The Honorable Xavier Becerra
U.S. Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, DC 20201

The Honorable Chiquita Brooks-LaSure
Centers for Medicare and Medicaid Services
U.S. Department of Health and Human Services
200 Independence Avenue, S.W.
Washington, DC 20201

Dear Secretary Becerra and Administrator Brooks-LaSure:

The National Committee to Preserve Social Security and Medicare is pleased to submit comments on the Notice of Proposed Rulemaking (NPRM), “Medicare and Medicaid Programs; Minimum Staffing Standards for Long Term Care Facilities and Medicaid Institutional Payment Transparency Reporting.” [CMS-3442-P; RIN 0938-AV25], 88 Fed. Reg. 61352 (September 6, 2023).

We are gratified that the agency is poised to take bold action in setting national standards that must be designed to keep all residents safe, based on decades of expert clinical study and real-world evidence. The grim toll wrought by Covid-19 on residents and care staff working in nursing homes, together with multiple ongoing investigations and enforcement actions targeting negligence and substandard care, repeatedly point to the role of understaffing in exacerbating resident morbidity and in contributing to premature mortality.  Looking across the nursing home sector during Covid-19, a stark 2023 review published in May in the Journal of the American Medical Directors Association ( concludes that “self-reported staffing shortages were associated with a statistically significant decrease in staffing hours and with a statistically significant increase in resident deaths. These results suggest that addressing staffing shortages in nursing homes can save lives.” [emphasis added].

Although based on relatively recent data, this review’s findings echo those in many previous studies – and, unfortunately, events that continue today. A series of current court cases, ongoing investigative media accounts, and reports from official government sources continue to identify shocking quality problems in resident safety, and failure to deliver even the most basic services in nursing homes that are reimbursed by Medicare and Medicaid. To cite one example, the owners and operators of Centers for Care LLC in New York, sued in June 2023 by the State Attorney General Letitia James, are alleged to have been using Medicaid and Medicare funds for personal enrichment instead of resident care. As filed, the complaint specifically alleges that understaffing contributed to serious resident neglect and harm.  A press release accompanying the case states: “Residents at these facilities were forced to sit for hours in their own urine and feces, suffered from severe dehydration, malnutrition, and increased risk of death, developed infections and sepsis from untreated bed sores and inconsistent wound care, sustained life-changing injuries from falls, and died.”

Other ways that serious distortions in care practices — and violations of residents’ legal rights – can and do occur in understaffed facilities, were revealed in a November 2023 report from the HHS Office of the Inspector General. The medical records analysis found that “from 2011 through 2019, about 80 percent of Medicare’s long-stay nursing home residents were prescribed a psychotropic drug. While CMS focused its efforts on reducing the use of one category of psychotropic drug — antipsychotics — the use of another category of psychotropic drug — anticonvulsants — increased. This increased use of anticonvulsants contributed to the overall use of psychotropics remaining constant. In 2019, higher use of psychotropic drugs was associated with nursing homes that have certain characteristics. Nursing homes with lower ratios of registered nurse staff to residents were associated with higher use of psychotropic drugs [emphasis added]. Nursing homes with higher percentages of residents with low-income subsidies were also associated with higher use of psychotropic drugs.

Addressing issues of systemic resident harm requires HHS and CMS to put the safety, quality of care and quality of life of residents first and foremost in promulgation of evidence-informed national staffing standards. Waivers and exemptions will not prevent harm, but instead will likely serve to invite noncompliance; to dilute the impact of national standards that should ensure safe staffing in every home reimbursed by Medicare and Medicaid; and to undermine enforcement by federal officials within HHS, the Department of Justice, and by state prosecutors and attorneys in the private bar.

The backdrop for both the staffing regulations and the ownership and transparency proposed regulations for identifying additional disclosable parties issued in February 2023 is a longstanding, entrenched pattern of inconsistent and inadequate care in too many nursing homes — what researchers and analysts sometimes refer to as “omitted” and “delayed” care that frequently causes serious harm to frail elders and younger vulnerable adults. The National Committee is grateful for President Biden’s White House directives issued in February 2022 that prominently mentioned the need for strong staffing standards []. Those administrative directives were propelled in part by efforts launched by experts, advocates and researchers, and aimed at focusing national attention on how to substantially improve safety and quality across the nursing home sector. These efforts were subsequently buttressed by findings published in April 2022 by the National Academies of Sciences, Engineering, and Medicine (NASEM) in a comprehensive report, “The National Imperative to Improve Nursing Home Quality” [].

To strengthen the NPRM on nursing home staffing, the National Committee offers the following recommendations for consideration:

First, we recommend that CMS analyze and publish Payroll Based Journal-reported staffing each quarter, displaying the results on Nursing Home Compare separately from the “star rating system,” and making it transparently clear how each facility’s staffing levels compare with national staffing requirements. State surveyors, whose visits to nursing homes occur only every 12-15 months, are not positioned to conduct, or to publish, this type of comparison. Equally important, families and residents across the country must be fully informed — in plain language and easy-to-understand numerical formats — what the actual staffing levels in their facility are.

