A New Federal Rule Units Tighter Nursing Residence Staffing Requirements. Simply 16% of Illinois Properties Are in Full Compliance | Chicago Information
File photo of a nursing home on the South Side of Chicago. (Credit: Brittany Sowacke)
At times, Ebony Payne’s call light is on for 45 minutes before a nurse arrives to help.
For Payne, the time she spends waiting for staff to help clean her tracheostomy tube so she’s able to breathe is “life or death.”
“When you can’t breathe, nothing else matters,” she said.
The lag in timely care, Payne said, is due to a lack of adequate staffing at the nursing home where she resides on the North Side of Chicago. So, she turns to those outside the home for help. While nurses are assisting other residents, Payne said she texts a group message to loved ones, who in turn call the nursing home in order to get someone to assist her.
A new federal staffing minimum rule from the Centers for Medicare and Medicaid Services (CMS) was designed to help those stranded without care like Payne. In May, CMS officially published the final rule of the first-ever federal minimum staffing standards for long-term care facilities.
With the aim to “significantly reduce the risk of residents receiving unsafe and low-quality care,” the total nurse staffing standard will be 3.48 hours per resident day, meaning the total number of hours worked by each type of staff divided by the total number of residents. In addition, homes must meet at least .55 hours per resident day of direct registered nurse (RN) care and 2.45 hours per resident day of direct nurse aide care.
But just 108 of the 670 Illinois nursing homes that provided the agency data meet all three of these requirements as of June, according to a WTTW News analysis of homes that submitted their staffing data to CMS. Eleven additional homes did not provide data.
- 60% of the reporting nursing homes do not meet the total nurse staffing standard.
- 41% do not meet the RN standard.
- 81% do not meet the nursing aide standard.
CMS engages in a survey process to inspect and review whether a home has come into compliance with these requirements.
If a home does not meet these requirements, there is a set of escalating penalties, like corrective plans of action or fines. Termination from the CMS program is the “enforcement item of last resort,” according to Health and Human Services (HHS) officials.
When presented with the low number of homes meeting the new CMS rules, the Illinois Department of Public Health, which regulates long-term care facilities, said the state already has staffing requirements. Illinois requires a minimum staffing ratio of 3.8 hours per resident per day needing skilled care and 2.5 hours per day for residents needing immediate care. However, repercussions for Illinois homes not meeting these requirements have been delayed until 2025.
The federal rule is long overdue for Charlene Harrington, professor emeritus at the University of California, San Francisco, who specializes in long-term care research. She and others in the field have been pushing for decades for a minimum staffing standard, but she said this new rule is not strong enough.
“It’s all about staffing,” Harrington said. “If you don’t have adequate staffing, you just can’t do the job.”
While it’s “good that they’re looking into it,” Payne said, the staffing hour to patient ratios should be higher. She’ll need about three hours of assistance with showering/bathing, eating, cleaning or wound care. On top of that, she’ll need a nurse to assist with tasks like making a cup of tea or adjusting her phone.
“The eight hours that I had on any given day with an at-home health person generally wasn’t enough to get everything done that I needed done,” Payne said.
Plus, Payne said the majority of staff that works with her are licensed practical nurses — who do not have ratio carve-outs in this rule.
The new federal policies are informed by 46,000 public comments, including input from nursing home residents, workers, families and experts from the industry, according to senior HHS officials.
Phasing in the Rules
This rule, and others around staffing, will be implemented in a phased approach.
Phase 1 states that by Aug. 8, facilities must meet the requirements for facility assessments, which are conducted annually and as necessary to determine which resources are needed for resident care. CMS said these requirements are “strengthening” already existing assessments, stating facilities must include the input of nursing home leadership and consider input from residents, their attorneys and family members.
From there, the plan differs for non-rural and rural facilities:
- Phase 2 for non-rural facilities states that within two years of publication, facilities must meet the 3.48 hours per resident day total nurse staffing requirement. Homes also must have an RN on-site 24 hours a day, seven days a week to “help mitigate, and ultimately reduce, the likelihood of preventable safety events.” Phase 3 for non-rural facilities states that within three years of publication, facilities must meet the .55 RN and the 2.45 nursing aide hours per resident day requirements.
- For rural facilities, Phase 2 must be met within three years and Phase 3 must be met within five years.
Facilities can also apply for temporary hardship exemptions, like if the facility is making a “good faith effort” but is in an area where the nursing workforce is a minimum of 20% below the national average.
‘There’s a Health Care Crisis of Workers’
Not all of those involved in the industry think minimum staffing ratios are a productive method for improving quality of care.
Ron Nunziato is the senior director of policy and regulatory affairs for the Health Care Council of Illinois, a nursing home advocacy group. He said minimum ratios are a one-size-fits-all approach that not all homes can meet.
“The other kind of red herring in the jar here is that you’re forcing facilities to go to a certain level of staffing that they don’t have and that they can’t find,” Nunziato said. “We know there’s a health care crisis of workers in the state.”
Instead, he said, actions to improve care should be determined by the already existent surveyor system, as it’s a more “personal” approach.
The Illinois Department of Public Health employs surveyors to inspect nursing homes and compile reports on deficiencies.
However, the state has continually fallen short of its legal requirement of how many surveyors it should employ, according to an investigation from WTTW News.
Nunziato isn’t alone in his opposition. The American Health Care Association, a nonprofit representing long-term care facilities, has filed a lawsuit against HHS and CMS over the rule. The suit argues the new rule exceeds CMS’ statutory authority.
Harrington said that the staffing crisis is due in part to the industry’s inability to retain workers.
In Illinois, the average percentage of total nursing staff turnover was about 52% in June.
“They’re able to hire, but they’re not retaining people, and then they don’t really want to retain because every time you bring a new staff person in, they bring them in at the minimum wage at the bottom of the wage scale,” Harrington said. “They don’t value their workforce.”
Long-term care nurses have been some of the hardest hit by staffing struggles, said Susan Swart, executive director for the American Nurses Association of Illinois. Nurses are leaving long-term care for more “dynamic settings,” like health coaching or working with lawyers reviewing medical records, she added.
“They are choosing to go into environments where they are supported and where they can have work-life balance,” Swart said.
Nationally, 75% of nursing homes will need to hire additional staff in order to meet the new requirements, HHS estimates. The agency is launching a $75 million campaign in 2025 that includes tuition reimbursements to “really bring workers to the nursing home workforce,” according to a senior HHS official.
Barb Pritchard works alongside Payne at the Institutional Rescue and Recovery Coalition, an advocacy group for those in long-term care facilities.
Pritchard has worked with people in nursing homes and finds that while staff ratios are important, it’s about the nurses’ knowledge of the job.
“It’s not just putting a worker in a place, it’s looking at their ability, their competency, their knowledge of who they’re working with,” Pritchard said.
