On September 3, 2023, CMS and HHS released the official nursing home staffing mandate proposal. For the Biden administration, it’s the latest move toward fulfilling Biden’s 2022 State of the Union promise to “protect seniors’ lives and life savings by cracking down on nursing homes that commit fraud, endanger patient safety or prescribe drugs they don’t need.”
For many in the skilled nursing industry, it’s “policy insanity.” Mark Parkinson, CEO and president of the American Health Care Association, a nonprofit, told Healthcare Dive: “It requires nursing homes to hire tens of thousands of nurses that are simply not there. It then penalizes us and threatens to displace hundreds of thousands of residents when we can’t achieve the impossible.”
The highly anticipated proposal, which received almost 47,000 public comments, will require any Medicare- or Medicaid-certified skilled nursing facility to provide residents with a minimum of .55 hours of registered nurse (RN) care and 2.45 hours of nursing aide care per patient per day, with the additional requirement of having an RN on the floor 24/7.
If adopted, the CMS staffing mandate will give most skilled nursing facilities three years to meet staffing minimums (those in rural areas will have five years). Facilities will also be responsible for assessing their own staffing levels and staffing above the proposed minimum requirements if necessary. It's estimated that the finalization of the rule could take up to three years.
What is the CMS staffing mandate?
- If adopted, the rule will affect Medicare- and Medicaid-certified long-term care organizations
- It will require 2.45 nursing aide hours per patient per day (HPPD)
- It will require 24/7 RN coverage, along with .55 RN HPPD
- Facilities will have three to five years to meet HPPD requirements and two to three years to meet RN coverage requirements
- It has a hardship exemption for facilities that meet certain criteria
- It could take as long as three years to finalize the rule
Government regulation of the skilled nursing industry is nothing new
Though it’s been getting a lot of attention, this isn’t the first time the government has set standards of care for the skilled nursing industry. That dates back to the Social Security Act of 1935, which established Old Age Assistance (OAA) and spurred the development of the private skilled nursing sector.
The issue of care quality in skilled nursing facilities — and specifically, the lack of quality care delivered in certain facilities — has been at the heart of this involvement since the 1950s, starting with the Hill-Burton Act of 1954, which set fire and health standards for skilled-nursing nonprofits receiving public funds.
A short history of national skilled nursing industry regulations
With the Medicare and Medicaid Act of 1965, the government gained more regulatory power and began to set stricter standards for the use of government funds. Since then, the regulatory climate has varied by administration. Nixon gave a speech similar to Biden’s in 1970, and the Reagan administration was behind the Federal Nursing Home Reform Act of 1987.
In 2001, the last time CMS attempted to regulate staffing minimums in skilled nursing facilities, the recommended staffing minimums were higher, calling for RNs to be on the floor 24/7 to provide 0.55 to 0.75 HPPD. Their recommended minimum HPPD for nursing aides was 2.4 to 2.8.
State minimum staffing requirements and their effects
In thinking about how a national mandate could be implemented and enforced, it’s useful to consider how some state mandates have played out.
New York
New York enacted a minimum staffing mandate of 3.5 HPPD on April 1, 2022. By the date of this article’s publication, 75% of skilled nursing facilities in New York were unable to meet the minimums and were beginning to be fined up to $2,000 per day for violations. The state allotted 5% in extra funding for care, but industry leaders like Stephen Hanse, president and CEO of the New York State Health Facilities Association, have implored the state to bump funding to 20%, claiming that they would actually need a 40% increase to meet the minimums.
Rhode Island
2022 was the first year of Rhode Island’s Nursing Home Staffing and Quality Care Act, which required 3.58 hours HPPD. In January 2023, that minimum rose to 3.81 HPPD, and by the end of 2023, Governor Dan McKee had signed an executive order declaring a nursing home emergency. Citing the workforce crisis and financial burden on facilities, the executive order immediately suspended non-compliance fines.
Pennsylvania
In July 2023, the Pennsylvania Legislature increased minimum direct care hours in skilled nursing facilities from 2.7 HPPD to 2.87 HPPD. Additionally, the new legislation requires minimum staffing ratios: at least one CNA for every 12 residents and one LPN for every 25 during the day; one CNA for every 20 residents and one LPN for every 40 at night. According to a LeadingAge PA survey, these required ratios led 52% of 400 respondents to limit admissions between July 1 and October 6, 2023, up from 34% in a March 2023 survey. On July 1, 2024, Pennsylvania will increase its minimum HPPD requirement to 3.2.
California
California’s minimum staffing requirement went into effect on July 1, 2018, and requires 3.5 HPPD of direct care, 2.4 of which can come from a certified nursing assistant. But there are problems with oversight and enforcement.
Florida
In April 2022, HP1329 reduced staffing minimums in Florida from 2.5 HPPD to two HPPD, citing workforce shortages. The law also enabled 0.6 hours of direct care, formerly delivered by CNAs, to be delivered by any direct care staff. In early 2024, it was reported that the state was seeing an uptick in hospitalizations.
Can skilled nursing facilities meet the proposed national staffing minimums?
The data makes clear that most skilled nursing facilities will not be able to meet the minimums put forth in the CMS nursing home staffing mandate. CMS estimates that about 75% of facilities would have to increase staffing to meet the proposed minimums, but according to a 2023 brief by KFF, it’s about 80%. KFF also reports that the number of facilities able to meet the new requirements varies by state: In Alaska, 100% would meet the requirements, but only 1% in Louisiana would. The ability to meet minimums also varies by organizational type: 90% of for-profit facilities would need additional nurses versus 60% of nonprofits and government organizations.
Temporary hardship extensions are available for facilities that experience “workforce unavailability,” have put forth “a good faith effort to hire and retain staff” and have a “financial commitment to staffing.” (However, those exemptions come with detailed criteria that facilities must also meet.)
So what can facilities do to ensure quality of care while meeting the budgetary challenges that are sure to come if the CMS staffing mandate proposal becomes a rule?
How to set your facility up for growth in a changing regulatory environment
The pandemic exacerbated workforce issues, uncovered stories of neglect and made it harder than ever for operators to survive. Although many are beginning to recover, many are still struggling. And hiring is getting better, but hiring alone won’t solve the underlying problem: The senior population is growing, the healthcare workforce is aging and 47% of professionals plan to leave by 2025.
To meet increasing demand, whether that comes from increased staffing minimums or increased census, facilities need agile solutions that provide professionals with the flexibility they need. That’s why it’s more important than ever to have a true workforce partner that can help you gain agility and provide the quality care your residents deserve while supporting the well-being of your team.
In a recent ShiftKey survey, 78% of healthcare professionals who left the industry said ShiftKey’s technology helped them return, and 32% said they need to set their own schedule to continue working in healthcare. ShiftKey’s technology helps facilities connect with these independent professionals — 49% of whom have 10+ years of experience.
Unlike agencies, ShiftKey is a technology company that provides organizations with full transparency into spend and the ability to increase or decrease utilization as needs change. Technology companies like ShiftKey will continue to be vital in helping bring workers back to healthcare, and those workers will be key in ensuring there are enough workers to meet the new minimums, should they become law.
Although 2026 seems far away, to thrive in the new regulatory environment, you must find novel ways to increase coverage while growing revenue and staying on budget. ShiftKey is not the only technology solution available, but we do know how to help you find the solution that’s right for you by asking the right questions — you’ll find those in our PRN Executive Buyer’s Guide.