Second, we recommend that staffing data be assessed by HHS and CMS in conjunction with other measures of health, safety and accountability, namely:

  • Facility performance on key metrics drawn from survey and certification data.
  • Facility cost report information. (Note: A requirement for Skilled Nursing Facilities (SNFs) to file detailed cost reports was enacted in Sec. 6104 of the ACA, which requires reporting of expenditures for direct care, indirect care, capital costs and administrative costs; however, guidance for this reporting needs to be improved so that Medicare spending can be distinguished from other payers, i.e., Medicaid. In general, analyses that provide an accurate picture of how taxpayer monies are spent, which includes residents’ Social Security checks, are doable.)
  • Facility-reported data on ownership, and on financial partners, a.k.a. related parties/additional disclosable parties. (Note: These data should be readily available soon under a final rule promulgated under the authority of Sec. 6101 of the ACA).

Third, in a whole-of-government approach similar to that established for the Elder Justice Coordinating Council, we recommend that federal actions arising from the cross-cutting analyses described above should be overseen by an Interagency Council comprised of representatives from the HHS CMS, OIG, the Health Resources and Services Administration (HRSA), Administration for Community Living (ACL) , Centers for Disease Control and Prevention (CDC), Department of Justice (DOJ) and other agencies as necessary.

Fourth, we recommend that CMS expand on the NPRM’s excellent Facility Assessment section to encourage Certified Nursing Assistants (CNAs), together with other key care practitioners who together form the nucleus of an interdisciplinary team – nurses, medical directors and social workers – to create a care budget (or resources estimate) that takes resident acuity information into account, and that can then inform the facility’s wider “strategy and resource allocation decisions.”

Fifth, to try to prevent further closures in the nonprofit sector, we urge HHS and CMS to pay closer attention – and encourage states to do the same – to supporting mission-driven owners to stay in the business. State incentives in the form of higher Medicaid reimbursement rates work well, as demonstrated in a State Plan Amendment submitted by Arkansas in 2009 and swiftly approved by CMS, which provides a slightly higher rate for operators running small houses. We also recommend that HHS and CMS work quite closely with the Department of Housing and Urban Development on revising guidance to re-direct funding in the 232 program that is now going to prop up outdated institutional buildings to instead be used for new construction and renovations that create private rooms and private bathrooms for every resident, together with attractive shared living spaces (including kitchens) and ready access to the wider community.

Today, many nonprofit nursing homes are vulnerable economically. Yet, for-profit investors are willing to purchase them because they have been able to count on cutting labor costs, supply costs and operational costs in order to make a profit even in low-Medicaid reimbursement environments. These trends do not augur well for improving working conditions, and mitigate against prospects for a much-needed expansion of care staff.  A survey released last April by the National Association of Health Care Assistants found nurse aides are too often required to provide services to many more residents than they can realistically serve in a person-centered manner. Including nearly 3,000 members, the survey identified staffing shortages and low pay as the top challenges facing CNAs.

For nursing homes that operate with a large Medicaid census in low-reimbursement environments, we recommend that the Government Accountability Office (GAO) be tasked with regularly examining what the cost of care is and what the Medicaid reimbursement for nursing homes is by state – and steps that states may wish to consider.  For facilities operating with Medicare SNF dollars, the Medicaid payment picture would need to be balanced with Medicare payments.

Regarding the workforce, the much-discussed nursing home shortage of workers cannot be solved by national staffing standards. Meaningfully mitigating workforce shortages entails implementing a multi-pronged strategic initiative, starting with revamped and updated baseline training for CNAs that is grounded in core competencies. This would need to be accompanied by a clear career path forward to encourage retention and commitment, higher wages and benefits, and better working conditions that do not require aides to try to care for 15-30 residents in a given shift.

More specifically, rethinking the entire direct care workforce — CNAs, home health aides and personal caregivers – involves breaking down program and setting silos, and establishing a National Standard for Direct Care Competencies across settings that:

  • Addresses defined core competencies for all direct care workers, regardless of location, payment source, or setting.
  • Makes standardized training presented by subject matter experts universally available to learners by leveraging online learning access across all states.
  • Facilitates recognition and easy transferability across state lines, eliminates steep financial burdens for caregivers seeking employment in different settings, and expedites hiring into new positions when direct care workers relocate.
  • Organize and utilize specially trained nursing assistants to be able to provide some of the in-person clinical training in core skills — thereby reducing employment barriers due to a lack of available, qualified training nurses, while also offering an avenue for career advancement among professional nursing assistants.

We are pleased to associate ourselves with comments submitted by Consumer Voice, and “Dear Colleague” letters on the staffing NPRM that are being circulated by Senator Bob Casey and by Representatives Lloyd Doggett and Jan Schakowsky. Absent setting robust standards for safe staffing at the level recommended in CMS’ prior time-motion study published in 2001 and in subsequent similar analyses, the National Committee is gravely concerned that well-established patterns of chronic understaffing will continue in many nursing homes. Such homes should not continue to receive reimbursement and a “free pass” from federal officials who are charged with ensuring that every beneficiary receives safe care. Rather, nursing homes should be held accountable at a national level for providing good care, every day, to every resident, in every state in the county.

In summary, the National Committee urges HHS and CMS to heed decades of strong evidence on what constitutes safe staffing in nursing homes. Setting robust standards will encourage those who are most motivated to provide consistently good care to invest in the sector. In contrast, allowing current trends of poor performance that are often driven by understaffing to continue, will likely accelerate trends that drive low quality, market consolidation and a sharp tilt toward for-profits.

Thank you for the opportunity to comment. We hope these observations and arguments are useful in the agency’s thinking.


Max Richtman
President and CEO