COVID-19 caused the deaths of more than 200,000 nursing home residents and staff members. The extraordinarily high number of deaths – nearly 20% of the COVID-19 deaths nationwide were nursing home residents although residents constitute only 0.0006% of the population of the United States (approx. 331.9 million in 2021) – brought to public attention the poor quality of care in many nursing homes and led directly to President Biden’s historic nursing home reform agenda.
Staffing is the centerpiece of the President’s agenda. Unfortunately, the proposed rule issued by the Centers for Medicare & Medicaid Services (CMS) on September 6, 2023 fails to implement the President’s explicit directive to improve staffing levels in nursing homes and is, instead, a major step backwards.
The preamble to the proposed rule strongly makes the case for dramatically increasing nurse staffing levels in nursing facilities. It contains multiple sources of evidence (comments of residents, families, and staff, research literature, Request for Information, listening sessions, and considerably more) about the pervasive understaffing in nursing homes and the devastating consequences for residents and staff. Unfortunately, the proposed rule ignores this overwhelming evidence.
The proposed rule calls for nursing facilities to provide 3.0 hours per day of resident care (HPRD) of nursing care (.55 HPRD registered nurse (RN); 2.45 HPRD nurse aide) and fails to require any specified time for licensed practical nurses (LPNs) or total nurse staffing levels. In a bit of magical thinking, CMS nevertheless expects facilities “to maintain sufficient additional nursing personnel” (including LPNs) and to meet the additional standard of providing “sufficient” staff (as currently required, but honored in the breach), even if they meet the minimum staffing levels. CMS also puts its faith in the facility assessment requirement, mandated in 2016 but essentially ignored by facilities, that requires facilities to identify their actual staffing needs, based on resident acuity and census. (On a positive note, the proposed rule also requires facilities to have an RN on-site 24 hours each day, although it does not specify that the RN must be providing direct care to residents.)
The 3.0 HPRD in the proposed rule is lower than the 4.1 HPRD staffing level (.75 HPRD, RN, .55 HPRD, licensed practical nurse, 2.8 HPRD, nurse aide) identified in the federal government’s own 2001 report as necessary to prevent avoidable harm to residents. The 3.0 HPRD is even lower than the grossly inadequate average staffing levels of 3.76 HPRD that nursing facilities currently provide.
The proposed rule is insufficient in additional ways; it authorizes exemptions for facilities that cannot meet the 3.0 HPRD staffing standard and phases-in implementation over a several year period (more than five years for some requirements for rural facilities).
|Here’s our response to the delayed implementation of staffing standards and exemptions for facilities not meeting the 3.0 HPRD nurse staffing ratios. Imagine you are on a plane. An announcement comes on over the loudspeaker. “We have no pilots today, maybe next year. So today, the baggage handlers will be flying your plane.” How would you feel? The answer is obvious. If facilities cannot provide sufficient nursing staff to provide care to residents, they should not be in the business of providing care to residents. No delays, no exemptions.
Most troubling is the method that CMS uses to determine nurse staffing levels. The Congressionally-mandated 2001 report was clinically-based and resident-focused and it determined how much nursing care residents actually need. The 2002 Abt report, relied on by CMS in drafting the proposed rule, looks at staffing levels that are needed to raise a facility’s quality measure and health survey ratings to the 50th percentile. The 2022 report and CMS’s proposed rule do not consider whether these staffing levels actually meet residents’ needs for necessary and appropriate care.
Despite the serious weaknesses in the proposed rule, the two major nursing home trade associations continue to claim that they cannot meet the standards (American Health Care Association here and LeadingAge here), even as industry analysts describe positive increases in occupancy rates, increasing staffing levels, and higher Medicare and Medicaid reimbursement rates.
Residents and workers deserve much higher staffing standards than this rule proposes, and they deserve higher standards that are promptly and fully enforced. Advocates for residents will continue to do everything we can to ensure that final rules require appropriate staffing so that all residents receive the care and services they need and deserve.
Comments are the proposed rule are due November 6, 2023. The Center for Medicare Advocacy will be drafting and sharing comments.
CMS must mandate meaningful staffing standards in nursing homes now, in light of the devastating impact of the COVID-19 pandemic on residents and staff and the recent upsurge in COVID-19 in nursing facilities. If not now, when?
September 7, 2023 – T. Edelman