US lawmakers fight over how to handle nursing home staffing

U.S. lawmakers are clashing over a proposal to add staffing requirements in nursing homes. A group of Republican lawmakers filed legislation to prohibit the federal government from implementing minimum staffing standards in skilled nursing facilities nationwide.

AUSTIN (KXAN) – U.S. lawmakers are clashing over a proposal to add staffing requirements in nursing homes.

A group of Republican lawmakers filed legislation to prohibit the federal government from implementing minimum staffing standards in skilled nursing facilities nationwide. The push comes as the U.S. Department of Health and Human Services considers a proposal for this type of unprecedented requirement for the industry.

H.R. 7513, introduced by U.S. Representative Michelle Fischbach, R-MN, and co-sponsored by 14 Republican representatives, would prohibit HHS from finalizing the proposal it released last September.

In a House Ways and Means committee hearing last week, Fischbach called the HHS proposal a "one-size-fits-all" mandate and said many facilities – particularly in rural or underserved areas – would not be able to comply because of workforce shortages and an ongoing staffing crisis.

"These facilities are already struggling to maintain their staffing levels, and have an even harder time finding new staff to fill positions," she said. "But the Biden Administration simply does not understand the problem – which comes as no surprise, since they do not understand rural America."

Many nursing homes would be forced to lower their resident count, resulting in waiting lists or even closures for facilities in smaller towns – ultimately limiting people's access to care, Fischbach said. The legislation would, instead, create an advisory panel focused on the skilled nursing workforce.

Fischbach said they had collected more than 1,000 signatures in support of the bill from people at most, if not all, of state nursing home associations.

Last October, Kevin Warren, president and CEO of the Texas Health Care Association (THCA), which represents hundreds of skilled nursing facilities in the state, told KXAN the HHS rule was "untenable" and "disappointing" given the staffing crisis the nursing home industry already faces.

“You have counties in the state of Texas that maybe only have one or two RNs in the county,” Warren said. “To simply put a mandate on it, doesn’t manufacture new staff to come into the profession.”

Lawmakers on the House committee, including U.S. Rep. Lloyd Doggett, D-TX, argued the bill abandons nursing home residents in favor of profits for the companies running the facilities.

Doggett recalled the story of a bedridden woman in a nursing home who waited two hours for assistance after vomiting on herself, before falling and being injured while attempting to clean herself up. In his comments before the committee, the congressman also referenced other reports he has heard "for years" from KXAN investigators in Austin about the quality of care in some facilities.

"The residents, their families and the nursing staff caring for them are pleading for help. Ensuring sufficient staff ensures dignity for workers and residents – it saves lives," said Doggett. "With this bill, Republicans are insisting on doing nothing more to address their concerns and improve nursing home safety."

The Centers for Medicare & Medicaid Services (CMS) inspects and rates nursing homes across the country with a star rating system measuring categories such as staffing and quality of care.

Texas ranks last when compared to every other state in the country in staffing.

Doggett also pointed to statistics on the amount of profits in the industry from the 2023 MedPAC report.

"They are absolutely correct about the worker shortage. While qualified workers are available, they are not willing to accept minimum wage, no benefits and insufficient support for emptying bed pans, lifting people out of their beds and other demanding tasks," he said. "Nursing homes have the funds to create better working conditions and attract more workers."

Several organizations, including AARP, AFL-CIO, and the American Federation of State, County and Municipal Employees wrote letters opposing the legislation, as well.

'A very significant problem'

The nursing home industry has been ringing alarm bells about staffing shortages – exacerbated by the pandemic – for years. Meanwhile, the federal government and President Joe Biden have promised to do more to improve care and protect people living in these facilities.

In September 2023, federal regulators with HHS issued the proposed rule through CMS. It would require facilities nationwide to provide residents with at least 33 minutes of care from a registered nurse every day and at least 2 hours and 27 minutes of care from a nurse aide. The proposal also calls for a registered nurse on-site at every facility at all times.

