — a group of nonprofit providers that care for seniors — published a statement slamming CMS’ proposal. Katie Smith Sloan, the organization’s CEO, pointed out that the agency’s own research proved that “one-size-fits-all staffing ratios don’t guarantee quality.”

The research Smith Sloan mentioned refers to a study that CMS commissioned and posted to its website in late August. The study concluded that there is no single staffing level that can ensure patients receive quality care — though it is likely that the higher staffing levels are, the lower the risk is for hospitalizations, emergency department visits and care delays.

The study was removed from CMS’ website shortly after KFF Health News reported on it. Jonathan Blum, CMS’ COO, said the study was a “draft” that was posted accidentally, but the news outlet said “nothing in the 478-page study indicated it was preliminary.”

Along with highlighting this research, Smith Sloan also shed light on how hard it is for nursing homes to hire staff right now. There are “simply no people to hire,” she declared.

“America’s under-funded, long-ignored long-term care sector is in a workforce crisis. The Biden Administration has in this initiative an opportunity to change the narrative surrounding nursing homes. Commit to real solutions: prioritize immigration reform to help build the pipeline, increase reimbursement rates to cover the cost of care and increase wages,” Smith Sloan said.

Still, some voices are saying CMS’ proposed rule doesn’t do enough to protect care quality for patients. 

For example, U.S. Representative Senator Lloyd Doggett (D-Texas), a member of the House Ways and Means Committee’s health subcommittee, reacted negatively to the rule, saying that its proposed staffing requirements are still inadequate. He called the rule a “weak and disappointing proposal that does little to improve the quality of care or stop the mistreatment of nursing home staff.”

Labor unions are the only entities that seem pleased with the proposal. For instance, Mary Kay Henry, the president of the Service Employees International Union (SEIU), praised the rule, calling it “a testament to the relentless advocacy of the majority woman-of-color-powered nursing home workforce.”

“With this proposal, the Biden Administration sends a powerful message: All nursing homes must be held accountable to minimum staffing standards that will keep residents and workers safe, and ensure that public funding is spent in ways that allow caregivers to deliver the best care possible,” she said in a statement.

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