How Nursing Homes Can Prepare for Staffing Standards, Gaps

December 04, 2023 - After experiencing the brunt of the COVID-19 pandemic, long-term care facilities have prioritized strategies to improve staffing levels and care quality. The federal government has taken action, too, proposing minimum staffing standards for nursing homes and other long-term care facilities.

However, the standards are not sitting well with everyone in the industry and nursing homes will have to make changes to comply with them.

CMS included three main staffing requirements for nursing homes participating in Medicare and Medicaid in its Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting proposed rule.

First, nursing homes must provide each resident with a minimum of 0.55 hours of care per day from a registered nurse and 2.45 hours of care per day from a nurse aide. Facilities must ensure they have sufficient staffing that meets the needs of their residents, which may require higher staffing levels than the proposed minimum standards.

Second, nursing homes must have a registered nurse onsite 24 hours per day, seven days a week, who can provide direct resident care. Third, nursing homes must complete enhanced facility assessments on staffing needs.

While the standards are intended to improve residents’ experiences at these facilities, nursing homes will likely face significant challenges when it comes to compliance.

“The main challenge is there are not enough human beings that have these jobs to fulfill this mandate,” Lourdes Martinez, partner at Sheppard Mullin, told RevCycleIntelligence.

“In the country, we’re over 100,000 people short of filling these jobs, even if the nursing homes were trying to get these job slots filled. The lack of individuals who are nurses and certified nursing assistants is the first big hurdle.”

According to KFF, just 19 percent of nursing homes in the United States currently meet the proposed staffing standards.

In a scenario with enough nurses to fill these roles, the mandate is still unfunded, meaning facilities would suffer financially, Martinez added.

Congress members and lobby organizations have opposed the proposed staffing mandates.

In September 2023, a group of senators penned a letter to CMS urging the agency to rescind the proposal, stating that it is “overly burdensome and will result in additional closures and decreased access to care.” The letter suggested CMS work with Congress on alternative approaches to ensure quality and safety in nursing homes.

Similarly, the American Hospital Association (AHA) and the American Health Care Association/National Center for Assisted Living (AHCA/NCAL) wrote to CMS earlier in the year expressing concerns about the staffing minimums.

“Federal staffing mandates for nursing homes in the middle of a labor crisis would exacerbate the current access to care crisis,” the letter stated. “We anticipate many nursing homes will be forced to further reduce their capacity and even close their doors if they are unable to meet these staffing mandates. This would accelerate the domino effect across the entire continuum of care and leave vulnerable seniors with fewer care options.”

On the other hand, some Congress members have encouraged CMS to finalize the staffing proposals, highlighting how inadequate staffing levels in nursing homes result in lower quality of care.

If the mandates are finalized, nursing homes must address their staffing shortages with recruitment and retention strategies.

“[Nursing homes] must be creative to attract personnel and keep the personnel that they have. If you have a good working culture—if it’s a good place to work—you’re going to retain people and you’re going to attract people,” Martinez shared.

However, a positive working environment will not always be enough when there is a shortage of nurses and CNAs to recruit. Being a nurse and a CNA is a difficult job, Martinez pointed out, and many people are not interested in a vocation with low pay. If more people were choosing to go to nursing school or become CNAs, it would help alleviate some of the staffing issues facilities are facing.

Although it’s unclear whether CMS will finalize the staffing shortages, nursing homes should be prepared to comply with the requirements.

The staffing assessment mandate of the regulation is slated to start 60 days after the final rule. Given this fast turnaround, nursing homes should begin doing a deep dive and running data analytics on their staffing, according to Martinez.

For example, if facilities experienced a certain number of resident falls in November, they could determine what shifts and how many staff members were on when the falls occurred. Facilities can then use the data to fix and prevent these issues prior to the staffing assessments.

Aside from staffing minimums, the proposed rule included provisions to improve Medicaid payment transparency.

“If I owned a nursing home, I would do a good compliance review of our related party transactions and if we are paying fair market value for good services,” Martinez said. “I would make sure that my nursing home had a robust, working compliance program so that any issues can be detected and fixed because it’s better to find them and fix them yourself than have the government come do it.”

As many opponents have mentioned, establishing one set of requirements for the entire long-term care industry could result in unfair expectations, especially since case mix index varies by facility.

“Some nursing homes have very sick patients and would need more than the hours that the federal government is [proposing],” Martinez noted. “Some nursing homes are catering to the elderly that needs some help with their activities of daily living or aren’t that sick or [are] just elderly and need somebody to keep an eye on them and make sure they take their medication.”

“Those nursing homes would need less than the three hours that the federal government is looking to mandate. I don’t think you can treat every nursing home exactly the same because every nursing home has a different population.”

Perhaps an alternative solution to the proposed staffing standards could be crafting a case-by-case strategy that bases required staffing levels on facilities’ case mix index.