In addition, the proposed rule would require states to collect and report more information about nursing home worker compensation, as a percentage of Medicaid payments, CMS stated.

“When facilities are understaffed, residents suffer. They might be unable to use the bathroom, shower, maintain hygiene, change clothes, get out of bed, or have someone respond to their call for assistance,” said HHS Secretary Xavier Becerra in a news release. “Comprehensive staffing reforms can improve working conditions, leading to higher wages and better retention for this dedicated workforce.”

The rules, as proposed, would exceed the current standards in nearly all states and require 75% of U.S. nursing homes to “strengthen staffing,” according to CMS.

In November 2023, Doggett and more than 100 other lawmakers wrote a letter to CMS leadership, urging it to strengthen the staffing requirements even further, before finalizing the rule.

In his remarks at last week's hearing, Doggett told his colleagues about a recent report showing seven in 10 adults say they would be uncomfortable with being admitted to a nursing home if they could no longer care for themselves. Many reported being worried about their quality of care.

U.S. Rep. Bill Pascrell, D-NJ, took the point further and asked his colleagues how many of them would place a loved one into a facility, knowing there were not enough staff to care for them.

"To simply say, 'one size doesn't fit all' is a cowardly, cowardly way out of a very significant problem in this country," he said.

Pascrell went on to blame, in part, the private equity firms operating much of this industry: "They're sucking up public funding, obscuring profits and slashing care is a real danger this committee must address."

U.S. Rep. Dr. Drew Ferguson, R-Georgia, agreed that the role of private equity was something the committee should consider but said that was a separate issue from ensuring access to care.

"No matter what you offer to pay people in rural communities, there simply aren't enough healthcare workers there," Ferguson told the committee.

'What's even worse'

In order to give long-term care facilities time to comply with the proposed rule, CMS has outlined a "staggered implementation" depending on a facility's location. For example, facilities in urban areas would need to meet certain requirements at different points over a three-year period. Meanwhile, rural facilities would see later implementation dates and would not be required to meet the full staffing requirements until five years after the rule was published.

"CMS acknowledges the unique challenges that rural LTC facilities face, especially as it relates to staffing. We intend to promote safe, high-quality care for all residents regardless of location. We also recognize the need to strike an appropriate balance that considers the current challenges some LTC facilities are experiencing, particularly in rural areas," CMS wrote in the release about the proposal.

Still, lawmakers such as Ferguson and U.S. Rep. Adrian Smith, R-Nebraska, worried about the number of facilities closing each year, already.

"It's true that more staff is better in the context of serving those in a nursing home, but what's even worse for my constituents is the threat of not even having a facility available at all," he said.

U.S. Rep. Terri Sewell, D-Alabama, said she believed the regulation should also focus on increasing wages for staff to help with attracting and retaining talent. She and others also urged their colleagues to, instead, get creative and engaged with developing this workforce.

Separate from the proposed rule on staffing, CMS said it will use $75 million to fund incentives – like scholarships and tuition reimbursement – to help people enter nursing home careers. Those funds are connected to the HHS Health Workforce Initiative announced in July 2023.

There are more than 1.2 million nursing home residents, according to CMS.

“More than 500,000 direct care workers provide care in nursing homes, assisting residents with daily tasks, such as bathing, dressing, mobility, and eating,” states the CMS news release. “This work, performed primarily by women of color, is significantly undervalued. Direct care workers across long-term care settings earn low wages, rarely receive health and retirement benefits, and experience high injury rates.”

According to CMS, the comment period for the proposed rule on staffing closed on Nov. 6, 2023. The final rule is now under regulatory review with the Office of Information and Regulatory Affairs at the Office of Management and Budget. Federal records show there were more than 46,000 comments made on the proposed rule, and they can be viewed here.

KXAN investigators reached out to Texas Health and Human Services Commission on this bill. A spokesperson for the agency said it does not comment on pending legislation but that it will continue to ensure facilities comply with all state and federal requirements.