Rejecting the mandate would leave thousands of residents in homes too short-staffed to provide proper care.
COVID's rampage through the country's nursing homes killed more than 172,000 residents and spurred the biggest industry reform in decades: a mandate that homes employ a minimum number of nurses.
But with President-elect Donald Trump's return to the White House, the industry is ramping up pressure to kill that requirement before it takes effect, leaving thousands of residents in homes too short-staffed to provide proper care.
The nursing home industry has been marshaling opposition for months among congressional Republicans -- and some Democrats -- to overrule the Biden administration's mandate. Two industry groups, the American Health Care Association and LeadingAge, have sued to overturn the regulation, and 20 Republican state attorneys general have filed their own challenge.
Consumer advocates, industry officials and independent researchers agree that the incoming administration is likely to rescind the rule, given the first Trump administration's "patients over paperwork" campaign to remove "unnecessary, obsolete, or excessively burdensome health regulations on hospitals and other healthcare providers." Among other things, Trump aided the industry by easing fines against homes that had been cited for poor care.
"The Trump administration has proven itself really eager to reverse overreaching regulations," said Linda Couch, senior vice president for policy and advocacy at LeadingAge, which represents nonprofit elder care providers. "We think it's got a pretty good chance of being repealed, and hope so."
Issued in April, the staffing regulation requires nursing homes to have registered nurses on-site around the clock -- something that the industry has endorsed -- and to maintain minimum numbers of nurses and aides. Four in 5 homes would have to increase staffing. The requirements would be phased in, starting in May 2026.
Even before the election, many experts and activists had doubts that the rule would be effectively enforced, given the poor results in states that have imposed their own minimums. In New York, California, Rhode Island, and Massachusetts -- states with the most robust requirements -- many homes remain below the legal staffing levels. Governors have given many homes reprieves, and other homes have found that paying penalties costs less than the increase in payroll for additional staff.
The federal government estimates the average annual cost over a decade to meet the Biden mandate would be $4.3 billion a year, a 2% increase in expenses, though the changes do not include increases in federal Medicare or Medicaid payments.
"Staffing is everything in terms of nursing-home quality," said R. Tamara Konetzka, a professor of public health sciences at the University of Chicago.
While the rule's effectiveness was uncertain, she worried that repealing it would send the wrong message. "We would be losing that signal that nursing homes should try really hard to improve their staffing," she said.
Advocate groups for nursing home residents, who had criticized the Biden administration rule for not requiring even higher staffing levels, have since pivoted and are trying to protect it.
"We're hoping the president-elect will come in and take a look at the science and data behind it and see this really is a modest reform," said Sam Brooks, the director for public policy for the National Consumer Voice for Quality Long-Term Care, a Washington, D.C.-based nonprofit. "We'd be devastated to see it fall."
The Trump transition team did not respond to a request for comment. The Department of Health and Human Services did not respond to requests for comment, but in a court filing it argued that nursing homes should be able to reach the required staffing levels.
"There is more than enough time to identify, train and hire additional staff," the Biden administration wrote.
The quality of care in the nation's 15,000 nursing homes and the lack of adequate staffing for their 1.2 million residents has been a concern for decades. Inspection reports continue to find homes leaving residents lying in their own feces, suffering severe bedsores and falls, contracting infections, choking on food while unattended, or ending up back in a hospital for preventable reasons. Some nursing homes overuse psychotropic medications to pacify residents because they do not have enough workers to attend to them.
Leslie Frane, executive vice president of the SEIU, the Service Employees International Union, which represents health care workers, said in a statement that "far too many nursing home owners will not do the right thing and invest in workers without oversight and binding regulation."
The nursing home industry says many homes cannot afford to increase their workforces, and that, even if they could, there is a scarcity of trained nurses, and not enough people willing to work as aides for an average $19 an hour. A registered nurse earns $40 an hour on average in a nursing home, less than what they could make at a hospital, according to the Bureau of Labor Statistics.
The Biden administration noted in its court filing it was planning to spend $75 million to recruit and train more workers, and that there were more than 100,000 workers who left nursing homes during the pandemic and could be lured back if salaries and working conditions were better.
How many nursing homes could afford the increased cost remains a mystery because of weaknesses in the government's requirements for financial transparency. About half of homes lose money, according to their reports to Medicare, but some nursing home owners grow rich through clandestine maneuvers to siphon profits into their own pockets.
Last month, owners of Centers Health Care, one of New York state's largest nursing home chains, agreed to pay $45 million to settle allegations by Attorney General Letitia James that they diverted $83 million intended for resident care to themselves during the pandemic.
Maryellen Mooney, a spokesperson for the Centers Health Care chain, which denied the allegations, said in a statement that Centers was "committed to fully implementing the settlement terms, including a significant investment in resident care."
About three-quarters of nursing homes are for-profit. The industry, though, highlights the most sympathetic examples: rural nonprofit nursing homes like Kimball County Manor & Assisted Living in Kimball, Nebraska. Its staffing levels for registered nurses are 40% below what the new rule would require, federal data shows.
Sarah Stull, Kimball's administrator, said recruitment had always been challenging and that temporary nursing staffing agencies charged more than double what she paid her own staff.
"We had to pay $65 for a nurse aide during COVID, and that's insane," she said.
The government estimated that about a fourth of the nation's nursing homes would be eligible to apply for hardship exemptions if there were a documented shortage of nurses and aides in their communities compared with the national average.
But Nate Schema, the chief executive of the Good Samaritan Society, which runs 133 nonprofit homes mainly in the rural Midwest, estimated that only seven would be likely to qualify for a hardship waiver.
"Philosophically, they sound great," he said. "But in practicality and how they're put together, they won't do much for us."