By Steve Wishnia

In February 2022, President Joseph Biden directed the Department of Health and Human Services to develop minimum staffing standards for nursing homes, to remedy the most chronic problem workers and patient advocates have with the quality of care. The federal Center for Medicare and Medicaid Services (CMS) has not yet released its proposed regulations, which were expected this spring — but the nursing-home industry is already opposing them.

The CMS draft proposal has been under review at the Office of Management and Budget since May, AFL-CIO health policy analyst Lee Goldberg told Work-Bites. There are “lots of rumors” about what it will be, he says. “‘It’s terrific.’ ‘It’s terrible.’ We don’t know.” But, he adds, “the nursing-home industry has been lobbying very heavily on this.”

Federal law does not set a minimum per-patient standard for staffing. A 2001 CMS study recommended at least 4.1 hours of daily direct care for each resident — 45 minutes from a registered nurse, 33 minutes from a licensed practical nurse, and 2 hours 48 minutes from a certified nursing assistant. Only Washington, D.C. currently requires 4.1 hours. New York State’s law mandating 3.5 hours went into effect in April 2022.

“There’s no one getting their meds on time,” Mary Samaroo, a licensed practical nurse in a Queens nursing home for 18 years, told a July 13 online rally organized by the AFL-CIO, SEIU, and the National Consumer Voice for Quality Long-Term Care. With 40 patients to take care of, she comes in unpaid at 5 a.m., two hours before her shift starts, “to get the basic things done,” she said. “I never take my lunch break because I’m just running through.”

Kathy Guerra, whose mother died in a Massachusetts facility in 2022, told the rally that her mother had been so neglected that she got “chronic necrotic ulcers”—bedsores so severe that skin tissue dies — from not being moved, and septic urinary-tract infections from having to wait an hour to be taken to the toilet.

“The facility’s explanation: Because we are short-staffed,” Guerra said. “She wasted away before my very eyes.”

Seven out of ten nursing-home residents are not getting the care they deserve, said AFL-CIO secretary-treasurer Fred Redmond, and adopting the 4.1-hour staffing standard “can literally change that.”

Industry opposition

The American Health Care Association, a trade group representing more than 14,000 nursing homes and long-term care facilities, estimated last December that they would have to hire 191,000 more nurses and nurses’ aides to satisfy a 4.1-hour minimum.

“Proceeding with this mandate would worsen access to care for our nation’s seniors and be a disaster for poorer residents who rely on Medicaid,” AHCA President and CEO Mark Parkinson wrote in a July 11 letter to President Biden. “It is hard for facilities to find one nurse. The assumption that there are tens of thousands available to hire is preposterous.”

To cope with the staffing shortage, he wrote, nursing homes are having to ask staff to work overtime or extra shifts, and bringing in temporary workers on contract—but they “are associated with poorer outcomes given the reduced familiarity with the residents,” and staffing agencies are charging 22-28% more than they were before the pandemic.

“With limited government funding, these soaring labor costs are unsustainable,” Parkinson argued. “An unfunded federal staffing mandate would only exacerbate this situation.” More than 500 nursing homes have closed since the COVID-19 pandemic began, he said, and others have closed units or restricted new admissions.

“They can’t find enough people because they don’t pay enough, and staffing is so low that the working conditions are poor,” the AFL-CIO’s Goldberg responds. Retaining staff is as big a problem as finding staff, he adds, as many quit within their first month on the job.

A Kaiser Family Foundation study published July 14 said that among the 14,575 nursing facilities that reported staffing levels in June, only 29% provided at least four hours of nursing care per patient, and almost half provided less than 3.5 hours. For-profit facilities, which make up 72% of nursing homes, averaged slightly lower, with 19% providing less than three hours of care.

The industry will look for exemptions from the regulations if they can’t meet standards, says Goldberg, such as exemptions for rural areas. But some rural states, such as Maine and North Dakota, have among the highest staffing levels in the country, he notes; nursing homes can be among the largest employers in small towns.

It’s hard to tell what the industry can afford to pay workers, he says, because ownership “is so opaque,” with private-equity investment and “related-party transactions” in which interconnected companies own different aspects of a facility. But the presence of private equity indicates “there’s profit to be made.”

The AHCA’s Parkinson suggested that the staffing crisis could be eased by “changing our immigration policies to attract thousands of international nurses, using innovative technology to help provide better care with fewer people, and continuing our efforts to help seniors stay at home as long as possible.”

“We’re fighting an industry that will oppose safe standards,” Greg Kelley, head of SEIU’s health-care division for Illinois, Indiana, Missouri, and Kansas, told the online rally. The AHCA has already spent $3.9 million lobbying, said Rep. Jan Schakowsky (D-Ill.).

Once the Office of Management and Budget finishes reviewing the proposed regulations, the Department of Health and Human Services will publish a draft version of the rule, and there will be a 60-day period for public comment.

“It’s going to be a contest between us and the nursing homes to see who can get more public support,” says Goldberg. “They’re going to run a lot of scary ads. But we have something they don’t. We have stories of real people.”