REFORM (PROVIDERS)- What Share of Nursing Facilities Would Meet Possible New Staffing Requirements?

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[MM Curator Summary]: A lot (45%) of nursing home providers would struggle to give residents 3.5 hours of care per day.



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Nursing facilities provided medical and personal care services for nearly 1.2 million Americans across 15,076 Medicare and Medicaid-certified facilities in 2022. While these facilities provide care to an older, frail, and disproportionately female population, there have been long-standing concerns about insufficient staffing in nursing facilities and its impact on quality. A recent report issued by the National Academy of Sciences, Engineering, and Medicine (NASEM) raised concerns about low nursing staff levels in nursing facilities across the country and the impact of inadequate staffing levels on the quality of care for nursing home residents. The high mortality rate in nursing facilities during the COVID-19 pandemic highlighted and intensified the consequences when staffing levels are low and quality suffers. A March 2023 report by GAO cited the need to improve staffing as a priority issue in nursing facilities, finding that inadequate staffing made it difficult for nursing homes to adhere to proper infection prevention and control practices.

In light of these concerns, the Administration issued an executive order in April 2023 directing the Secretary of Health and Human Services to consider actions to promote adequate staffing at nursing homes and reduce staff turnover. The order also directed the Secretary of Labor to take actions that would improve the jobs of long-term care workers. This executive order followed the release of a fact sheet by the Biden Administration in February 2022 announcing forthcoming requirements for minimum nursing facility staffing levels.

This data note explores the current state of nurse staffing levels at nursing facilities in anticipation of the forthcoming proposed rule on staffing regulations. Specifically, we analyze the percentage and characteristics of facilities that would meet higher levels of nursing staff, if required under Medicare and Medicaid. The analysis includes data from 14,575 nursing facilities (97% of all facilities, serving 1.17 million or 98% of all residents) that reported staffing levels in June 2023. Staffing levels and requirements are often specified as direct care hours per resident day (HPRD), which equals the total number of hours worked by each type of nursing staff (nurse aides, registered nurses, and licensed practical nurses) divided by the total number of residents. Key takeaways include:

  • Nearly all facilities would meet a requirement of 2.5 or fewer HPRD and 85% of facilities would meet a requirement of 3.0 HPRD, but close to half (45%) of all nursing facilities would not meet a 3.5 HPRD requirements, and only 29% would meet an HPRD of 4.0.
  • Similarly, when looked at as a share of residents, 83% of residents live in a facility with staffing levels of at least 3.0 HPRD, but 50% of residents live in a facility that meet a 3.5 HRPD and only 23% live in a facility with staffing levels of 4.0 or greater.
  • At any required staffing level above 2.5 HPRD, a lower percentage of for-profit nursing facilities would meet the requirement than non-profit or government nursing facilities.
  • There is wide state variation in the share of facilities that would meet required HPRD levels of 3.0 or higher: At a level of 4 HPRD, the share of facilities meeting the requirement would range from 12% in Texas to 100% in Alaska.

HPRD is a relatively simple measure that does not account for what type of nursing staff are at the facility or the types of patients the facility serves. The measure also does not account for the number of non-nursing staff employed by a facility. The proposed rule is likely to strengthen the HPRD minimum requirement and could potentially include additional nurse staffing requirements. If the proposed rule includes requirements related to the types of nurses facilities must employ (and the hours they must work) or adjusts the number of required nurses based on patient health and frailty, fewer nursing facilities would meet a given requirement than are shown here. The rule may also require nursing facilities to employ additional staff beyond nurses, but such requirements are outside the scope of this analysis.

What are Current Staffing Requirements for Nursing Facilities?

The 1987 Nursing Home Reform Act, established the first federal staffing minimums for nursing facilities. The Obama Administration issued an update to these regulations in 2016. Federal regulations require facilities to provide licensed nursing services 24 hours a day, 7 days a week and to have a registered nurse on duty eight hours per day, seven days per week. Facilities must also appoint a director of nursing, have a full-time registered dietician on staff, and provide services that are “sufficient” to meet residents’ needs. Combined, federal regulations have been interpreted as requiring the equivalent of 0.3 nursing HPRD for a 100-bed facility. Requirements are applied irrespective of facility size or resident census, with two exceptions: In facilities with daily occupancies of 60 or fewer, the director of nursing may serve as a charge nurse; and in facilities with greater than 120 beds, staff must include at least one-time full-time social worker.

