office workers
(Credit: Yossakorn Kaewwannarat / Getty Images)
office workers
(Credit: Yossakorn Kaewwannarat / Getty Images)

A federal nursing home staffing mandate will siphon workers from assisted living and other long-term care settings, in the long run limiting access to care and services, according to senior living experts reacting to Monday’s issuance of the finalized rule.

A White House statement on the rule, which directly applies only to Medicare- and Medicaid-certified skilled nursing facilities, indicated that nursing homes will be required to deliver 3.48 hours of daily direct care per patient/resident. The rule also preserves a requirement proposed in the fall that facilities have a registered nurse on site at all hours. The unveiling of the 329-page final rule on Monday afternoon, however, revealed the Centers for Medicare & Medicaid Services would exempt nursing homes from having RN coverage for up to eight out of 24 hours a day “under certain circumstances.”

The new requirements “appropriately prioritizes quality and safety of care gains from establishing minimum standards for nurse staffing,” CMS said.

LeadingAge President and CEO Katie Smith Sloan said the association shared the agency’s goal of ensuring quality care.

“For the first time in decades, our federal government is committed to meaningful action to ensure America’s older adults and families can receive critically needed quality care wherever they live, whether in nursing homes or in their homes and communities,” she said in a statement. “LeadingAge and our nonprofit, mission-driven aging services providers, who serve older adults living in nursing homes as well those who live independently — in their own homes, assisted living and federally supported housing — share the administration’s goal.“

The association, however, has concerns, primarily because workers are needed across the continuum, she said.

“Two major issues — the lack of qualified candidates and the cost of recruiting and training staff — mean that implementation of the nursing home final rule will likely limit older adults and families’ access to care and services,” Sloan said.

The American Seniors Housing Association said that everyone, including CMS officials, knows that a severe workforce shortage exists across the long-term care continuum.

“A federal mandate to hire more workers will not create more workers,” ASHA Vice President of Government Affairs Jeanne McGlynn Delgado told McKnight’s Senior Living. “And without additional funding to subsidize this new requirement, it sets up the system for failure.”

Providers still are working to recover from COVID-19 losses, including the loss of workers who retired, joined other professions or simply left the workforce. The industry, she added, is stepping up in terms of wage increases, flexibility and benefits and should be allowed to fully recover before mandates that cannot be met in today’s undersupplied environment are imposed.

Delgado, Sloan and others at industry associations previously had pointed out that a staffing mandate for one part of the continuum would affect other types of providers, because all providers are recruiting from the same pool of workers.

Similarly, National Center for Assisted Living Executive Director LaShuan Bethea previously said that the nursing home staffing mandate would leave assisted living communities at risk of losing staff members.

“Many assisted living providers continue to deal with staffing shortages while others have nearly rebuilt their workforce back to pre-pandemic staffing levels,” Bethea stated. “No matter where an assisted living community sits on this continuum, a federal minimum staffing mandate threatens to take away the essential staff on which these communities depend to provide high quality care for hundreds of thousands of residents.”

LeadingAge, ASHA, NCAL and Argentum were part of a coalition of senior living industry stakeholders — also including AMDA–The Society for Post-Acute and Long-Term Care Medicine, the American Assisted Living Nurses Association, the Association of Jewish Aging Services and Lutheran Services in America — submiting public comments last fall about how the proposed rule would have “potentially devastating impact” on the long-term care industry.

An Argentum white paper released last month reiterated a need to create more than 3 million new jobs in senior living by 2040 to care for the rapidly aging US population.

The future of the minimum staffing rule remains to be seen.

“This fight is not over,” American Health Care Association / NCAL Presiden and CEO Mark Parkinson said Monday.

Active bills in both houses of Congress could block the staffing rule, and at least one provider group has said it could sue to thwart adoption should the final rule be unworkable.