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December 28, 2022

The Nursing Shortage Part 1

A National Crisis and What It Means

By Karla J. Mayorga Hamilton


Nursing is the largest healthcare profession in the United States, with 4.2 million active registered nurse (RN) licenses and 944,813 active licenses for licensed practical nurses (LPN). Nurses are omnipresent within hospitals, offering around-the-clock care and guiding individuals through their most vulnerable moments from birth to death. Outside of the hospital, nurses often work behind the scenes but remain present in virtually all aspects of everyday life. Despite all this, the nursing workforce has been experiencing its longest shortage in U.S. history. And when many factors driving the existing nursing shortage collided with the COVID-19 pandemic, concern for the future of the nursing workforce began to garner increased national attention.

Currently, the demand for nurses has outpaced the available and projected supply of nurses. Failure to alleviate the nursing shortage threatens to render the American people vulnerable and without access to medical care. This seemingly impossible scenario has already started to play out in various parts of the country, where hospitals have had to temporarily or permanently discontinue services due to nursing shortages. Because nurses play a vital role in safeguarding the public, it is imperative that meaningful change occur before the nursing shortage’s devastating effects become more widespread.

Various levels of scope of nursing practice exist, and nurses are present in a variety of settings worldwide. Although many of the topics covered in this article are shared experiences by nurses and healthcare workers across the globe, this article will focus predominately on nurses, without distinction in scope or setting, unless otherwise indicated.

A Historical Review

Nursing shortages have occurred throughout history for various reasons. In the mid-1930s, an increase in demand due to changes in healthcare delivery necessitated a larger nursing workforce. This was closely followed by the relocation of approximately 25% of the available civilian nurse population to the war effort in World War II. Recognizing the nation’s vital need for nurses, Congress passed the Bolton Act in 1943.

Under the Bolton Act, the U.S. Cadet Nurse Corps (CNC) was established, and federal funding enabled women to train as nurses for military and civilian roles. The creation of categories of nurses to address supply and demand issues ran concurrent with the creation of the CNC. During this time, licensed practical nurses (LPNs), also known as licensed vocational nurses (LVNs), were trained in one year versus the three it took to graduate nursing school. Funding from the Bolton Act was used for nurse training and student scholarships and to provide funds directly to schools in proportion to their ability to recruit students for enrollment.

Post-war, increased hospital utilization combined with fewer entrants into the nursing profession created another nursing shortage. In the early 1980s, there was another short supply of nurses, due to a reduced level of satisfaction working in the hospital setting, increased complexity of patient care needs, and greater opportunities for employment outside of the hospital setting. The current nursing shortage, which started in 1998, has lasted longer than any other shortage in history.

The 1998 nursing shortage stems from changes in the financing and structure of healthcare delivery models. Although a large shortage of nurses had long been projected, projections from renowned nurse and healthcare economist Peter Buerhaus, Ph.D., RN, shifted in 2009, mainly because a surge of nurses under the age of 35 entered the profession. This surge of nurses was believed to be a result of actual and expected income losses during the 2001 and 2007 recessions. Even with the promise of a more robust nursing workforce, projections indicated there would be a shortage of nurses resulting in a deficit of approximately 260,000 by 2025, a shortage more than double the size of any experienced since the introduction of Medicare and Medicaid. Dr. Buerhaus also cautioned that if the trend of younger nurses entering the profession reversed, or if the new young nurses left the profession permanently soon after entering the workforce, the projections would fail and the deficit would be greater than expected.

The Effect of an Aging Workforce and an Aging Population

In addition to changes in the financing and structure of healthcare delivery models, numerous factors continued to drive the current nursing shortage well before the pandemic. Four main factors are believed to be driving the current nursing shortage: (1) nurses retiring or leaving the profession, (2) a shortage of nursing faculty, (3) an aging population with increasingly complex medical needs, and (4) nursing burnout. This section will explore how an aging workforce and aging population contribute to the nursing shortage.

