Biden’s nursing home staffing proposal is dangerously inadequate

As nursing home residents and staff died by the thousands in the first months of the COVID-19 pandemic, one thing became clear: Understaffing in America’s nursing homes is lethal. Most facilities lacked the staff needed to prevent neglect and avoidable harm to residents. 

President Biden responded to the nation’s nursing home crisis by declaring that his administration would create a minimum staffing standard for nursing homes, to help ensure basic care and services for the nation’s more than 1 million nursing home residents.

This announcement was heralded by long-term care residents and their supporters. For years, nurses, physicians, researchers, consumer advocates and government reports had been sounding the alarm that understaffing in nursing homes jeopardized residents’ health and safety. 

Consider the result of understaffing in four New York nursing homes recently sued for abuse. 

One resident was so neglected his son couldn’t recognize him. Another resident was dying from an infected pressure sore that grew “cavernous” and ended up “eating away most of his buttocks.” Staff had so little time to provide basic care that they left windows open to reduce the stench of unclean residents, leaving residents “freezing” and swarmed by flies.

Unfortunately, the federal agency responsible for drafting Biden’s new staffing standard has just dropped a bombshell. On Sept. 6, it published a proposed staffing standard so minimal and with such huge exceptions that many nursing home residents will see no benefit at all.

To be sure, the proposal has some good news for residents. It requires a registered nurse to be present in a nursing home 24 hours a day, replacing the current federal requirement of only 8 hours. That’s a major step forward. RN levels predict nursing home quality, and RNs play a critical role in assessing, diagnosing, planning, and overseeing care. 

But when it comes to total staffing levels, the federal agency in charge, the Centers for Medicare and Medicaid Services (CMS), has proposed that nursing homes only be required to provide three hours of staff time per resident per day. That’s far less than what many states with state-specific minimum staffing standards require. It’s only 73 percent of the 4.1 hours per day that a rigorous CMS study found is necessary to avoid neglect. 

A lower standard might be understandable if the federal government planned to make all nursing homes comply with it. It doesn’t. 

CMS proposes granting waivers to both rural facilities and facilities in communities with below-average numbers of health care providers. Facilities must make a “good faith effort” to recruit and retain staff to get a waiver, but this effort doesn’t have to include offering the higher wages or benefits needed to attract workers. 

So long as a facility offers the “prevailing wage”— which is notoriously low — it can avoid the minimum staffing requirement. The Economic Policy Institute found that long-term care workers (over 80 percent of whom are women and who are disproportionately Black and immigrant women) are substantially underpaid and most lack any employer-provided retirement or health benefits.  

The nursing home industry argues that it can’t afford higher staffing requirements. Yet even nursing homes that are dependent on Medicaid (which the industry claims doesn’t pay enough) are being bought up by private equity firms because of their profit potential. And stories abound of nursing homes claiming poverty while their owners pocket millions.  

It’s time for the federal government to stop allowing nursing homes to operate with unsafe staffing levels. After all, the federal government foots the bill for three-quarters of nursing home residents. And the federal government shouldn’t continue to expect taxpayers to pay for nursing homes that lack the minimum staff needed to provide adequate care.

Nursing home residents, their families and their supporters need to demand minimum staffing standards that are higher and that apply to all nursing homes (rural residents deserve good care too). They may not have the resources of the nursing home industry, which routinely spends over $100 million a year on lobbyists. But they can make themselves heard. One way to do so: commenting directly on CMS’s proposed standard on the federal government’s dedicated website. CMS is legally required to read these comments and consider them in developing the final rule.

Inadequate nursing home staffing is not just an issue for today’s residents. Each of us may be one accident away from a nursing home. Whether we are 80 years old with a broken hip or 30 years old with a head injury, we shouldn’t have to worry that we’ll end up neglected in a nursing home too understaffed to keep us safe. 

As one longtime nursing home resident explained, understaffing means “you don’t get cleaned or changed which leaves you susceptible to all kinds of sicknesses” and that’s “counterintuitive to how you’re supposed to live in a nursing home. You’re not supposed to get sicker here because of low staffing.” He’s right. 

Nina A. Kohn is a visiting professor at Cornell Law School, a distinguished scholar in Elder Law at the Solomon Center for Health Law and Policy at Yale Law School and the David M. Levy Professor at Syracuse University College of Law. Charlene Harrington is professor emeritus at the University of California San Francisco’s School of Nursing. Lori Smetanka is executive director of the National Consumer Voice for Quality Long-Term Care.