Federal Government Must Enact and Enforce Nurse Staffing Standards for Nursing Facilities
At a roundtable discussion with HHS Secretary Xavier Becerra on March 30, which the Center for Medicare Advocacy attended as one of seven invitees, Mark Parkinson, President and CEO of the American Health Care Association, the trade association of for-profit facilities, said that the primary issue in President Biden’s nursing home reform agenda[1] that the nursing home industry could not support was staffing standards. Provider complaints about staffing levels are premature. There are no new federal staffing levels. The Biden Administration is requiring a new study of staffing standards,[2] whose findings and recommendations it will implement through notice and comment rulemaking.
Moreover, the President’s nursing home reform agenda calls for immediate efforts to assist in strengthening staffing – ensuring that aide training is affordable, supporting “state efforts to improve staffing and workforce sustainability” (by developing “a template to assist and encourage States requesting to tie Medicaid payments to clinical staff wages and benefits, including additional pay for experience and specialization”), and launching a “National Nursing Career Pathways Campaign” in collaboration with the Department of Labor, “to conduct a robust nationwide campaign to recruit, train, retain, and transition workers into long-term care careers, with pathways into health-care careers like registered and licensed nurses.” These activities will help ensure more trained and available staff are available across the country when a federal staffing standard is implemented.
Nevertheless, at the meeting with Secretary Becerra, Parkinson gave two reasons for opposing federal staffing standards: there is no one to hire and increased staffing is financially unsupportable. Neither reason withstands scrutiny for the following reasons:.
- These Positions Could be Filled
Although there are nearly 4.2 million registered nurses (RNs) and 950,000 licensed practical nurses/licensed vocational nurses in the United States, only 64.9% of currently employed RNs and 65.7% of currently employed LPNs/LVNs actually work in nursing full-time.[3] Encouraging some of these nurses to return to the nursing profession could help ease the current crisis in staffing. Recent surges in nursing school enrollment[4] as well as various federal and state loan forgiveness programs can also help increase the numbers of licensed nurses.
In addition, states are already undertaking successful efforts to increase the numbers of trained and available paraprofessional direct care workers. For example, on December 6, 2021, Minnesota Governor Tim Walz announced a state initiative “to recruit, train, and deploy at least 1,000 newly certified nursing assistants for Minnesota long-term care facilities experiencing staffing shortages by the end of January.”[5] Funded with $3.4 million in federal relief money and $6.7 million in state money, the program covered the cost of tuition, books, uniforms, and certification exam fees for participants. The State exceeded its 1,000 aide goal. On March 29, 2022, Governor Walz announced that 1,278 people participated in the initiative and that the state is continuing the successful Next Generation Nursing Assistant initiative with a proposed budget of $13.3 million for 2024-2025.[6]
Many states are increasing Medicaid payments to facilities, often with mandates to use some or all of the money to pay workers higher wages and benefits.[7]
In a new report, State Policy Strategies for Strengthening the Direct Care Workforce, PHI describes 24 specific policy strategies, with state examples, to improve the quality of direct care jobs and to help stabilize the direct care workforce.[8] PHI documents the many state actions that are already underway to improve staffing.
- There is Money In Current Reimbursement to Pay For Increased Staffing Levels Paying for better staffing levels does not necessarily mean additional funding is needed.