One Million of America’s Most Experienced Nurses are Due to Retire

The introduction of the Medicare Act of 1965 heralded increased access to medical care, new treatments and new technologies, increased healthcare spending, and an increased number of individuals entering the nursing profession. As a result, approximately one million “baby boomers” made up two-thirds of the nursing workforce by 1990. But changes in the financing and structure of healthcare delivery models would dwindle the once-robust nursing workforce. In 2001, the U.S. Government Accountability Office (GAO) presented a report titled Nursing Workforce: Emerging Nurse Shortages Due to Multiple Factors to the Chairman, Subcommittee on Health, Committee on Ways and Means, and the House of Representatives. The report identified that the percentage of nurses under the age of 30 had dropped from 26% in 1980 to only 9% in 2000. Conversely, the percentage of nurses aged 40 to 49 grew to 35% from 20% in the same time frame. As of 2020, the median age of nurses in the U.S. is 52. Due to the advanced median age of nurses in the workforce, researchers project that more than one million nurses from the baby boomer era will retire by 2030, taking with them their invaluable experience and expertise.

The Nurse Faculty Shortage

In 2001, the GAO also reported concern regarding a pending shortage of nurse educators. According to the American Association of Colleges of Nursing (AACN), 80,407 qualified baccalaureate and graduate nursing degree-seeking students were turned away by U.S. nursing schools in 2019, mainly due to a lack of faculty and clinical preceptors. Faculty shortages in nursing schools are severely limiting the number of available seats to students at a time when the U.S. needs to grow its nursing workforce most. Because most full-time faculty positions require a graduate nursing degree, the shortage of faculty further narrows the pool of potential nurse educators. The factors contributing to the nursing faculty shortage identified by AACN are similar to those affecting the profession as a whole—an aging workforce and projected retirements over the next decade. Arguably, one of the most critical issues is the lack of competitive salaries for educators, who average $79,444 annually for an assistant professor position in schools of nursing, versus what is available to nurses directly caring for patients, such as nurse practitioners (NPs) who average $110,000.

Efforts to alleviate the nursing shortage have been adopted at both state and federal levels. State initiatives have largely focused on increasing the number of nurse graduates and matching them with clinical preceptors. Conversely, at the federal level, funds provide nurses financial support for lost revenue and increased expenses suffered during the pandemic, as well as scholarship incentives to NP students in exchange for providing primary care in underserved areas. Both state and federal efforts hope focusing on turning out qualified baccalaureate and graduate degree nurses will achieve three main goals: (1) facilitate the filling of vacant faculty positions, (2) decrease the number of qualified nursing degree-seeking students who are turned away from nursing education programs, and (3) increase the ranks of nurses overall.

New Technologies Increase the Complexity of Nursing Care

The projected loss of nurses by 2030 is expected to be exacerbated by a projected increase in the number of U.S. residents aged 65 and older in the same year. In 2019, there were just over 54 million U.S. residents 65 years of age and older. This number is expected to grow to 82 million by 2030, as technology advances and medicine increase the quality and length of human life spans. While technological advances can be a boon, they also tend to inadvertently increase the complexity of patient care. Instruments, such as the Therapeutic Index Scoring System (TISS), are utilized to assess nursing workload, diagnostic, monitoring, and therapeutic needs of patients. Patients who score high on the TISS have more complex care needs and require greater indices of therapeutic intervention. Clinical specialties with high indices of therapeutic intervention, like the intensive care unit (ICU), require a greater amount of time and effort for nursing care. Clinical specialties with high indices of therapeutic intervention also have the highest rate of nursing turnover secondary to exposure to high patient mortality and difficult daily workloads that lead to excessive stress.

