Timeline for Proposed Nursing Home Staff Hikes Prompts Unease

The Biden administration plan to phase in proposed nursing home staffing requirements over five years is rubbing industry officials, state regulators, and patient advocates the wrong way—albeit for different reasons.

Urban nursing homes would have three years to beef up staffing for registered nurses and nursing aides under the proposed rule (RIN 0938-AV25) from the Department of Health and Human Services. Rural nursing homes would have five years. Round-the-clock registered nurses would be required in urban facilities two years after the rule is finalized. Rural facilities would have three years to comply.

Because of longstanding labor shortages, industry trade groups want five years for all facilities to implement most of the new requirements. State officials, consumer groups, and many long-term care experts say that’s too long. They want the new staffing mandates in place within two or three years.

The final rule will resolve the dispute and determine how long nursing homes can wait to add needed staff. The implementation timeline will try to balance a dire need for improved care with industry concerns about the rule’s estimated $4 billion annual cost.

Making those assessments will be difficult for the Centers for Medicare & Medicaid Services due to a lack of accurate data on nursing home finances, said David Grabowski, a professor of health-care policy at Harvard Medical School.

“Without better data to understand the ownership structure of these facilities and then how they’re spending public dollars on staffing, it’s impossible to really dive in and say ‘waiting three years’ or ‘five years’ is prudent,” Grabowski said.

By law, the administration has until September 2026 to publish the final staffing rule. But “we do not intend to delay publishing a Medicare final regulation” until then “if we are able to publish it sooner,” a White House document said.

Impact of ‘Long Phase-In’

If finalized, the proposed rule would require a minimum overall nurse staffing level of 3.0 hours per resident per day, or “3.0 HPRD.” That breaks down to a required 2.45 HPRD for nursing aides, and 0.55 HPRD for registered nurses. HPRD is the “total number of hours worked by each type of staff divided by the total number of residents,” according to the CMS. The proposal would also require a registered nurse on site at all times.

But “residents will suffer harm and jeopardy because of this long phase-in, which I just think is inexcusable,” said Charlene Harrington, professor emerita at the University of California San Francisco School of Nursing.

About half of rural and urban facilities meet the proposed RN staffing requirements, according to the American Health Care Association. But roughly 70% don’t comply with the staffing proposal for nursing aides. And 92% of rural facilities have no registered nurse on site round-the-clock. Neither do 77% of urban nursing homes.

A shortage of these key direct-care workers and their high turnover rates make it impossible for nursing homes to meet higher staffing mandates, according to the AHCA, which represents roughly 14,000 US nursing homes. The association says low Medicaid rates would make the added labor costs even harder to absorb. Complying with the staffing proposal will cost nursing homes an average of $400,000 a year, the group says.

Harrington says labor shortages aren’t the problem. Low pay, bad benefits, and heavy workloads keep the industry searching for staff, she said.

In addition to a five-year rollout for all the proposed requirements, the AHCA also wants “an additional allowance period of at least 36 months for facilities to hire staff once the workforce is available,” said the group’s comment letter. “The initiation of the proposed implementation timeframe should only begin if and when, in fact, the workforce returns.”

That actual implementation could potentially stretch beyond five years for some facilities that receive a hardship exemption from the new standards due to workforce shortages or failed good-faith efforts to hire and retain staff.

“I’ve never liked this idea that we’re going to have this long grace period” for the requirements, Grabowski said. “I don’t think that we need three to five years.”

The delay in adding staff has “a real cost in terms of the quality of care and quality of life for residents,” he added.

Harrington and more than 60 experts in geriatrics, long-term care, and nursing homes agreed. In a comment letter, the group said the proposed timeline “entirely benefits” facility operators “at the expense of residents and staff.” They’ve called for nursing homes to implement all the new guidelines in two years. “No resident deserves to wait longer than necessary for the care they deserve,” their letter said.

Competition for Staff

LeadingAge, which represents nonprofit aging services providers, supports the five-year implementation for the HPRD requirements. But it says all facilities should have three years to implement the 24-hour registered nurse requirement—not just rural providers as the CMS has proposed.

The agency’s current proposal would “pit urban and rural areas against each other as staff are potentially first recruited away from rural areas to fulfill the needs of urban nursing homes only in the future to potentially be recruited back to urban areas,” Janine Finck-Boyle, vice president for health policy and regulatory affairs at LeadingAge, said in an email statement.

The Center for Medicare Advocacy wants a three-year phase-in of all the staffing requirements.

But 15 Democratic state attorneys general want the requirements adopted in two years. They say a longer phase-in period would incentivize for-profit nursing home operators “to transfer excessive up-front profit from the homes to themselves and related parties” that the facilities may have a business interest in. This activity, which obscures a nursing home’s actual financial picture, and has been linked to private equity interests. The practice could keep facilities from “increasing staffing by raising wages,” the AGs told the CMS.

Similar concerns about private equity were expressed by Art Persyko, a board member of the San Francisco Gray Panthers, an advocacy organization for seniors. Persyko told the agency it should shorten the proposed implementation period to “preempt short-term Private Equity exploitation before the rule takes effect.”

“Their primary interest is making money for themselves and their investors,” Persyko said in an interview with Bloomberg Law. “So one could easily presume that they benefit from not paying for higher staffing standards.”

Grabowski said industry cost reports don’t provide the detail needed to discern how bad the problem may be. They also don’t show whether the industry needs additional federal funding, or how much.

“If the issue is funneling profits away from resident care, or a lack of money in the system due to low Medicaid reimbursements, we need to address that,” Grabowski. “But this needs to happen sooner than later. We need more staff today.”