- Existing reimbursement could be used more effectively to pay for increased staffing. New York State nursing homes and their trade associations challenged a new state law requiring nursing facilities to use at least 70% of their revenues to provide care to residents (including at least 40% for resident-facing staff) and to limit profits to 5%.[9] The lawsuit filed by more than one-third of New York’s nursing facilities alleged that if the law had been in effect in 2019, facilities would have had to remit $824 million to the state.[10] In other words, by their own calculations, New York State nursing facilities spent $824 million (in 2019) on excess profits and spending not related to resident care, as those terms are defined by the state’s 2021-2022 budget law. With direct care ratios like New York’s law, states and the federal government could require facilities to spend designated proportions of their existing reimbursement on care for residents.[11]
- Paying a living wage to workers (which addresses one of the major reasons staff leave their jobs in facilities, low wages and the lack of benefits[12]) could pay for itself. LeadingAge, the trade association of not-for-profit providers, issued a report in 2020, calling for workers to be paid a living wage.[13] Using economic simulation, the report found that raising wages of direct care workers would reduce staff shortages, reduce staff turnover, improve health care quality, improve worker productivity, improve the financial security of direct care workers, reduce workers’ reliance on needs-based public benefit programs, and improve state and local economies. While the report did not identify who would the bear the costs of wage increases for workers, it found that “The emerging literature suggests that cost savings flowing from improvements in care quality may, alone, be enough to pay for wage increases.”[14] In other words, raising direct care workers’ wages could pay for itself, just by improving care for residents. No additional reimbursement would be required to pay a living wage to workers.[15]
- Staffing more appropriately could avoid spending to reverse the high costs of poor care. Bad care is expensive and costs money. A 2011 report by the National Consumer Voice for Quality Long-Term Care, which updated a report that the advocacy organization issued 20 years earlier on the same topic, identified research-based findings on the high costs of paying for avoidable bad outcomes related to falls, pressure ulcers, urinary incontinence, malnutrition, dehydration, and avoidable hospitalizations.[16]
A second example of the high cost of poor care was documented in proposed rules for the Requirements of Participation in 2015, where the Centers for Medicare & Medicaid Services (CMS) identified the high costs of infections in nursing homes:
“Healthcare-associated infections (HAIs) often result in considerable suffering for residents in LTC facilities as well as increased costs for the healthcare system. Although estimates vary widely, there are between 1.6 and 3.8 million HAIs in nursing homes every year. Annually, these infections result in an estimated 150,000 hospitalizations, 388,000 deaths, and between $673 million to $2 billion dollars in additional healthcare costs (Castle, et al. Nursing home deficiency citations for infection control, American Journal of Infection Control, May 2011; 39, 4).”[17]
Conclusion
Nursing facilities have been understaffed for decades. Reversing policies that allowed insufficient staffing to be the norm in nursing homes will not happen easily or overnight. But there can be no doubt that the quality of care and quality of life for nursing home residents will not improve unless and until professional and paraprofessional staffing dramatically improves. It is way past time to address this issue. President Biden’s nursing home reform agenda sets us on the right path and deserves full support.
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[1] White House, “FACT SHEET: Protecting Seniors by Improving Safety and Quality of Care in the Nation’s Nursing Homes” (Feb. 28, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/
[2] A four-volume study, released in 2001 by the Centers for Medicare & Medicaid Services, found that more than 90% of facilities did not have sufficient staff to prevent avoidable harm or to provide the services required by the Nursing Home Reform Law. CMS, Report to Congress: Appropriateness of Minimum Nurse Staffing Ratios (2001). Phase One report at https://phinational.org/wp-content/uploads/2017/07/Phase_I_VOL-_II-1.pdf; https://phinational.org/wp-content/uploads/2017/07/Phase_I_VOL_I-1.pdf
