Minimum Staffing Requirements for Nursing Homes Pose Regulatory Risks

As the nation continues to open back up in the wake of COVID-19, individual communities and providers continue to face significant staffing shortages and financial pressures. A June 2021 Senior Housing News article reported that 81% of assisted living providers suffer from staffing shortages.[1] A September 2021 survey by the American Health Care Association and the National Center for Assisted Living showed that 86% of nursing homes and 77% of assisted living providers said their workforce situation has “gotten worse” over the three months preceding the survey.[2] In the same survey, more than 7 out of 10 long term care facilities said “a lack of qualified candidates” and “unemployment benefits” have been the biggest obstacles in hiring new staff.[3]

In the midst of these continuing financial and staffing pressures, providers would be remiss if they did not also consider the existing and prospective regulatory requirements for minimum staffing levels. This article briefly outlines a sample of such minimum staffing regulations, as specifically applied to nurses, and also offers some potential cost-effective ideas for maintaining a minimum level of required nursing staff.

Recent Regulatory Requirements for Minimum Nursing Staff

The government has increased scrutiny and staffing requirements in response to COVID-19. President Biden’s proposed Build Back Better bill, for example, would require the U.S. Department of Health and Human Services (“HHS”) to submit reports to Congress on the appropriateness of minimum staff to resident ratios in skilled nursing facilities,[4] signaling future potential minimum staffing ratios that might extend beyond the reach of COVID-19.

The Centers for Medicare and Medicaid Services (“CMS”) announced in November 2021 increased oversight of nursing services pursuant to 42 CFR § 483.35, which mandates sufficient nursing staff at facilities receiving Medicare reimbursement:

“The facility must have sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care and considering the number, acuity and diagnoses of the facility’s resident population in accordance with the facility assessment required at §483.70(e).”[5]

Specifically, CMS will survey nursing homes in the future for nurse competency, inappropriate use of antipsychotic medications, and other areas of residents’ health and concern.[6]

Furthermore, CMS has increased its reporting requirements for nursing homes, public posting of facility staffing measures, and enforcement penalties for nursing homes that do not comply with staffing requirements.[7] CMS has historically posted facility staffing metrics on Nursing Home Care (now known as Care Compare), such as the average number of hours worked for nursing staff per resident per day. More recently, CMS uses the public Nursing Home Five Star Quality Rating System to identify facilities with staffing challenges, such as low weekend staffing or excess variation in daily staffing levels. In January 2022, CMS began posting data on the level of weekend resident nurses, total nurse staffing, and staff turnover for all nursing homes on the Care Compare website.[8]

States have also recently increased scrutiny over minimum nurse staffing levels. As an example, New York proposed a bill to establish nursing home staffing levels, such as 3.5 hours of total nursing care per resident per day, with 1.1 hours of care being required from a licensed nurse.[9]

Potential Cost-Effective Strategies

There are several strategies providers and nursing facilities may consider to comply with the government’s increasingly-stringent staffing requirements:

• Increased use of telehealth and telemedicine technologies, especially in light of CMS’ expanded reimbursement for such services.[10]
• Flexible pay and scheduling structures for nursing staff, including incentive pay, career development and training programs, and alternative benefits that do not increase base pay.
• Increased adoption of automatic technologies or administrative processes such as patient intake, consent management, payment processing, and appointment scheduling, to reduce staff workload.
• Taking advantage of governmental funding for additional clinicians, such as the American Rescue Plan’s National Health Service Corps and Nurse Corps.[11]

Additionally, the government has been cracking down on excessively high costs charged by nurse staffing agencies, which could help providers maintain cost-effectiveness as they continue wrestling with these staffing challenges. For example, the U.S. Department of Justice and the Federal Trade Commission have recently increased enforcement against staffing agencies that price-fix nursing wages, as well as against nursing personnel agencies who engage in price gouging or unfair competition.[12] Going forward, providers would be well-served to keep in mind these and any other regulatory staffing requirements. Bradley attorneys can assist with the full spectrum of healthcare regulatory and employment matters, or with any other matter that arises in the long-term care space.

Footnotes

[1] Tim Regan, “81% of Assisted Living Providers Report Recent Staff Shortages,” Senior Housing News (June 23, 2021), available at https://seniorhousingnews.com/2021/06/23/81-of-assisted-living-providers-report-recent-staff-shortages/.  

[2] “State of the Long Term Care Industry: Survey of nursing home and assisted living providers show industry facing significant workforce crisis,” American Health Care Association, National Center for Assisted Living (September 2021), available at https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/Workforce-Survey-September2021.pdf. 

[3] Id.

[4] H.R. 5376 (117^th Congress) (2021-2022).

[5] 42 CFR § 483.35.

[6] “Changes to COVID-19 Survey Activities and Increased Oversight in Nursing Homes,” Memorandum from CMS to State Survey Agency Directors (Nov. 12, 2021).

[7] “Nursing Home Staff Turnover and Weekend Staffing Levels,” Memorandum from CMS to CMS Certified Nursing Home Operators (Jan. 7, 2022).

[8] Id.

[9] Senate Bill 6346 (State of New York) (2021).

[10] See, e.g., CY 2022 Medicare Physician Fee Schedule, available at https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/PhysicianFeeSched.

[11] “HHS Announces Record Health Care Workforce Awards in Rural and Underserved Communities,” U.S. Health and Human Srvcs. (Nov. 22, 2021).

[12] See, e.g., Criminal Indictment, U.S. v. Ryan Hee; and VDA OC, LLC, No. 98 (D. Nev) (Mar. 26, 2021); Ltr. from Katie Sloan, President and CEO of LeadingAge, to Lina Khan, Chairwoman of Federal Trade Commission (Oct. 8, 2021), available at https://leadingage.org/sites/default/files/LeadingAge%20Letter%20to%20FTC%20-%20staffing%20agencies%20final%2010-8.pdf.