On April 22, 2024, the Centers for Medicare & Medicaid Services (CMS) released the long-awaited regulations on minimum staffing in nursing homes. This was a culmination of a two-year process, including a request for information, a study, and a comment period. Although the final rule is well below the 4.2 hours of direct care per resident per day, as numerous studies have shown is required, the staffing standards are a good first step. There is good news:

  • Nursing homes are required to have a registered nurse on duty 24 hours a day, seven days a week. This is a significant improvement providing clinical and leadership expertise around the clock.
  • It provides a minimum staffing standard of 3.48 total direct care per resident per day. This is a minimum, not a ceiling. Nursing homes will still have to staff according to residents’ care and acuity needs (upon which reimbursement rates are based).

 

This rule establishes an important step in ensuring that residents are safe and adequately cared for, but despite the rigorous regulatory process undertaken, it is not a comprehensive reform. It is a compromise designed only to improve the most seriously understaffed facilities.

However, even this compromise is under threat due to the introduction of a resolution under the Congressional Review Act which would repeal these protections and prevent the Administration from ever developing any staffing standards.  In addition, the powerful nursing home industry has filed a lawsuit to dismiss the new staffing standards on the grounds that implementation is not practical and CMS is acting beyond its authority.

Interestingly, the lawsuit has been brought in the Federal District Court for the Northern District of Texas based in Amarillo where a recent Bloomberg investigation describes the practice there of “shopping for the judge you want.”

 

This is despite the facts:

·  60% of facilities will already be able to meet the 3 hours 29 minutes for each resident each day (including most non-profits).

·  Waivers and exemptions included in the new staffing rule, together with the long phase-in will allow facilities time to meet staffing regulations.

 

We need federal staffing regulations in nursing homes. Overburdened staff suffer poor working conditions, compassion fatigue, and burnout contributing to high turnover. Historically, there has been a failure to address underlying issues that are barriers to adequate staffing in at least three areas:

–         Accountability: nursing homes are not held accountable for how public funding is spent, or what proportion is spent on direct care even though many enjoy high profits.

–         Enforcement of existing standards has failed where there is little investment in oversight. Fines for dangerously low staffing levels are rare, insignificant, and viewed as part of the cost of doing business.

–         Facilities argue that there is no one to hire, where the jobs on offer are of poor quality with low pay, few benefits, and poor working conditions due in part to understaffing.

 

Consequences of inadequate staffing diminish residents’ quality of life and include a long history of missed and delayed care, poor quality care, harm, injuries, and deaths of residents.

There are some excellent nursing homes with dedicated owners and operators. They are doing it right and able to make a profit. However, the nursing home industry’s lawsuit takes focus, time, and money away from what is needed: adequate and appropriate care for their residents. It is our hope nursing home advocates, the nursing home industry, and government regulators can all work together to take care of our most vulnerable citizens.