Inadequate Nurse Staffing: In Search of the Goldilocks Nurse Staffing Law

Nurses have voiced concern regarding inadequate nurse staffing in the hospital setting since the 1980s. In response, the Institute of Medicine (IOM) conducted a study in 1993, at Congress’s request, to assess the adequacy of nurse staffing in hospitals. The 1993 IOM report concluded there was insufficient evidence to support specific nurse staffing ratios in hospitals at that time. Since the report, aggressive cost-saving measures in response to market competition and managed care systems have led to a reduction in nursing staff and greater workloads on bedside nurses. This shift increased concerns about nurse staffing while simultaneously driving a growing body of research that continued to bolster the argument in favor of adequate nurse staffing.

Currently, the Code of Federal Regulation (C.F.R.) § 482.23(b) dictates that hospitals certified to participate in Medicare “must have an adequate number of licensed registered nurses, licensed practical (vocational) nurses, and other personnel to provide nursing care to all patients.” For hospitals that participate in Medicare, C.F.R. § 482.23(b) helps set a minimum federal standard for nurse staffing. Most hospitals in the U.S. participate in Medicare, with few exceptions, such as Veterans Affairs (VA) and active military hospitals that instead operate with VA and military benefits. Unfortunately, C.F.R. § 482.23 fails to quantify or explain what is meant by an adequate number of nursing staff. The lack of clarity in in C.F.R. § 482.23 allows unsafe nurse staffing practices to occur where they might otherwise be curtailed and defers the implementation of nurse staffing laws to the states. Many states have failed to adequately address the issue of nurse staffing entirely, with only sixteen states enacting legislation to improve nurse staffing. These states’ nurse staffing laws follow three main approaches: nurse staffing committees, legislated ratios, and publicly disclosing nurse staffing levels. Each approach will be evaluated in turn.

Staffing Plans by Staffing Committees

In the first and most common approach employed by eight states, staffing committees create staffing plans. Nurse staffing plans that are created by staffing committees are touted by some nurses and nursing organizations as superior, declaring them as a means to address diversity among hospitals and establish a plan tailored to facility needs. Generally, staffing plans reflect the needs of specific patient populations and match the skill and experience of nursing staff to them.

An example of staffing committees and staffing plans can be found in Oregon, which passed House Bill 2800 in 2001 and Senate Bill 469 in 2015 to introduce new nurse staffing laws. After the passage of Oregon nurse staffing laws, a study of their effects demonstrated “wide variation among facilities in the way the staffing legislation is viewed, interpreted, understood, appreciated, and implemented.” Additionally, the majority of the facilities in the study reported staffing “matrices were created by managers with the Chief Nursing Officer (CNO) and influenced by facility budgets.” This means the results of nurse staffing plans were dependent on each individual facility’s budget and management, thereby limiting nurses’ power to effect meaningful change through staffing committees. The staffing committees approach also fails to set a limit on the number of patients a nurse can be assigned. The one benefit to the staffing committees and staffing plans approach most often reported by nurses is that it gives nursing staff a voice and an opportunity to participate in how to set up their unit.

In Oregon, as in other states, hospitals that violate nurse staffing laws are assessed civil penalties for each violation of the written hospital-wide staffing plan, ranging from a statement of deficiencies or letter of warning to monetary fines up to $5,000. Despite nurse staffing laws requiring hospitals to implement staffing committees and staffing plans, hospitals in Oregon repeatedly fall out of compliance. Examples of the ineffectiveness of Oregon’s nurse staffing laws date back to their inception. In 2017, the Oregon Health Authority found “hundreds of staffing violations at St. Charles Bend” and a “multitude of staffing law violations” at Oregon Health and Science University (OHSU). OHSU would go on to be cited again in 2021 for repeated noncompliance with nurse staffing laws after receiving the same citations in 2017.

The ineffectiveness of the nurse staffing laws that embrace staffing committees and staffing plans led to approximately 3,400 nurses and other healthcare professionals working for Kaiser Permanente facilities in Oregon and Southwest Washington to vote to strike, citing concerns about unsafe staffing in late 2021. By 2022, more than 2,000 nurses at three different hospitals also voted to strike against Providence, one of the largest and wealthiest health systems in the nation, citing patient safety issues secondary to unsafe staffing. In light of hospitals’ lack of adherence to nurse staffing laws, suggested improvement measures should focus on setting fines for violations that will effectively deter hospitals from repeatedly committing the same violations and on ensuring nurse staffing committees are not functionally nullified by unreasonable constraints imposed by hospital executives.

