P&C the October 2023 issue

Biden’s Plan for Increased Staffing and Enforcement

Minimum staffing regulations coming this year.
By Russ Banham Posted on September 27, 2023

Few jobs are as physically, emotionally and mentally challenging as a certified nursing assistant (CNA). Under the supervision of a registered nurse (RN), CNAs help nursing home residents with their healthcare needs, often bathing, dressing, feeding, walking and helping them rise from bed and use the bathroom.

The reason for the burdensome workload is turnover. The most recent statistics, compiled by LeadingAge, a trade association of nonprofit nursing homes, indicate CNA turnover in 2021 was 51.4%, compared to a 38.7% national turnover rate for all employees in this era of the Great Resignation. Aside from the demanding aspects of the job, the position pays an hourly rate of $15.23, resulting in a revolving door of employment.

Figures compiled by the American Health Care Association (AHCA), a nonprofit group representing more than 14,000 nursing homes and other long-term care facilities, suggest that only 3% of the facilities are fully staffed and more than eight in 10 confront moderate to high levels of staff shortages. Across the country, 45% of nursing homes say their workforce situation has gotten worse since mid-2022. The association cites federal data indicating that employment in the industry fell from 1.58 million during the pandemic to 1.34 million in January 2022.

Biden’s Action Plan for Protecting Seniors would require federal minimum staffing levels at nursing homes, although the minimums remained a work in progress at press time. Certainly, minimum staffing levels require better work conditions, pay and benefits to encourage people to become a CNA. A 2001 report by the Centers for Medicare & Medicaid Services (CMS) recommended a one-CNA-to-one-resident ratio, which equates to delivering about 4.1 hours of care to each resident daily. Most nursing homes fail to come close. A 2021 report by the U.S. Government Accountability Office found that in 2019 only one third of nursing homes provided at least 4.1 hours of care per resident 80% of the days.

Although the AHCA agrees with resident care advocacy groups that staffing is the number-one problem facing the industry, the lobbying group does not believe minimum staffing regulations are the solution. According to an AHCA press release, 94% of nursing homes would be unable to comply with a rule requiring them to provide 4.1 hours of care per resident staff. Enforcing the rule would reduce the resident population at facilities by more than a third, resulting in fewer long-term care options.

LeadingAge shares this opinion. Both trade groups assert that the only way to accommodate a staffing mandate close to the one-CNA-to-one-resident ratio is to increase Medicare and Medicaid reimbursement rates, in turn requiring more taxpayer funds supporting CMS. “We need to fully fund Medicaid so nursing home providers can compete for workers and enhance their services and infrastructure [and] programs that will incentivize the next generation of healthcare workers to choose a career in long-term care, such as tuition reimbursement and loan forgiveness,” says Mark Parkinson, the AHCA’s president and CEO.

Randall Fearnow, a partner specializing in health law at law firm Quarles & Brady, says he wonders where the money will come from. “I’m generally supportive of Joe [Biden], but this seems like a classic unfunded mandate,” Fearnow says. “It would require a massive influx in immigration to meet the labor demand. Politically, it isn’t going to fly.”

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