Battle brews over nursing home staffing requirements

President Biden’s administration is calling for minimum staffing levels at nursing homes, and the battle is heating up.

Nursing homes have filed a lawsuit to block new minimum nursing standards imposed by the Biden administration. The AARP is kicking off a campaign to rally public support to preserve the rule.

Nursing homes have filed a lawsuit aiming to upend new federal regulations that would impose staffing requirements at nursing homes. Operators of nursing homes argue that the Centers for Medicare and Medicaid Services went beyond its authority, and they have said the rule could lead to the closure of some facilities.

Advocates for seniors have said the federal standards are long overdue, and they’re necessary to ensure the safety of vulnerable people.

This week, the AARP is launching a campaign to preserve the minimum staffing standards, arguing that they are needed to protect the 1 million residents of America’s nursing homes.

Megan O’Reilly, AARP government affairs vice president of health and family, said the group will launch online advertisements in defense of the staffing rule. Members will be calling Congress to urge them to keep the federal requirement in place.

“As the American population grows older, more families who rely on nursing homes for their loved ones need to know their family is getting a reliable baseline of care,” O’Reilly said in a news conference last week.

In April, the CMS issued its much-anticipated rule on nursing home staffing levels.

Under the new rule, nursing homes would be required to provide residents about 3.5 hours of nursing care per day, with about a half-hour of care coming from a registered nurse and 2.45 hours of care per day from nurse aides. In addition, nursing homes will be required to have a registered nurse onsite, 24 hours per day, seven days per week.

Biden has repeatedly said he wants to improve the safety of nursing homes, and has been suggesting minimum staffing standards for most of his presidency.

Going to court

Nursing homes have argued that the minimum staffing standards for nursing homes aren’t realistic, as long-term care facilities have been struggling to fill vacancies.

The American Health Care Association, along with some nursing homes in Texas, has filed a suit to block the staffing requirement. The suit, filed in the Northern District of Texas, contends that the CMS has exceeded its statutory authority.

The suit cites CMS projections that the staffing requirement will cost nursing homes more than $5 billion annually. The AHCA estimates that the annual cost would actually approach $6.5 billion annually, after accounting for inflation.

Mark Parkinson, president and CEO of AHCA, said that the “flawed policy” will hurt both nursing homes and their residents.

“We cannot stand idly by when access to care is on the line and federal regulators are overstepping their authority. Hundreds of thousands of seniors could be displaced from their nursing home; someone has to stand up for them, and that's what we're here to do," Parkinson, the former Kansas governor, said in a statement.

Hospitals have also spoken out against the nursing home staffing requirement.

Health systems say they are essentially boarding patients for weeks, and in some occasions months, because they can’t find available beds at nursing homes or other post-acute facilities. Stacey Hughes, executive vice president of the American Hospital Association, said in a statement in April that the rule “creates more problems than it solves.”

“The loss of these nursing home beds could adversely impact patients who have completed their hospital treatment and need continuing care in nursing facilities,” Hughes said.

A KFF analysis found that one in five nursing homes (19%) would meet the CMS requirements, based on their current staffing levels.

Broad public support

The AARP is banking on public support for the new rule.

The organization polled Americans and found 80% of respondents said they support minimum staffing standards for nursing homes. O’Reilly noted the support crosses party lines, with 89% of Democrats, 74% of Republicans and 70% of independents voicing support for minimum standards.

AARP members have sent over 160,000 emails to members of Congress, urging them to abandon attempts to oppose the rule, O’Reilly said. And members will be continuing to press the case. Plus, an AARP billboard truck will circle Capitol Hill beginning Monday to tout the importance of the rule.

O’Reilly said regulations requiring minimum standards are essential, since nursing homes receive $80 billion in federal aid.

“We commend CMS for requiring nursing homes to meet important staffing standards, including having a registered nurse on site 24 hours a day, seven days a week,” she said.

In response to questions about a lack of available staffing at nursing homes, O’Reilly said nursing homes will have time to implement the rules. She also said, “We don't believe that nursing homes should be taking on residents if they don't have the staff there to care for them.”

Advocates for seniors were appalled by the high number of COVID-19 deaths in nursing homes. About 170,000 nursing home resident deaths have been tied to COVID-19, according to CMS data.

Mark Miller, District of Columbia long-term care ombudsman for Legal Counsel for the Elderly, recalled those deaths during the AARP news conference last week.

“It's outrageous that nursing homes that receive taxpayer dollars … mainly through Medicare and Medicaid aren't required to ensure quality care through adequate staffing,” Miller said. “America's most vulnerable seniors who live in nursing homes deserve better than subpar conditions. caused by understaffing, sitting in soiled clothes, going hungry, developing bedsores, as they are repositioned less frequently.”

O’Reilly said the evidence, and stories of loved ones getting substandard care, point to the need for minimum staffing standards.

“The rule has bipartisan support. It is long overdue, and it should help save lives,” she said.