Legislated Nurse-to-Patient Ratios

The second approach is for legislators to mandate specific nurse-to-patient ratios in legislation or regulation. California is the only state that stipulates a required minimum nurse-to-patient ratio that must be maintained at all times by various nursing specialties. Although other states, such as Massachusetts, stipulate required minimum nurse-to-patient ratios in certain specialty care areas, such as ICU, no other state delineates specific ratio requirements for as many nursing specialties as are included in California Assembly Bill (A.B.) 394. The approach taken by California ensures nursing ratios are maintained and resources are not stretched even during lunch breaks and peak times. In addition to mandating minimum, specific, numerical ratios, the California law requires additional nurses be added based upon a documented patient classification system, which measures severity of illness, complexity of clinical judgment, and need for specialized equipment. The law also prohibits averaging the number of nurses and patients to reflect compliance and requires both permanent and temporary staff to have an orientation and validated current competence before being assigned to work in a specific clinical area.

Prior to the passing of California’s staffing law, research was underway that would reveal a 7% increase in the likelihood of dying within 30 days of being admitted to a hospital for each additional patient a nurse was assigned. After the implementation of the California mandate, a comparative study sought to determine whether nurse staffing in California hospitals differed from Pennsylvania and New Jersey, two states without legislation at the time but with similar nurse-to-patient ratios to California’s, and whether those differences were associated with nurse and patient outcomes. The study determined fewer deaths would have occurred in New Jersey and Pennsylvania hospitals if the average nurse-to-patient ratios in those hospitals had been equivalent to the average ratio across the California hospitals; specifically, the study estimated “13.9 percent fewer surgical deaths in New Jersey and 10.6 percent fewer surgical deaths in Pennsylvania.”

The benefits to patients are significant, as are the benefits to nurses and the profession as a whole. Further studies have shown additional factors improved after California implemented its mandates. Chief among these positive changes were nursing staff retention, nursing pay, greater skill mix, and a decrease in nurse injury and illness by more than 30%, all of which help to increase or maintain the number of nurses in the profession.

Fear of the effects of applying rigid standards and the belief that evidence in favor of set nurse-to-patient ratios is insufficient drive the opposition to legislation setting nurse staffing ratios. Because diversity exists among facilities, the fear is that a “one-size-fits-all” approach may disproportionately burden some hospitals more than others, such as safety-net hospitals. Safety-net hospitals are defined by the IOM as those that, by legal mandate or through their own explicitly adopted mission, offer access to services for patients regardless of their ability to pay and have a patient mix with a substantial share of patients who are uninsured, patients who are covered by Medicaid, or other vulnerable populations. Because safety-net hospitals predominately serve vulnerable populations, their survival is crucial in preserving access to care for those people.

After the passage of A.B. 394, opponents to nurse staffing laws in California were quick to point out the closure of several healthcare facilities providing medical and psychiatric care. However, proponents of A.B. 394 argued that the hospitals that closed the same year A.B. 394 passed had reported financial losses for years. Additionally, some of the facilities that closed had parent companies that reported profit margins in the billions the same year in which the closure occurred. In recognition of the diversity that exists among hospitals, a potential solution would pair nurse staffing mandates with financial support and resources necessary to comply with enacted legislation.

Public Disclosure of Facility Staffing Levels

A third approach, espoused by five states, requires facilities to disclose staffing levels to the public and/or to a regulatory body. New Jersey, for example, requires hospitals to publicly post within their facilities information regarding the number of staff involved in direct patient care, in addition to reporting daily staffing levels to the state Department of Health. Public disclosure aims to incentivize hospitals to improve staffing by making comparison data available for consumers.

