Biden administration finalizes controversial minimum staffing mandate at nursing homes

By Tami Luhby, CNN

(CNN) — The Biden administration finalized on Monday the first-ever minimum staffing rule at nursing homes, Vice President Kamala Harris announced.

The controversial mandate requires that all nursing homes that receive Medicare and Medicaid funding provide a total of at least 3.48 hours of nursing care per resident per day, including defined periods from registered nurses and from nurse aides. That means a facility with 100 residents would need at least two or three registered nurses and at least 10 or 11 nurse aides, as well as two additional nurse staff, who could be registered nurses, licensed professional nurses or nurse aides, per shift, according to a White House fact sheet.

Plus, nursing homes must have a registered nurse onsite at all times. The mandate will be phased in over three years, with rural communities having up to five years. Temporary exemptions will be available for facilities in areas with workforce shortages that demonstrate a good faith effort to hire.

The rule, which was first proposed in September and initially called for at least three hours of daily nursing care per resident, is aimed at addressing nursing homes that are chronically understaffed, which can lead to sub-standard or unsafe care, the White House said.

“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,” the fact sheet said, noting that it will also “ensure that workers aren’t stretched too thin by having inadequate staff on site.”

Some 75% of nursing homes will have to hire staff – including 12,000 registered nurses and 77,000 aides – to meet the daily care requirements, according to the Department of Health and Human Services. Just over 22% will need to hire registered nurses to meet the around-the-clock staffing mandate.

Nearly 1.2 million residents live in Medicare- and Medicaid-certified, long-term care facilities.

Pushback from nursing home industry

Nursing home operators strongly objected to the minimum staffing proposal in September, saying they already struggle to fill open positions. Such a requirement could force some facilities to close.

Meeting the proposed mandate would require nursing homes to hire more than 100,000 additional nurses and nurse aides at an annual cost of $6.8 billion, according to a September analysis released by the American Health Care Association, which represents more than 14,000 nursing homes and other long-term care facilities that provide care to approximately 5 million people annually.

Some 94% of nursing homes were not meeting at least one of the proposed staffing requirements, the analysis found.

“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 American Health Care Association, said in a statement Monday. “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.”

LeadingAge, which represents more than 5,400 nonprofit and mission-driven aging services providers, also voiced concerns about the final rule, saying that the lack of qualified candidates and the cost of recruiting and training staff mean the mandate “will likely limit older adults and families’ access to care and services.” Policymakers must address funding and infrastructure if they are “truly serious” about countering the chronic shortages that providers face, the group said in a statement Monday.

Asked about concerns that the rule may lead to nursing home closures, HHS Secretary Xavier Becerra told CNN that no one should go to a facility with inferior care. The mandate includes accommodations for nursing homes that face workforce challenges.

“We take into account the hardships that industry claimed might be difficult,” Becerra said in an interview, noting the agency provides grants to assist with hiring. “But are we going to compromise safety and quality care for the residents because a facility is saying they can’t find the people they need? I’ve got to question that business model if that’s the way you’re going to run a home that’s supposed to take care of Americans.”

The Centers for Medicare and Medicaid Services in September announced a $75 million campaign to increase the number of nurses in nursing homes, including through financial incentives.

Some advocates say more care needed

Meanwhile, some consumer advocates were not completely satisfied with the proposed rule, though they called it a first step.

“Importantly, this rule is a minimum and not a ceiling,” said Sam Brooks, director of public policy at the National Consumer Voice for Quality Long-Term Care. “It was clearly designed to bring up the worst-performing homes to better staffing levels. Most nursing home residents will need much more daily care to live healthy and safe lives.”

A Centers for Medicare and Medicaid Services study in 2001 found that nursing home residents need at least 4.1 hours of daily care.

A separate federal rule requires that facilities conduct an annual assessment to determine the nursing needs of its residents and the adequacy of its staffing.

“Properly implemented and enforced, the facility assessment process will require many facilities to implement higher staffing levels than the minimums announced today,” Toby Edelman, senior policy attorney at the Center for Medicare Advocacy, said in a statement.

Differing views in Congress

The proposed staffing mandate has also split Congress, whose approval is not required. A bipartisan Senate bill and similar legislation introduced by House Republicans would prohibit HHS from finalizing the rule. Nearly a hundred House members from both parties wrote a letter to Becerra in October expressing their concerns with the proposed rule, particularly that it could lead to widespread nursing home closures.

The American Health Care Association said it hopes to work with lawmakers “on more meaningful solutions that would help boost the long term care workforce,” Parkinson said.

But Sen. Elizabeth Warren, a Democrat of Massachusetts, has called for the administration to finalize the rule and strengthen it.

“This would help improve the quality of care for residents at the same time that it’s improving conditions for the staff who provide this long-term care,” she said at a hearing of the Senate Special Committee on Aging last week.

Other Democratic lawmakers, including Sen. Bob Casey of Pennsylvania and Rep. Richard Neal of Massachusetts, praised the final rule on Monday, saying it will strengthen patient and worker safety.

And more than 50 organizations, including labor unions and consumer advocates, voiced support for the proposed mandate in a letter to Congress and an advertisement in the fall.

“The provisions that make up the nursing home staffing rule mark a long-overdue seachange for how too many nursing homes operate,” Mary Kay Henry, president of SEIU International, which represents nursing home workers, said in a statement Monday. “We know that staffing levels at nursing homes are closely linked to quality of care residents receive, but we also know that bad actors slash staffing levels and keep wages stagnant in order to maximize profits.”

Separately, the Biden administration also announced a final rule aimed at improving access to home care services for elderly Americans and those with disabilities, as well as the quality of caregiving jobs. The rule requires that at least 80% of Medicaid payments for home care services go to workers’ wages.

This story has been updated with additional information.

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