Nursing home residents are suffering, in large part because their facilities do not have adequate numbers of staff to care for them. The COVID-19 pandemic’s toll, including hundreds of thousands of COVID and non-COVID deaths of residents and staff, brought to public attention longstanding problems in how nursing homes operate and led to demands for meaningful change.
In response, President Biden announced a comprehensive nursing home reform agenda in February 2022. I, along with other advocates for residents, enthusiastically support the fact that the reform agenda tackles multiple complex issues: enforcement of federal standards of care; transparency and accountability in ownership and finances; reducing the life-threatening misuse of antipsychotic drugs; and more.
Central to the agenda is the issue of nurse staffing: “[t]he adequacy of a nursing home’s staffing is the measure most closely linked to the quality of care residents receive.” The White House called for the enactment of the first-ever federal requirement for a nurse staffing ratio to “ensure[…] that all nursing home residents are provided safe, quality care, and that workers have the support they need to provide high-quality care.”
While I’m encouraged by the draft staffing ratios rule, issued by CMS in September 2023, the proposal doesn’t go far enough. I encourage the administration to issue a stronger final rule that will result in truly significant change. Without a strong final rule that is fully enforced, understaffing will continue, with devastating consequences for residents, families, and staff.
What Nursing Home Residents Need
Current nurse staffing standards are vague, limited, and rarely enforced. Apart from the requirement of a registered nurse available 8 consecutive hours per day and licensed nurses 24 hours per day, federal rules require only “sufficient” nursing staff to meet residents’ needs. This standard, in place for more than 35 years, has been ineffective in achieving well-staffed nursing facilities, as researchers have reported for decades and as residents’, families’, and workers’ personal experiences confirm each day. Too often, low staffing persists because it saves facilities money and increases owners’ profits.
A congressionally mandated study issued in 2001 found that 4.1 hours per resident day (HPRD) of nursing staff time were needed to prevent avoidable harm to residents and to meet some requirements of the 1987 Nursing Home Reform Act. However, CMS’s nurse staffing rule proposes a standard of 3.0 HPRD (.55 HPRD for RNs and 2.45 HPRD for nurse aides). The proposed rule does not specify time for licensed practical nurses (LPNs), who provide more of the licensed nursing care in nursing facilities than RNs. CMS asked for public comment on a possible 3.48 HPRD standard that could include LPNs.
I was encouraged by the firm commitment to staffing set out in the preamble to the proposed rule, and I support the proposed requirement for an on-site RN 24 hours/day, which the National Academy of Sciences recommended in 1996 and both national nursing home trade associations called for in 2021 in their proposed Care for Our Seniors Act. But I am concerned that the 3.0 HPRD standard — and even the possible 3.48 HPRD standard — is too low.
These levels are lower than the average level of nursing staff actually provided during the pandemic (3.76 HPRD) and far lower than the 4.28 HPRD and 4.19 HPRD already met by non-profit and public facilities, respectively. Finally, I’m concerned about the rule’s broad exemptions for facilities that fail to meet staffing standards, and I have reservations about its implementation timetable, which delays new staffing standards for rural facilities for 5 years or longer.
Industry Opposition to Staffing Ratios
Although nursing homes expected CMS would propose at least a 4.1 HPRD standard as late as August 2023, the month before CMS published the proposed staffing rule, nursing home owners, operators, and their trade associations nevertheless continued to object to the proposed rule that sets much lower staffing requirements. Many argue that any staffing rule is an unfunded mandate and that there is no one to hire. Most recently, certain trade associations have focused on the contention that garners the most public sympathy, support, and fear: that nursing facilities will close as a result of the staffing mandate, and people will have nowhere to go for care.
But evidence suggests the industry’s arguments are not valid.
The Medicaid and CHIP Payment and Access Commission (MACPAC), which advises Congress on Medicaid policy, rejects industry complaints that facilities do not receive sufficient Medicaid funding to hire more nurses. In 2023, in both an Issue Brief and Report to Congress, MACPAC reports insufficient evidence that Medicaid rates for nursing homes are inadequate, citing the lack of information about how much total Medicaid funding facilities actually receive, how much they divert to related parties they own and control, and how they spend their public reimbursement. In fact, a new study estimates that 63% of facility profits were hidden in inflated prices paid to related parties.
While some facilities claim they cannot hire additional staff, they simultaneously complain about their reliance on temporary nurse staffing agencies, which charge them considerably more than they pay permanent staff. Poor working conditions, low salaries, minimum benefits, and low staffing levels lead to high staff turnover and make nursing home employment an undesirable option for many nurses. Staffing agencies pay higher wages and give nurses more control over their time. The problem is not that facilities lack money to pay staff and that no one is available to work; the chief problem is that people don’t want to work for nursing facilities under current conditions.
Finally, nursing home closures are not uncommon. A 2009 study found that 2% of nursing facilities closed each year between 1999 and 2005, typically when they were small, provided poor care, and had a high Medicaid census and low occupancy. A 2020 study described 555 closures between June 2015 and June 2019 (4% of facilities). A more recent study and analysis found that closures actually declined during the pandemic, and that most closed facilities were small, urban, provided poor care, and had low occupancy and high staff turnover.
Closures are stressful and, as a matter of policy, especially problematic in high-performing facilities. But the reality is, closures will continue to occur, especially in facilities that have too few staff to provide high quality care, and as deliberate state policies shift public funding from nursing homes to home and community-based alternatives favored by older people and their families. Fearmongering about closures should not defeat the administration’s efforts to increase and improve staffing.
Toward a Meaningful Final Rule
As nursing homes begin to stabilize after the pandemic — facility occupancy rates are increasing, Medicaid rates are increasing, and multiple efforts to recruit and train staff are expanding — CMS must reject nursing facilities’ opposition to improving staffing levels when it issues the final rule. Nurse staffing is the most critical factor for nursing home quality. The thousands of facilities that currently staff at high levels demonstrate that good staffing can be achieved.
I encourage the Biden administration to publish a final rule that advances meaningful staffing ratios. The first federal staffing standard must get the rule right with evidence-based HPRDs, rolled out in an efficient timeframe, and with a clear mechanism for meaningful enforcement.
Toby Edelman, JD, is a senior policy attorney with the Center for Medicare Advocacy, and an advocate for senior residents.
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