Why the debate over proposed nursing home staff minimums is particularly unproductive

The Biden administration’s proposed minimum staffing standard is likely the most important nursing home reform measure in decades. If finalized, the rule would establish detailed federal nursing home staffing standards for the first time, requiring facilities to always have a registered nurse onsite and to meet explicit levels for RN and nurse aide staffing.

Following the release of the proposed rule in September, however, the administration has received intense criticism from both industry and advocacy stakeholders.

Industry stakeholders have argued the staffing requirement is an “unfunded mandate” that will lead to the closure of nursing homes. They point to thin operating margins in many facilities and to broader workforce challenges in hiring direct care staff.

Meanwhile, advocates have argued the staffing requirement is far too weak and will not protect residents. They also argue that nursing homes have plenty of money to pay for staff, they’re just hiding dollars through complex ownership structures and related party transactions.

When tackling a contentious issue, a maxim is that if you make both sides unhappy with a proposal, then you’re probably on the right track. But as researchers who study nursing home care, we’re not sure that’s the case here. Each side is working from a different set of facts, making it difficult to engage in a policy debate about how best to move forward.

Nursing home providers have been especially vocal in their opposition to the proposed rule and have enlisted lawmakers on both sides of the aisle to oppose it altogether. Lawmakers from rural markets have been most sympathetic to their concerns, highlighting the role of nursing homes in their communities and pointing to an insufficient labor supply of direct care staff.

The proposed rule explicitly acknowledges these challenges and not only provides rural facilities additional time to comply but also offers exemptions for facilities facing a tight labor market. These provisions have done little to quell opposition.

We agree the proposed rule is not perfect. (For instance, we would prefer to see a standard for all direct care staffing, not just RN and aide staffing.) But we are concerned that the naysayers will leave us with the status quo — and as we and others have argued, that is not an acceptable option. Nursing homes have been required to have “sufficient” staff to meet residents’ needs for decades, but few explicit staffing requirements extend past this general expectation. In fact, despite recurring instances of poor-quality care identified by oversight agencies and others, the frequency with which facilities have been cited for insufficient staffing is quite low. Even with its imperfections, a more robust and explicit staffing standard has the potential to compel needed change.

More than anything, nursing home care relies on having adequate staff to meet the needs of residents, including help to get dressed, bathe, and eat their meals, as well as complex medical needs. There is no way around the foundational need of having enough qualified staff to deliver high-quality care.

In the current debate about staffing, both sides are talking past one another. Industry leaders suggest the proposed rule will bankrupt large numbers of nursing homes, while advocates assert there is plenty of money to pay more staff. Government and published studies suggest mixed evidence regarding the size of nursing home profit margins. Unfortunately, we don’t know who is correct in the absence of having better financial and ownership data such that regulators can tell who owns a nursing home and how they are spending public dollars.

If they proceed, the new staffing standards would accompany the recently finalized rule on transparency in nursing home ownership and management entities, a rule targeted in part to track the role of private equity, real estate investment trusts, and other investors in the sector. Although they might seem unrelated, establishing greater ownership and financial transparency is essential to pursuing staffing and other reforms that could bring additional resources into the nursing home sector.

The Biden administration has taken steps to improve transparency in ownership, but those data have thus far been incomplete, outdated, and unreliable. The administration must also invest in processes to ensure adequate financial accountability. Currently, the Medicare cost reports are not adequate to track nursing home profitability, leaving lawmakers and others to address the issue without full information.

We were both members of a recent National Academies of Sciences, Engineering, and Medicine (NASEM) commission that made a series of recommendations to improve the quality of nursing home care. The NASEM report made two recommendations to increase the transparency and accountability of finances, operation, and ownership. First, we recommended that the Department of Health and Human Services collect, audit, and make publicly available detailed facility-level data on the finances, operations, and ownership of all nursing homes. HHS should ensure that the data allow the assessment of financial arrangements and payments, related party entities, and corporate structures. Second, we recommended that HHS ensure that accurate and comprehensive data on the finances, operations, and ownership of all nursing homes are available in a real-time, readily usable, and searchable database.

At the end of the day, everyone seems to agree we need more staff in U.S. nursing homes. Yet, implementing meaningful staffing standards is difficult in the absence of greater transparency and accountability. Do we need more public investment as nursing homes suggest, or are there already sufficient dollars in the system to be redirected to resident care as advocates contend? With better data in place, policymakers could break this stalemate and improve the care of millions of baby boomers who will receive nursing home care in the coming years.

David C. Grabowski, Ph.D., is a professor in the Department of Health Care Policy at Harvard Medical School. David G. Stevenson, Ph.D., is a professor and the chair of the Department of Health Policy at Vanderbilt University School of Medicine.