In New Jersey, the law resulted in a decrease in the number of patients per nurse in 10 out of 13 specialty areas. While informative, it is questionable whether patients have the knowledge and capacity to interpret what the staffing numbers mean when applied to them and their care. Critics also note that the lack of standardization with respect to how the various states report data and how the public can access the data may negate the policy intent altogether. Possible solutions to improve the public disclosure of staffing levels include making data easily accessible, providing data in a manner that is easy to interpret, and standardizing reporting methods to make data meaningful to consumers.

Effects of the Emergency Medical Treatment and Labor Act on Nurse Staffing

One of the greatest challenges to staffing a department is the unpredictable nature of patient ingress and egress. While departments can trend data that allows them to make educated predictions about the volume of patients they may experience, it is not always possible to plan for every outcome. Departments that tend to feel the immediate impact of a large influx of patients first are typically labor and delivery (L&D) and the emergency department (ED). This is because L&D and the ED are generally the main points of entry for patients seeking emergency medical care, and all patients seeking emergency care at Medicare participating hospitals are protected by the Emergency Medical Treatment and Labor Act (EMTALA).

Under EMTALA, all Medicare participating hospitals with EDs have three obligations to individuals seeking examination or treatment for a medical condition regardless of their insurance status or ability to pay: (1) to provide a timely medical screening examination (MSE) to determine whether an emergency medical condition exists by a qualified individual; (2) if an emergency medical condition is determined to exist, to provide any necessary stabilizing treatment within its facilities or to initiate an appropriate transfer to a facility capable of treating the condition; and (3) hospitals with specialized capabilities are obligated to accept appropriate transfers of patients from other hospitals if they have the capacity to treat the patients. EMTALA was passed by Congress in 1986 as part of the Consolidated Omnibus Budget Reconciliation Act (COBRA) of 1985, was codified in §1866 and §1867 of the Social Security Act (SSA), and is now codified as 42 U.S.C. §1395cc & 42 U.S.C. §1395dd.

The passage of EMTALA was a direct response to “patient dumping” practices by hospitals that failed to screen, treat, or appropriately transfer patients, particularly those who lacked the ability to pay for services. Some of the penalties for violating EMTALA include hefty fines against hospitals or physicians for each violation, exclusion of physicians from participating in Medicare and state healthcare programs, termination of a hospital’s Centers for Medicare & Medicaid Services (CMS) provider agreement, and a private right of action for citizens harmed. As a result, L&D and the ED can easily and unexpectedly become oversaturated with patients who cannot be turned away or redirected without at minimum providing an MSE and stabilizing treatment for any emergent medical conditions.

Variability in patient ingress can result from an unexpected or anticipated mass casualty incident (MCI). MCIs are defined as events that overwhelm local healthcare systems and where the number of casualties exceeds local resources available in a short period of time. MCIs are not uncommon: for example, the 2017 shooting at the Route 91 Harvest Festival resulted in the ED at Sunrise Hospital treating 199 patients in the span of six hours, compared to the 300 patients they see on an average day; during the 2021 heatwave in the Pacific Northwest, over 500 Oregonians and over 650 Washingtonians sought care in their local EDs despite the region’s attempt to prepare for the event.

ED Boarding Practices Lead to Overcrowding and High Nurse-to-Patient Ratios

Further complicating the issue of adequate nurse staffing for the ED is the presence of boarders. Boarders are patients who remain in the ED after they have been admitted to inpatient or observation status but have not been physically transferred to the appropriate unit within the hospital. One of the most cited reasons for boarding in the ED is a lack of available beds in the hospital where they can be placed. However, as Marc Harrison, MD, chief executive of Intermountain Healthcare, once said, “Beds don’t take care of people; people take care of people.” Dr. Harrison’s statement is a reflection of the reality that, more often than not, the unavailability of a bed is due to a lack of nursing staff either within the hospital or at step-down nursing facilities, such as long-term care centers, rather than a want for a piece of furniture. Regardless of where the shortage of nursing staff is being felt, the outcome is the same: patients cannot reach the appropriate destination.

