Most NH nursing homes won’t meet new federal staffing rule and doubt they can

A new analysis from one of the country’s leading health policy research organizations confirms what the state’s long-term health care providers have warned: The state’s nursing homes don’t have nearly enough staff to meet the Biden administration’s new staffing rule.

According to KFF’s analysis released last week, just 26 percent of New Hampshire’s long-term care nursing facilities, 19 of 73, could meet a new rule from the Centers for Medicare and Medicaid Services with current staffing. KFF noted that CMS has estimated that closing the staffing gap will be costly for the country’s nursing homes: $43 billion in the 10 years after the final rule takes effect.

“It’s just impossible, especially in a rural state like New Hampshire,” said Brendan Williams, president and CEO of the New Hampshire Health Care Association. “You just can’t find those people. You can’t find the licensed nursing assistants. You can’t find the registered nurses.”

Patients and their families have told CMS they support the rule as a means to improve patient care. A Milford clergyperson was among those who submitted nearly 50,000 comments on the rule after it was first proposed in 2023.

“I have witnessed first hand the difficult conditions in various nursing homes due to inadequate staffing levels,” wrote the Rev. Hays Junkin. “This is tragic; our seniors and those who care for them deserve a safe and well staffed residence. I urge you to push for adequate staffing and ignore the nursing home industry’s opposition.”

The Centers for Medicare and Medicaid Services’ current staffing rule requires 24-hour clinical staffing and sets standards for patient care but leaves facilities discretion on staffing specifics. For example, in most cases a facility must employ a registered nurse for at least eight consecutive hours a day, 7 days a week.

The new rule, which is set to take effect in 2026 for urban facilities and 2027 in rural sites, requires a nurse to be on duty 24 hours a day, seven days a week. Each patient must receive 33 minutes of care a day from a registered nurse and 147 minutes of care from a nurse aide. Facilities could request “hardship” exemptions if they met several requirements.

The KFF analysis found that New Hampshire is closest to meeting the registered nurse staffing requirement with 79 percent of facilities able to provide each patient 33 minutes of care from a registered nurse each day. Only 30 percent of facilities meet the requirement for nurses’ aides, it found.

Williams said CMS’s new “one-size-fits-all” staffing rule ignores New Hampshire’s “hellscape of a workforce crisis” and the scarcity of affordable housing and child care that makes recruiting new workers difficult. Added to that, the state’s unemployment rate is low, and Medicaid reimbursement rates fail to cover the cost of providing care, he said.

Nursing facilities across the state are already limiting admissions because they don’t have the staff to fill all their beds. Williams said meeting the new staffing rule will leave long-term care facilities with no good options. The state and counties would have to increase taxes. Private facilities would have to charge more. Or, facilities will close.

The rule’s critics include U.S. Rep. Chris Pappas, who joined a number of other members of Congress in voicing concerns to CMS twice in 2023, before the rule was finalized, about the impact to nursing facilities.

“We believe the rule as proposed is overly burdensome and will result in additional closures and decreased access to care,” he wrote. It continued: “We recognize CMS as a crucial partner in identifying, mitigating, and preventing future health and safety problems in nursing homes. We stand ready to work with your agency on proposals to improve long-term care for patients.”

In an email last week, Pappas said he continues to have concerns and is disappointed CMS did not incorporate the feedback he passed on from worried health care providers in New Hampshire.

“I have the utmost faith and confidence in the health care workers of New Hampshire who do incredible work to keep our communities healthy, and I remain committed to supporting access to high quality care for individuals residing in nursing home facilities,” Pappas said.

He added: “Without additional support from Congress and CMS for our long-term care facilities and seniors, these new regulations have the potential to seriously impact a long-term care system already under tremendous strain. We must provide long-term care facilities with the resources and funding to stay open, recruit and retain a strong workforce, and provide residents with the best care possible.”

Gov. Chris Sununu has raised concerns, too, and joined 14 other governors in 2023 in calling on the Biden administration to abandon the rule.

Sens. Jeanne Shaheen and Maggie Hassan were two of three Democrats to join nearly 20 Republicans and independents that year in urging CMS to pause and rethink the rule.

A spokesperson for Hassan’s office said she and Shaheen are evaluating changes to the rule CMS has made since first introducing it.

Those include a phased-in approach to give facilities more time to complete initial staffing assessments; a new exemption for facilities that would not be able to fulfill the registered nurse requirement; and clarification that physician assistants, physicians, and other supervisory clinical staff can play a role in fulfilling staffing requirements.

A message to U.S. Rep. Annie Kuster’s office was not returned.

The Bulletin could not reach the state’s long-term care ombudsman. Jake Leon, spokesperson for the Department of Health and Human Services, said the agency has not heard much from the public about the new rule. He said the department’s Bureau of Health Facilities will monitor facilities for compliance once the rule is in place.