Department of Health and Human Services Proposes Federal Minimum Staffing Standards for Nursing Homes

On Friday, September 6, 2023, the U.S. Department of Health and Human Services (HHS) announced a proposed rule, seeking to establish minimum staffing requirements for nursing homes in the United States.

The proposal builds on a breadth of initiatives that the Biden Administration has undertaken to improve safety and quality of care in U.S. nursing homes. It is, however, the first of such initiatives to specifically target direct support to workers in these facilities. The initiative, if put into effect, will be administered by the Centers for Medicare & Medicaid Services (CMS), a federal agency within HHS.

The proposal comes amidst the ongoing nursing home staffing crisis that the COVID-19 pandemic exacerbated. A July 2023 study published in the Journal of the American Medical Association found that low wages, burnout, unsafe working conditions, and the increased burden of caring for already-vulnerable individuals during this public health emergency has led to a 13.3 percent decrease in nursing home sector employment since the onset of the COVID-19 pandemic. Meanwhile, more than 200,000 long-term care facility residents and staff have tragically died as a result of contracting COVID-19.

If the proposal is put into effect, Medicare and Medicaid certified long-term care facilities—nursing homes participating in Medicare and Medicaid—would be required to provide nursing home residents with a minimum of 0.55 hours of daily care from a registered nurse, as well as 2.45 hours of daily care from a nursing aide. Under the proposed rule, all nursing homes also would be required to have at least one registered nurse onsite around the clock. CMS estimates that nearly 75 percent of nursing homes would need to bolster their current staffing levels to achieve these proposed staffing baselines.

In its proposal, CMS cited several studies showing that adequate staffing in these facilities improves resident health and safety while maximizing the recruitment and retention of nursing staff. It also cited a need to reduce disparities in nurse-to-resident ratios between states. While the Nursing Home Reform Act of 1987 required “sufficient” staffing in long-term care facilities, the law lacked guidance as to how states should interpret this vague standard. This proposal, if implemented, would provide a consistent minimum staffing floor for long-term care facilities across the country.

While the focus of the proposed rule is on minimum staffing, it also acknowledges that staffing is inextricably linked to pay. As proposed, the rule would require states to collect and report regularly on nursing home employee compensation as a percentage of Medicaid payments, in an effort to collect data on the extent to which Medicaid dollars are used to compensate direct care workers and support staff rather than to fund administrative costs and administrative salaries. Although the rule would not require that a minimum percentage of all federal funding sent to nursing facilities be spent on workers, CMS explained in its proposal that it will consider such an initiative once it further analyzes the data that it will collect.

In explaining its interest in addressing nursing home worker compensation, the agency acknowledged in its proposal that “compensation levels are a factor in the creation of a stable workforce, and that a stable workforce will result in better qualified employees, lower turnover, and safer and higher quality care”—marking a seminal moment in which the federal government has made a clear policy statement that higher compensation is a matter of basic dignity for both nursing home workers and residents.

Although there is no exact timeline on finalizing the proposed rule, CMS proposed that that the requirement to have a registered nurse onsite around the clock take effect two years after the rule is implemented, and staffing minimums take effect three years after the rule is implemented. Facilities in rural areas will be given extra time to meet the requirements. If nursing home facilities fail to comply, the federal government may terminate their provider agreements or issue monetary penalties.

Public comment on the proposal ended on November 6, 2023, and those interested in developments—especially those who work in Medicare and Medicaid certified long-term care facilities—should monitor updates from the Department of Health and Human Services.

If you have questions about the potential impacts of this proposed rule, especially in facilities whose employees are covered by collective bargaining agreements, the experienced labor attorneys at Willig, Williams & Davidson are available to offer guidance to their clients.