[3] University of St. Augustine for Health Sciences, “60 Key Nursing Statistics and Trends for 2021” (Sep. 2021), https://www.usa.edu/blog/nursing-statistics/
[4] American Association of Colleges of Nursing, “Student Enrollment Surged in U.S. Schools of Nursing in 2020 Despite Challenges Presented by the Pandemic” (Apr. 1, 2021), https://www.aacnnursing.org/News-Information/Press-Releases/View/ArticleId/24802/2020-survey-data-student-enrollment (2021) (reporting 5.6% increase in enrollment in nursing schools, with 251,145 studying for baccalaureate level nursing degrees)
[5] “Governor Walz Announces Plan to Train, Deploy 1,000 New Certified Nursing Assistants to Long-Term Care by January 31; Effort is a partnership between state, colleges, and long-term care providers” (News Release, Dec. 6, 2021), https://mn.gov/governor/news/#/detail/appId/1/id/512110
[6] “State of Minnesota Surpasses Goal of Recruiting 1,000 Certified Nursing Assistants; Walz-Flanagan Budget to Move Minnesota Forward proposes additional funding to continue the initiative” (News Release, Mar. 29, 2022), https://mn.gov/governor/news/#/detail/appId/1/id/523325
[7] Illinois passed legislation, HB0246, https://www.ilga.gov/legislation/102/HB/PDF/10200HB0246enr.pdf, that, among other changes, subsidizes annual wage hikes for certified nurse aides, Peter Hancock, “Illinois lawmakers OK bill to drive $700M into Medicaid-funded nursing homes to boost care,” Capitol News Illinois (Apr. 8, 2022), https://www.sj-r.com/story/news/state/2022/04/08/illinois-bill-would-drive-700-million-nursing-homes-advances/9510576002/; the Colorado Legislature raised the minimum wage for nursing home workers to $15, House Bill22-1333, http://leg.colorado.gov/sites/default/files/documents/2022A/bills/2022a_1333_rer.pdf; The Star Tribune reports that Minnesota legislators introduced a billion-dollar proposal to increase wages of long-term care workers. Briana Bierschbach, “Minnesota legislators aim to tackle ‘dire’ staffing shortages in long-term care,” Star Tribune (Apr. 9, 2022), https://www.startribune.com/minnesota-legislators-aim-to-tackle-dire-staffing-shortages-in-long-term-care/600163652/?refresh=true
[8] PHI, State Policy Strategies for Strengthening the Direct Care Workforce (2022), reached through a link at https://www.phinational.org/resource/state-policy-strategies-for-strengthening-the-direct-care-workforce/
[9] New York State Budget for State Fiscal Year 2021-22, §2828 (Residential health care facilities; minimum direct resident care spending), https://www.nysenate.gov/legislation/laws/PBH/2828
[10] Home for the Aged of the Little Sisters of the Poor v. Mary T. Bassett, No. 1:21-cv-01384 (BKS/CFH) (N.D.N.Y., filed Dec. 29, 2021), https://medicareadvocacy.org/wp-content/uploads/2022/01/Nursing-homes-NY-nh-case-21-cv-1384-BKS-CFH-complaint-U.S.-District-Court-NYND-2.pdf . The Center for Medicare Advocacy has written about this lawsuit in “How Do Nursing Homes Spend the Reimbursement They Receive for Care?” (CMA Report, Jan. 26, 2022), https://medicareadvocacy.org/how-nursing-homes-spend-public-money/ and “New York Nursing Homes Suing the State Received Federal Provider Relief Funds” (CMA Alert, Feb. 3, 2022), https://medicareadvocacy.org/new-york-nursing-homes-suing-the-state-received-federal-provider-relief-funds/
[11] See LTCCC, Direct Care Minimum Staffing Laws; A Critical Tool for Improving Care for Nursing Home Residents and Accountability for Taxpayer Funds (2022), https://nursinghome411.org/wp-content/uploads/2022/04/Policy-Brief-Direct-Care-Min.-Spending-Laws.pdf
[12] See National Association of Health Care Assistants, “Survey: CNAs Cite Low Wages, Burnout, Lack of Respect as Key Contributors to Staffing Crisis” (Mar. 4, 2022), https://www.nahcacna.org/cnas-cite-low-wages-burnout-lack-of-respect-as-key-contributors-to-staffing-crisis/
[13] LeadingAge, Making Care Work Pay: How a Living Wage Benefits Us All (Fall 2020), https://leadingage.org/sites/default/files/Making%20Care%20Work%20Pay%20Report.pdf
[14] Id. 5.
[15] A humorous take on the issue – how paying a livable wage to workers would set off a ripple of good outcomes – is a column by Eleanor Feldman Barbera, “If you give the staff a livable wage . . . ,” McKnight’s Long-Term Care News (Dec. 7, 2021), https://www.mcknights.com/blogs/the-world-according-to-dr-el/if-you-give-the-staff-a-livable-wage/, which ends with “And if the staff is stable, the care is improved, rehospitalizations are averted, leaks are caught before floods, and penalties are avoided, organizations will have the funds to pay a livable wage.”
