In time to avoid a Congressional Review Act revocation, The White House issued the long-anticipated and hotly debated minimum nurse staffing rule yesterday. The mandatory minimum was finalized at 3.48 - 0.48 hours more than proposed. However, the final rule established only two minimums, at least 0.55 hours of staffing by a registered nurse and 2.48 hours of nursing care provided by nursing aides. The balance of the time 0.45 hours can be filled with care from other credential types like LPNs.
A report completed in June 2023 by Abt Associates had concluded that 3.48 hours was "medium" option in four scenarios it examined. It concluded that about 55% of nursing facilities will not be able to meet the new standard. We have looked at most of ENSG's homes and reported hours and it appears they come close with 0.51 average hours of RN care, 2.06 hours of nursing aid care, 0.96 hours of LPN. Not too far off and probably more evidence of their careful management in what has to be the toughest corner of health care.
The rule also mandates that a registered nurse be on site 24/7. We consider this requirement to be the most onerous because registered nurses are not created overnight. Acknowledging that, CMS is creating a hardship waiver process for nursing homes that cannot meet the 24/7 requirement as well as the minimum hours rule.
Even with certain phase-ins and waivers, it will take a good bit of time of all of America's nursing facilities to come into compliance. It may never happen. This morning Sen. John Tester of Montana declared that he had serious concerns about the "one-size-fits-all approach." Both houses have at the ready override bills which they can pass in lame duck and they may just be successful.
As we have pointed out, most states have their own requirements and are largely responsible for compliance so a federal standard will be at best, redundant, and at worst unenforceable due to local labor market dynamics. The point though is probably mostly a political one. Organized labor is one of the most reliable core constituencies of the White House and the expansion of the nursing home work force would please the base.
The path to November is a rough one so every move counts in the game of survival politics.
Emily Evans
Managing Director – Health Policy
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