For at least 20 years, a number of groups have suggested that federal requirements for nursing staff levels (0.3 HPRD) are below the levels that would ensure patient safety and well-being. For example, in 2001, a report commissioned by the Centers for Medicare and Medicaid Services (CMS) recommended a minimum of 4.1 HPRD. In April 2022, the National Academies of Science, Engineering, and Medicine (NASEM) published a report with staffing recommendations that include: having RN on staff 24/7 with additional RN coverage as needed (current requirement of 8 hours per/day); a full-time social worker (currently this only applies to facilities over 120 beds); and an infection prevention and control specialist (no current requirement). The report also recommended funding research to identify optimum staffing levels for other direct care staff. A KFF June 2022 analysis of state policies on nursing facility staffing minimums found that most states require staffing standards above federal requirements.

What Share of Nursing Facilities Meet Varying Levels of Staffing Requirements That Could Be Included in the Forthcoming Proposed Rule?

As of June 2023, virtually all nursing facilities meet current staffing requirements (0.3 HPRD) and most would meet requirements of up to 3.0 HPRD, but if the new staffing requirements are 4.0 or greater, most facilities would need to hire new staff to comply (Figure 1). Because it is unknown what the new requirements might be, this analysis shows how many nursing facilities would meet required HPRD ranging from 1 to 5. Nearly all facilities would meet a requirement of 2.5 or fewer HPRD and 85% of facilities would meet a requirement of 3.0 HPRD, but close to half (45%) of all nursing facilities would not meet a 3.5 HPRD requirements, and only 29% would meet an HPRD of 4.0. Similarly, when looked at as a share of residents, 83% of residents live in a facility with staffing levels of at least 3.0 HPRD, but 50% of residents live in a facility that would meet a 3.5 HRPD and only 23% live in a facility with staffing levels of 4.0 or greater (Figure 1).

A small share of nursing facilities currently have staffing levels that would meet a requirement higher than 4 HPRD. Only 15% of facilities have staffing levels over 4.5 HPRD and just 8% have levels of 5.0. Only one in ten residents live in a facility with 4.5 or more HPRD and just 5% live in a facility with 5 or more HPRD.

If the required HPRD is adjusted for the health and frailty of residents in a nursing facility (case-mix), about 70% would meet a requirement of 3 HPRD, which is lower than the 85% that would meet an unadjusted requirement of 3 HPRD (Figure 2). Under current requirements, facilities do not have to adjust staffing based on the types of residents that live in the facility. However, federal data include staffing levels for facilities that are adjusted to reflect the health and frailty levels of facility residents. This adjustment is called “case-mix” and accounts for the fact that residents who have more health needs or are frailer are expected to require more assistance from nursing staff. For a given required HPRD, a smaller percentage of facilities would meet a “case-mix” adjusted requirement than would meet an unadjusted requirement.

At any required staffing level above 2.5 HPRD, a lower percentage of for-profit nursing facilities would meet proposed staffing levels than non-profit or government nursing facilities (Figure 3). If the level were set at 3 HPRD, 81% of for-profit nursing facilities would meet the requirement compared with 94% of non-profit facilities and 90% of government facilities. At 3.5 HPRD, differences by ownership type widen: a smaller share (47%) of all for-profit nursing facilities would meet requirements than non-profit facilities (75%) or government facilities (68%). At 4.0 HPRD, just 20% of for-profit nursing facilities would meet requirements compared with about half of non-profit (52%) and government facilities (47%). About 72% of all facilities are for-profit (home to 74% of residents), 22% are non-profit (home to 20% of residents), and 6% are government-owned, (home to 6% of residents).

Differences by ownership status are smaller when using an HPRD adjusted for resident health and frailty. When using this adjusted HPRD, only about 12% of for-profit facilities, 8% of non-profit, and 8% of government facilities would meet a requirement of 3.5 HPRD. There is nearly no difference by ownership type in the percentage of facilities that would meet a case-mix adjusted requirement of 4 HPRD or higher.

If required staff levels exceed 3 HPRD, there would be wide variation across states in the share of facilities that would meet the requirements (Figure 4). There is minimal state variation across the states if the new requirements are 2 HPRD or fewer because over 90% of facilities would meet a required level of 2 HPRD in all states (Figure 4). If the requirement is 3 HPRD, the share of facilities in compliance would range from 58% in Missouri to 100% in five states and, if set at a level of 4 HPRD, the share of facilities in compliance would range from 12% in Texas to 100% in Alaska. Results are similar when looking at the percentage of nursing facility residents who live in a facility that would meet various staffing requirements (Appendix Table 1).

Staffing levels also vary within states, though some states generally have lower levels of staffing than others. For example, in Alaska, staffing levels range from 4.7 to 12.7 while in New Mexico, facilities range from 2.3 to 5.6 (Appendix Table 2).

What Happens to Nursing Facilities When They Do Not Meet Required Staffing Levels?

