New federal staffing standards meant to improve the care of millions of Americans in nursing homes could go into effect in as soon as two years.

New Mexico’s nursing homes aren’t ready. Not even close. 

The Biden rule, according to a White House fact sheet, represents a “minimum federal floor for safe levels of nursing home staffing.” 

Yet only two of New Mexico’s 68 nursing homes would have met that minimum staffing standard for both registered nurses (RNs) and certified nursing assistants throughout April, May and June of this year, according to a New Mexico In Depth analysis of the most recent available payroll data: the state-run Fort Bayard Medical Center in Santa Clara and the state veterans home. Eight facilities hit the proposed minimum on more than half of the days during the three-month period while 34 had enough nursing staff on just five or fewer days. Twenty of the 34, all for-profit homes, didn’t meet the requirements once. 

Only four other states — Texas, Oklahoma, Indiana, and Missouri — had fewer hours of nursing care per resident, on average, than New Mexico, the analysis found.  

Nursing homes offer a range of services: medical care, pain management, pharmacy, wound care, social services, and physical, speech and occupational rehabilitation. Today, New Mexico’s nursing homes care for nearly 5,200 people but demand is likely to grow in coming years. New Mexico’s significant over-65 population, which constitutes one in five New Mexicans, is projected to grow by more than 80,000 individuals between 2020 and 2040. 

Poor staffing can create gaps and delays in care and leave residents at higher risk of neglect, medical complications and death, studies have shown. New Mexico ranks second in the nation for the highest proportion of nursing homes cited for serious deficiencies – lapses in care causing immediate jeopardy or actual harm to a resident, up to death, according to one national database. Ninety percent of nursing homes here have been cited for infection-control deficiencies since 2018.  

The U.S. Centers for Medicare & Medicaid Services (CMS, the federal agency that pays for much of nursing home costs) encourages nursing home inspectors to scrutinize staffing levels when they find certain serious deficiencies. Bed sores, for example, can be a sign of inadequate staff, training or supervision, as can resident falls or the medically unnecessary use of drugs to sedate residents. Since 2020, New Mexico inspectors have reported more than 100 cases of bed sores and cited medically unnecessary medication at least nine times, according to a search of ProPublica’s Nursing Home Inspect database. The same search found 33 citations for insufficient nursing staff. 

“We’re short staffed like all facilities,” a nurse is quoted as saying in a May 2022 inspection report about Taos Healthcare. “It’s frustrating, to be honest. The schedule looks good on paper, but not in real life. I work three nights a week and this happens at least once [a week]. Everywhere you go is short staffed.” 

In the same report, a resident described the indignity that can come with short staffing.

“Some nights the call lights don’t work, the staff will help you to the bathroom, leave, they go help other residents and you sit on the toilet for forty five minutes,” the resident told the inspector. “There is just not enough staff.”

The inspector cited the facility for not providing “nursing staff every day to meet the needs of every resident.” The facility was cited also for staff making too many medication errors. 

Sometimes, inspectors mention understaffing when describing other problems, like failures to complete patient paperwork or to monitor patients for medication side effects, without citing the facilities for inadequate staffing.

That’s concerning, said Richard Mollot, executive director of the Long Term Care Community Coalition (LTCCC), a New York-based patient advocacy group. “Sufficient nursing staff is the most important factor impacting resident safety and dignity.” 

New Mexico’s state health department’s minimum staffing rule requires enough nurses and nurse aides to provide on average 2.5 hours of care per patient, per day. Eleven nursing homes failed to meet that standard, but most did. 

But meeting the state’s 2.5 hour rule is no guarantee of adequate staffing, cautioned one patient advocate.

“I mean, 2.5 hours per resident day is really licensing or mandating poor care,” said Sam Brooks, director of public policy at The National Consumer Voice for Quality Long Term Care, an advocacy group based in Washington, D.C. “At 2.5 hours, you’re looking at just extremely high rates of omitted and delayed care.”

The proposed federal rule would require three hours of direct nursing care per patient each day. Those hours are broken down, with requirements of 0.55 hours of care from a registered nurse and 2.45 hours a day of care from a certified nursing assistant. The public comment period ended Nov. 6; CMS will now finalize the rule in light of comments received. The rule would also strengthen CMS guidelines for surveyors’ monitoring of understaffing. 

Advocates say proposed rule doesn’t go far enough

As baby boomers enter nursing home care in increasing numbers, staffing and patient safety at nursing facilities have become an increasingly urgent concern for millions of aging Americans and their loved ones. That’s particularly true in New Mexico, which is tied with Pennsylvania for the 12th highest proportion of people aged 65 to 84 in the nation, according to the U.S. Census Bureau. The state’s number of senior citizens is growing faster than the national average.

Biden promised in his 2022 State of the Union address to “set higher standards for nursing homes and make sure your loved ones get the care they deserve.” 

But patient advocates say his administration’s staffing rule falls well short of that goal. 

“We’ve been waiting for 20 years for CMS to set a minimum nurse staffing standard,” said Charlene Harrington, professor emeritus at the University of California San Francisco’s School of Nursing, and a nationally recognized expert on nursing home staffing and patient safety. “So we were excited when the president announced that CMS was going to set a standard. But these proposed regulations are shockingly low.”

The Biden rule ups the requirement for a registered nurse to be on site, from eight to 24 hours a day, every day of the week, Harrington acknowledged. 

“This is something we’ve asked for years,” Harrington said. “But the proposal overall is to set a standard for three hours of total nursing per resident per day instead of the 4.1 nursing hours that was recommended by a CMS study in 2001.”

CMS never formally adopted that 2001 recommendation as a requirement; instead it required facilities to hire “adequate” staff for their patients’ mix of individual needs. Harrington and advocates like Mollot argue for an even higher standard, citing the increased complexity of patients’ medical conditions and medication regimens compared to 2001.

On average, only 13% of New Mexico nursing homes met the 4.1 hour recommendation during the second 90 days of 2023, separate analyses of payroll data by the LTCCC and New Mexico In Depth showed. Nursing homes in neighboring states, except for Texas, at 10.7%, do much better than New Mexico, but the picture is still discouraging: only 43% of Utah nursing homes, 34.5% of Arizona’s, 28% of Colorado’s and 23% of Oklahoma homes met or exceeded the 4.1 hours recommendation.

Trade group says proposed rule may be unrealistic 

If the Biden rule is finalized, nursing homes will have from two to five years – depending on where they are located – to staff up in the different categories. 

Those years would be crucial given a nationwide shortage of nurses.

In July, New Mexico was short almost 7,000 nurses, according to published job announcements around the state. That shortage, as with most medical professionals, is more acute in rural areas, where roughly a third of New Mexicans live. 

Patient advocates are concerned that CMS will exempt rural and other nursing homes from the new rule. 

But Vicente Vargas, executive director of the New Mexico Center for Assisted Living, a group representing all but two of the state’s nursing homes, believes the exemptions contained in the proposed rule need to go even further. Vargas would like to see waivers for some urban nursing homes, because they also struggle to retain staff, facing competition from nearby hospitals, which pay better. Without those more generous exemptions – or higher payment rates from Medicaid, the government health insurance program – the Biden rule won’t be feasible in New Mexico, he said.

“In some urban areas with a lot of facilities, they don’t have the workforce [because it is] diluted with a bunch of nursing facilities and assisted living facilities that you may be competing against,” Vargas said.

In a letter sent to CMS on Nov. 6, the final day of the Biden staffing rule’s public comment period, Vargas urged the government to increase Medicaid funding for nursing homes and to keep the existing rule that RNs be on-site eight hours a day instead of the proposed 24/7 requirement.