Biden’s unworkable nursing rule will harm seniors

What could be wrong with wanting to have a registered nurse (RN) in every nursing home in the United States at all times? Nothing — it’s just not possible.

As most facilities are already staffed by a combination of certified nursing assistants (CNAs), licensed practical nurses (LPNs) and RNs, mandating such a requirement would devastate both nursing homes and the seniors for whom they care. But, this is exactly what the Biden administration is attempting to do.

A new rule proposed by the Centers for Medicare and Medicaid Services (CMS) seeks to radically increase federally mandated staffing levels in nursing homes in two ways. First, the rule, if finalized, would require every nursing home in the nation to have an RN on-site at all times, which is much more than the current requirement of eight hours daily, five days weekly. It would separately impose new minimum staffing ratios, requiring a certain number of RNs and CNAs per resident per day.

This is a well-intentioned goal and I, as much as anyone, want seniors to have the best care possible. But, good intentions are not enough. Policy needs to be informed by reality and what is possible. And unfortunately, the current reality is pretty bleak for America’s nursing homes.

At the moment, there are nearly 15,000 nursing homes throughout the country. Of these, 29 percent are in rural areas that are more difficult to staff. In my home state of Kansas, this number is even higher — 53.7 percent of nursing homes are in rural areas. Not even half of the nation’s nursing homes are currently staffed at the level required by the proposed rule, as facilities across the nation are contending with a workforce shortage.

The nursing home workforce has declined by 12 percent since the start of the COVID-19 pandemic, part of an overall contraction of the aging services workforce. Some of this can be explained by the burnout employees felt due to the intensity of the pandemic, but that is not the whole picture.

Since President Biden took office in 2021, inflation is up more than 17 percent. That puts an incredible strain on anyone running a business and the seniors and their families trying to afford care. Labor costs for nursing homes are now 22 percent higher than they were at the start of 2020.

Somehow, under these strained conditions, CMS expects nursing homes to find an additional 3,267 RNs to satisfy the 24/7 RN part of the rule. This would cost nursing homes $349 million per year and would increase annual costs for residents by almost $2,180. In the Sunflower State, that would rise to an additional $2,600 in resident costs each year. To meet the rule’s minimum staffing ratio requirement, an additional 12,639 RNs and 76,376 CNAs would be needed nationwide, costing nursing homes $4.2 billion per year at an average cost of $13.24 per resident per day. So, implementing the two parts of this rule would require upwards of 15,000 new RNs, plus more than 76,000 CNAs.

These numbers put nursing homes in a catch-22. Implementing the rule will cost money that most nursing homes don’t have. But even if money were not a problem, it wouldn’t solve the workforce issues. Remarkably, the CMS rule does nothing to address either of these concerns and help facilities find a way forward.

CMS has actually made it more difficult for long-term care facilities to comply by narrowly defining the type of staff that qualifies toward the requirement. Inexplicably, the CMS rule excludes licensed practical nurses (LPNs) from counting toward the minimum. By leaving out a fully credentialed and licensed type of nurse that has long been present in nursing homes, CMS further shrinks the already limited workforce facilities have to lean on.

Instead of their heavy-handed approach, the president and his administration should take a step back. They should let Congress, representing America’s senior citizens, drive the conversation. There are innovative solutions coming from within the People’s House that address the workforce, Medicare and other issues associated with giving seniors the best possible care.

In fact, I proposed one such solution in May. The bipartisan Ensuring Seniors’ Access to Quality Care Act addresses a critical shortage of CNAs who, unlike LPNs, count toward the minimum staffing requirement. The bill allows nursing homes that have been forced to suspend in-house CNA education programs, due to restrictions from violations, to resume those programs once quality standards are again met.

This is a commonsense bill. It accounts for the current workforce challenges nursing homes face without compromising on a commitment to quality care for residents.

In-house CNA programs, often free, offer a pathway to certification for qualified candidates who may not be able to afford an outside program or who do not live near such a program or school. Through these programs, nursing homes can attract, retain and build a pipeline of skilled staff.

At a time when employees, much less highly skilled employees, are hard to come by and the cost of school is prohibitive for many, every effort should be made to keep in-house CNA programs running. If a facility has corrected the deficiency for which it received a penalty, it would be allowed to resume its training of CNAs with additional oversight if deemed necessary.

Legislative solutions like this are needed before CMS proceeds with any federal minimum staffing rule. It is imperative that the Biden administration holds off on implementing this rule until sufficient plans are put in place to build up the necessary workforce to satisfy staffing ratios like this.

The Biden administration should join Congress in doing the hard work to address these issues and support seniors instead of trying to bend reality to fit their whims.

Ron Estes, one of only a handful of engineers in Congress, worked in the aerospace, energy and manufacturing sectors before representing Kansas’ 4th District since 2017. He is a fifth-generation Kansan, former state treasurer, and serves on the House Committee on Ways and Means, Budget Committee, and Education and the Workforce Committee.