For facilities determined out of compliance with federal staffing requirements, penalties vary depending on a deficiency’s severity and how long it takes for a nursing facility to reach substantial compliance.
Substantial compliance is a level of compliance with the requirements such the deficiency no longer poses a substantial risk to resident health or safety. For deficiencies that do not result in immediate jeopardy, facilities are given up to six months to correct deficiencies. If a facility does not come into substantial compliance within three months, Medicare and Medicaid will not pay the costs for individuals admitted after the deficiency finding date. If a facility that does not come into substantial compliance within six months, Medicare and Medicaid will not pay the costs for any individuals in the facility. For deficiencies that result in immediate jeopardy, CMS or the State Medicaid Agency may either: 1) appoint temporary management to oversee operations while deficiencies are corrected or 2) end the facility’s participation in the Medicare and/or Medicaid programs and transition residents to another facility or community setting.

Between July 2021 and July 2022, about 19% of nursing facilities received deficiencies for “Nursing Services“, meaning that they failed to have “sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety”. This grouping of deficiencies captures more than just failing to meet the 0.3 HPRD requirement and includes other deficiencies such as the failure to ensure proper training for nurse aides. The vast majority of these deficiencies were not associated with harm to patients.

What are Key Issues to Watch?

Looking ahead, if a proposed rule is issued and finalized, many nursing facilities may need to hire new staff to meet the proposed staffing levels, but the extent of the challenge will depend on the specifics of the new requirements. Key considerations for evaluating new requirements, beyond the level of the minimum staffing requirement, include the following.

  • How long do nursing facilities have to comply with the new requirements and are they phased in over time? Implementation periods of several years and phased-in requirements give nursing facilities more time to come into compliance.
  • Do the new requirements include a total number of HPRD or do they include specific requirements for different types of nursing staff? Requirements for overall staffing levels will be easier for nursing facilities to meet than requirements that are specific to each type of nursing staff.
  • Do the new requirements include requirements for non-nursing staff such as social workers, nutritionists, and infection control specialists? Requirements for non-nursing staff could make it harder for some facilities to comply.
  • Are the new requirements adjusted for patients’ characteristics such that facilities with higher-risk residents need to have more staff or more highly trained staff? It may be more difficult for nursing facilities to meet requirements that vary based on patient characteristics.

Compounding the compliance challenge are workforce shortages in the long-term services and supports (LTSS) sector, which reflect demanding working conditions and relatively low wages. The COVID-19 pandemic affected health care workers in all settings but particularly for direct care workers who provide LTSS. As of December 2022, employment levels were still over 13% below pre-pandemic levels for nursing care facilities and 7% below pre-pandemic levels for community care facilities for the elderly. Immigrants could help fill some of those positions, but a backlog of green card petitions is expected to further exacerbate nursing shortages across both health and long-term care sectors. Nationwide, there is “a growing crisis of unfilled job openings and high staff turnover” in the long-term care sector. Recognizing these shortages, most states have moved forward to increase Medicaid payment rates to LTSS providers. In a recent survey of Medicaid directors, 44 states reported increasing Medicaid rates for nursing facilities in 2022, and a survey of HCBS programs found that 48 states increased rates for home- and community based LTSS providers. Despite those pay increases, workforce shortages persist.

Potential increases in nursing home staffing requirements could increase costs, which may be difficult for some states’ Medicaid programs to absorb without additional federal funding. The American Health Care Association, a group representing both for-profit and not-for-profit long-term care facilities, commissioned a study in anticipation of the proposed rule and estimated that a minimum staffing requirement could cost anywhere from 3 billion to 10 billion dollars in a single year and require hiring more than 187,000 nurses and nurse aides. It is not clear how these costs will be financed, but they are likely to be passed on to public and private payers for nursing facility services, including residents and their family members who paid $45 billion in out-of-pocket costs for care in nursing homes and other institutional LTSS settings in 2020. Medicaid spent nearly $53 billion dollars in that year, about twice the amount ($26 billion) that traditional Medicare spent on skilled nursing facilities (SNFs) in 2020. Medicaid financing is shared by the states and the federal government. However, unlike the federal government, states must meet balanced budget requirements, and therefore, may need to cut other spending or raise taxes to pay for the state share of additional nursing home costs.

In addition to potential costs to meet nursing facility staffing requirements, a recent proposed rule on Medicaid access would require states to demonstrate that their payment rates for home and community-based LTSS are “adequate to ensure a sufficient direct care workforce to meet the needs of beneficiaries and provide access to services in the amount, duration, and scope specified in the person-centered plan” Together these rules could require significant Medicaid investments in LTSS.