Editor’s note: Ed Dudensing is the founder and lead counsel for Dudensing Law, an elder abuse and neglect law firm with offices in Sacramento, San Francisco and Los Angeles.
In April, the Biden administration unveiled a set of regulations to establish minimum staffing requirements for nursing homes nationwide. Under these new guidelines, nursing facilities must maintain staffing levels of 3.48 nursing hours per patient per day, including 0.55 registered nursing hours per patient per day and 2.45 nurse assistant hours per patient per day.
The introduction of these regulations is a significant stride in the right direction. In fact, these minimum requirements should serve as a baseline, rather than a ceiling, for staffing levels in nursing homes. Each resident’s needs are unique, and staffing must be tailored to meet these individual requirements to ensure the highest quality of care.
However, senators appear to have succumbed to heavy lobbying influence aimed at reversing these new regulations. Such efforts could significantly endanger healthcare access for our most vulnerable citizens.
Recently, senators from both parties sponsored a Congressional Review Act resolution — a tool that can be used to overturn rules from federal agencies — that requires only a simple majority to pass. Some senators incorrectly argue the regulations would worsen workforce issues. In fact, these arguments underscore the need to bolster the senior care workforce, a sentiment echoed by various organizations including AARP, whose spokesperson remarked to Axios, “It would be regrettable if lawmakers proceed with attempts to derail this crucial rule.”
Nursing homes must be prepared to meet the growing needs of their patient population. According to the Census Bureau, by 2030, all baby boomers will be older than age 65, expanding the size of the older population so that one in every five residents will be of retirement age.
About 1.3 million Americans resided in nursing homes as of 2020. Ensuring adequate staffing levels in these facilities is paramount to meeting the complex needs of this growing population. In fact, a substantial body of evidence indicates that adequate staffing levels, especially of registered nurses and certified nurse aides, correlate with improved performance across various quality measures and resident outcomes.
The continuous decrease in quality of care has not gone unnoticed by the public. In 2023, a Gallup poll revealed that Americans are extremely dissatisfied with the quality of care at nursing homes, giving these facilities a “D+” grade. Seven out of 10 American adults said they “would be very or somewhat uncomfortable with being admitted to a nursing home if they could no longer care for themselves.”
Of particular importance is the provision within the amended section 483.35, which highlights that meeting numerical standards should not serve as a justification for facilities to only fulfill the minimum requirements. Rather, facilities must ensure enough staff possess the requisite competencies and skill sets to safeguard resident safety and promote their overall physical, mental and psychosocial well-being. This holistic approach to staffing reflects a commitment to person-centered care and acknowledges the diverse needs of nursing home residents.
It is imperative for advocates of elderly care — including senators — to support the implementation of these regulations, particularly regarding the issuance of hardship waivers outlined in section 483.35(h), which permit exemptions from the requirements for minimum hours of care per resident per day and the presence of a registered nurse onsite 24 hours a day, 7 days a week. Should the new regulations stay, there is a legitimate concern that some skilled nursing facility owners may seek to circumvent these minimum staffing requirements, which would compromise the quality of care provided to our vulnerable elderly population.
While establishing minimum staffing regulations in nursing homes is crucial, rigorous enforcement is equally essential.
Without it, regulations risk becoming guidelines, leaving room for noncompliance and compromising care quality. Enforcement ensures accountability, holding operators to staffing standards and prioritizing resident well-being. It fosters a culture of compliance and signals the importance of resident safety over financial concerns. Ultimately, effective enforcement complements regulation by translating policy into tangible outcomes, safeguarding the health, safety and dignity of nursing home residents.
In the face of opposition from the nursing home industry, the Biden administration has rightfully remained steadfast in its commitment to prioritize the welfare of our elderly citizens. Despite claims of financial strain from nursing home operators, it is evident that the industry attracts substantial investment from profit-driven entities such as private equity firms, venture capital funds and real estate investment trusts.
The profitability of nursing home operations persists, underscoring the necessity of ensuring adequate staffing levels to uphold the dignity and safety of our seniors. To the members of the Senate who support overturning these regulations: you must reconsider.