[16] Lani G. Gallagher, Consumer Voice, The High Cost of Poor Care: The Financial Case for Prevention in American Nursing Homes (Apr. 2011), https://theconsumervoice.org/uploads/files/issues/The-High-Cost-of-Poor-Care.pdf
[17] 80 Fed. Reg. 42167, 42215 (Jul. 16, 2015), https://www.govinfo.gov/content/pkg/FR-2015-07-16/pdf/2015-17207.pdf
CMS Begins Process of Setting Mandatory Nurse Staffing Standards for Nursing Facilities
As part of the annual proposed rule updating Medicare Part A payments to skilled nursing facilities (SNFs),[1] the Centers for Medicare & Medicaid Services (CMS) is beginning the process of establishing nurse staffing standards for facilities, as promised by President Biden in his State of the Union address on March 1, 2022 and discussed in a White House Fact Sheet on February 28.[2] CMS’s News Release announcing the proposed rule describes CMS as
soliciting input to help the agency establish minimum staffing requirements that nursing homes will need to meet to ensure all residents are provided safe, high-quality care, and nursing home workers have the support they need. This input will be used in conjunction with a new research study being conducted by CMS to determine the optimal level and type of nursing home staffing needs. The agency intends to issue proposed rules on a minimum staffing level requirement for nursing homes within one year.[3]
In 17 specific questions, CMS asks for public comment on a broad range of issues related to staffing that it should consider, including evidence of projected savings from reduced hospitalizations and adverse events (Question 3), evidence that resources are spent on expenses not related to patient care (Question 4), whether minimum staffing requirements at the state level have been effective (Question 12), and, if so, which ones (Question 13), and unintended consequences (Question 15).[4]
The proposed rule also:
- Decreases Medicare Part A payments to SNFs by approximately $320 million (CMS proposes increasing rates by $1.4 billion to reflect market basket increases, and also proposes decreasing rates by $1.7 billion to reflect recalibration of rates when the patient driven payment model (PDPM), implemented October 1, 2019, resulted in overpayments of 5%, or $1.7 billion, in Fiscal Year 2020)
- Requests information for measuring equity and how to tie health equity outcomes to SNF payments
- Updates the SNF Quality Reporting Program, seeking input on two measures (functional outcome measure, COVID-19 vaccination measure)
- Proposes changes to the SNF Value-Based Purchasing Program, identifying three new measures (healthcare associated infections requiring hospitalization; total nursing hours per resident day, discharge to community)[5]
The notice of proposed rulemaking will be published in the Federal Register on Friday, April 15. Comments will be due by June 10, 2022.
The Center will be reviewing the proposed rule and drafting comments.
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[1] CMS, “Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities; Updates to the Quality Reporting Program and Value-Based Purchasing Program for Federal Fiscal Year 2023; Request for Information on Revising the Requirements for Long-Term Care Facilities to Establish Mandatory Minimum Staffing Levels,” CMS-1765-P (Notice of Proposed Rulemaking, unpublished PDF version displayed, Apr. 11, 2022, https://public-inspection.federalregister.gov/2022-07906.pdf
[2] The Nursing Home Reform Agenda was identified in White House, “Protecting Seniors and People with Disabilities by Improving Safety and Quality of Care in the Nation’s Nursing Homes” (Fact Sheet, Feb. 28, 2022), https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/. See “Biden Administration Issues Bold and Comprehensive Nursing Home Reform Agenda” (CMA Alert, Mar. 2, 2022),
[3] CMS, “HHS Takes Actions to Promote Safety and Quality in Nursing Homes; CMS Proposed Rule Seeks Feedback on Staffing Standards and Health Equity” (News Release, Apr. 11, 2022), https://www.cms.gov/newsroom/press-releases/hhs-takes-actions-promote-safety-and-quality-nursing-homes
[4] CMS, “Medicare Program; Prospective Payment System and Consolidated Billing for Skilled Nursing Facilities; Updates to the Quality Reporting Program and Value-Based Purchasing Program for Federal Fiscal Year 2023; Request for Information on Revising the Requirements for Long-Term Care Facilities to Establish Mandatory Minimum Staffing Levels,” CMS-1765-P (Notice of Proposed Rulemaking, unpublished PDF version displayed, Apr. 11, 2022, pp. 226-229, https://public-inspection.federalregister.gov/2022-07906.pdf
[5] Fact Sheet, “Fiscal Year (FY) 2023 Skilled Nursing Facility Prospective Payment System Proposed Rule (CMS 1765-P” (Apr. 11, 2022), https://www.cms.gov/newsroom/fact-sheets/fiscal-year-fy-2023-skilled-nursing-facility-prospective-payment-system-proposed-rule-cms-1765-p
Support for Reestablishing the House Select Committee on Aging
Last month the Leadership Council on Aging Organizations (LCAO), of which the Center for Medicare Advocacy is a member, endorsed Rhode Island Congressman David Cicilline’s H.Res. 583, Reestablishing the House Select Committee on Aging (HSCoA).
The letter from LCAO members called on members of Congress to support this important Resolution. “Historically, the HSCoA served as a unique venue that allowed open, bipartisan debate from various ideological and philosophical perspectives to promote consensus that, in turn, permeated standing committees. Millions of older Americans faced unique economic and health risks pre-pandemic, and the coronavirus continues to take its toll, exacerbating the problem of social isolation and family separation across generations. Addressing the needs of older Americans in a post-pandemic world will require vigilant oversight and action,” the letter stated.
The Center for Medicare Advocacy continues to support reestablishing this Committee, and urges House members to join in this effort.