Boarders who remain in the ED consume space and resources that would otherwise be allocated for the purposes of providing emergency care. The obligation to continue treating patients seeking emergency services does not dissipate as available resources are consumed. Instead, every crevice of the ED, including hallways and supply closets, is lined with chairs and stretchers, turning them into makeshift patient care areas. The care and safety of patients in makeshift accommodations is an additional strain on the limited nursing staff already caring for all the patients the ED’s design intended to accommodate without regard to established nurse-to-patient ratio norms on the inpatient side. In effect, EDs and their nursing staff are required to provide the same quality of patient care services as inpatient units in addition to emergency services.

Nurse Staffing Legislation Makes Cents in a Value-Driven System

Hospital system labor expenses are typically a top budget line item with the greatest ability to offset margin compression. Because labor expenses are closely related to a hospital’s profitability, hospitals and their investors have traditionally lobbied against nurse staffing legislation out of concern that implementing legislated ratios would be cost prohibitive. However, studies show that the long-term cost savings make increased nurse staffing a change necessary to remain competitive in the healthcare market.

The Impact of Nursing Care on Value-Based Programs

In response to the Affordable Care Act (ACA), CMS established value-based programs that reward healthcare providers with incentive payments for meeting quality, performance, and cost metrics. In the hospital setting, CMS programs monitor complication rates, mortality rates, readmission rates, length of patient stay, and patient satisfaction scores with the purpose of achieving greater value at a decreased cost. Adequate nurse staffing is imperative to capitalizing on these CMS reimbursement programs. Nurses spend more time with patients than any other group of healthcare professionals in the hospital setting. A plethora of research studies have shown that nurses’ interventions are directly linked to a positive effect on patient outcomes. For example, the American Nurses Association (ANA) has recognized through its research that nurse staffing has a positive effect on specific patient outcomes, including hospital-acquired conditions (HACs), mortality, and hospital readmissions, each of which are directly linked to CMS reimbursement programs. Therefore, adequate nurse staffing should be central to an organization's efforts to maximize opportunities for reimbursement.

Investing in Nurse Retention Yields Long-Term Cost Savings

Retention of nursing staff, and staff in general, can also have a positive impact on hospital system budgets. Records show that the average hospital turned over more than 90% of its staff since 2016. For hospitals, staff turnover results in an average of $5.2 million to $9 million in losses each year. Data specific to nursing indicates the average cost of losing one bedside nurse results in a $46,100 loss, and for every percentage point increase in nurse retention, hospitals save an average of $262,300 per year.

In a similar vein, the rate of attrition for new graduate nurses is at approximately 30% in the first year of practice and up to 57% by the second year. Because new graduate nurses require a greater amount of training to achieve competency and independence in their nursing roles, the cost of turnover per new graduate nurse is approximately $82,000. State and federal legislation aimed at churning out new nurses will fall flat if hospitals do not invest in retaining new graduate nurses. Hospitals that fail to retain new graduate nurses will also miss out on the opportunity to capitalize on long-term cost savings of up to $2.7 million, which is the reported savings by hospitals that invested time and resources into new graduate retention by implementing residency programs.

    Karla J. Mayorga Hamilton

    JD Candidate 2022, Willamette University College of Law, Portland, Oregon

    Karla J. Mayorga Hamilton is a critical care registered nurse and nurse leader. Ms. Mayorga Hamilton specializes in critical care and emergency services and holds certifications in adult critical care (CCRN), emergency nursing (CEN), and flight nursing (CFRN). Prior to pursuing a JD degree from Willamette University College of Law, Ms. Mayorga Hamilton gained a BSN from Grand Canyon University and an MLS from Arizona State University. She is passionate about advancing the nursing profession through promoting nurse representation in spaces where healthcare and law intersect. She can be reached at [email protected]

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