Biden Administration Proposes First-Ever Nursing Home Staffing Standards

Some resident advocates also expressed disappointment, saying the proposal doesn’t go far enough.

Toby Edelman, a senior policy attorney at the Center for Medicare Advocacy, a legal nonprofit working to advance access to health care coverage, said in a statement that the proposed rule “not only fails to implement the President’s directive; it also represents an enormous step backwards.”

A long nursing home battle

Federal staffing requirements for nursing homes haven’t changed in decades despite mounting evidence that higher staffing levels are linked to better quality of care for residents, including better COVID-19 outcomes. 

Since 1987, federal nursing home law has only mandated that a registered nurse be on duty for at least eight hours a day, and that facilities have licensed nursing services around the clock that are “sufficient” to “maintain the highest practicable physical, mental, and psychosocial well-being of each resident.” But what counts as “sufficient” is subjective.

A 2001 report for CMS found that at least 4.1 hours of direct-care nursing time per resident per day was required to prevent clinical decline in residents, but no such threshold was ever baked into federal law.

Some states have set their own staffing standards for nursing homes but “with a few exceptions, are nowhere near that recommended [4.1] level” and “in almost every state remain severely low,” concluded a 2021 report by the National Consumer Voice for Quality Long-Term Care.

The proposed CMS rule only mandates a total of three hours of care per resident per day, which Richard Mollot, executive director of the Long Term Care Community Coalition, criticized as too low. “By making it so much lower [than the 4.1 standard], it is going to put hundreds of thousands of residents at risk for neglect and abuse every year,” he said. “It is honestly heartbreaking.”

Lori Smetanka, executive director of the National Consumer Voice for Quality Long-Term Care, is also “extremely disappointed” with the rule, “which is well below the recommendations of evidenced-based research necessary to ensure that residents are receiving quality care,” she said.

The proposal follows some of the recommendations of a landmark report issued by the National Academies of Sciences, Engineering, and Medicine in the spring of 2022. The report recommended that every nursing home have registered nurse coverage 24 hours a day, seven days a week, with additional coverage based on residents’ needs. Those needs should be determined by professional assessments and care plans, it urged.

Industry pushback on staffing

The nursing home industry is objecting to the CMS proposal, arguing that such a mandate is unachievable given the current workforce struggles.

The AHCA statement called the release of the proposal “unfathomable,” given “nursing homes are facing the worst labor shortage in our sector’s history and seniors’ access to care is under threat. This unfunded mandate, which will cost billions of dollars each year, will worsen this growing crisis.”

The industry has lost roughly 155,000 jobs since the beginning of the pandemic, according to data from the U.S. Bureau of Labor Statistics. A July 2022 report from the AHCA and accounting and consulting firm CliftonLarsonAllen LLP found that increasing staffing levels to provide 4.1 hours per resident per day — higher than the three hours CMS is proposing — would cost $10 billion a year.

“It’s meaningless to mandate staffing levels that cannot be met," said Katie Smith Sloan, president and CEO of LeadingAge, which represents more than 5,000 non-profit aging services providers, in a statement. “There are simply no people to hire — especially nurses. "

CMS says it recognizes the workforce challenges, noting in its release statement “the proposed standards take into consideration local realities in rural and underserved communities through staggered implementation and exemptions processes.” It highlighted its HHS Workforce Initiative, which is investing over $75 million in financial incentives “to make it easier for individuals to enter careers in nursing homes.”

Next steps for nursing home plan

CMS has opened a notice-and-comment period for the proposal, where interested parties can weigh in until early November.

When it comes to implementation of the minimum hours of care, CMS proposed it be rolled out in phases, staggered over a three-year period for urban facilities and a five-year period for rural ones.

Smetanka of the National Consumer Voice for Quality Long-Term Care expressed concern about delayed implementation and exemptions. “Residents have gone without necessary care and services long enough,” she said. “We need to do better.”