80 percent of nursing homes must add staff under new rule

Nearly eight in 10 U.S. nursing homes will have to hire more nurses to comply with the country’s first staffing requirement, a senior Biden administration official said after CMS finalized the regulation Monday.

Meeting the requirement — which calls for more nursing staffing of all kinds and a registered nurse on site 24/7 at most facilities — could take time and CMS is giving a runway for urban and rural facilities to comply: three and five years, respectively.

Overall the rule will cost long-term care facilities $43 billion over 10 years, not counting exemptions that facilities can qualify for, the administration forecasts.

CMS will give guidance to states charged with enforcing the requirement. A facility that does not comply could face fines.

The agency did make some changes to the original proposal it made last year. For instance, the final rule allows the possibility of an exemption to the requirement that a nurse be on duty at all times — if a facility can prove it has had difficulty hiring staff. The exemption would allow other appropriate staff, such as a physician assistant, to cover an eight-hour period each day.

“We believe our final rule is responsive to all of those comments received from a variety of different voices,” said another senior administration official granted anonymity because they were not authorized to be quoted by name.

The regulation is part of a larger effort from the administration to improve care in nursing homes in the wake of the Covid pandemic, when more than 200,000 residents and staff died from the virus.

But nursing home leaders said the staffing requirement isn’t achievable and that it will reduce the number of homes for patients.

“Our residents and our families are going to have to go further to access care,” said Nate Schema, president and CEO of the Good Samaritan Society, which operates nursing homes.

However, patient advocates, unions with health workers and administration officials have touted the rule as a landmark policy change that will improve care for elderly people.

“The provisions that make up the nursing home staffing rule mark a long-overdue sea change,” said Mary Kay Henry, president of SEIU International, in a statement.

Even so, advocates of the rule have expressed concern that CMS will have difficulty enforcing it and blocking efforts to repeal it in the courts or in Congress. That’s now a priority for a number of long-term care industry groups.

Nursing home industry groups told POLITICO Monday that they are focused on persuading Congress to block the rule in its current form. Reps. Greg Pence (R-Ind.) and Michelle Fischbach (R-Minn.) last month introduced the Protecting America’s Seniors’ Access to Care Act, which would effectively repeal the rule, though its path forward is uncertain.

Some rural Democrats oppose the rule. Rep. Jared Golden (D-Maine) is a bill sponsor.

And powerful Republicans, like House Energy and Commerce Chair Cathy McMorris Rodgers (R-Wash.), spoke out against the regulation. “The president’s one-size-fits-all, Washington-knows-best approach to long-term care is an unfunded mandate that will drive up costs and threaten access for patients,” she said in a statement.

But the regulation also has many supporters in Congress. Rep. Lloyd Doggett of Texas, the top Democrat on the Ways and Means Health Subcommittee, applauded the rule for making “modest improvements” and the administration for “overcoming industry influence.”

The nursing home industry is also considering taking the administration to court.

Leaders of long-term care systems told POLITICO they expected the fight over the staffing requirement would eventually come before a judge.