On September 1, 2023, the Facilities for Medicare and Medicaid Providers (CMS) issued a long-awaited proposal to determine new federal minimal staffing requirements for long-term care services.[1] If the proposed rule is finalized, CMS estimates that roughly 75% of all nursing properties must “strengthen staffing of their services” to be able to meet the brand new necessities.[2]
Proposed Minimal Staffing Necessities
As proposed, nursing properties can be required to offer:
- A Registered Nurse (RN) on-site 24 hours per day, 7 days per week (the “24/7 RN Requirement”);
- A minimum of .55 RN hours per resident per day (the “.55 RN HPRD”); and
- A minimum of 2.45 Nurse Aide (NA) HPRD (the “2.45 NA HPRD”).
CMS seeks public touch upon whether or not a minimal complete nurse staffing normal, similar to 3.48 HPRD amongst different options, must also be required both instead of – or along with – a requirement just for RNs and NAs.
As proposed, the RN and NA HPRD necessities would set up a ground that’s impartial of a facility’s affected person case-mix. In different phrases, no facility could be permitted to function under .55 RN HPRD and a couple of.45 NA HPRD, and if the acuity wants of residents in a facility require a better degree of care, a better RN and NA staffing degree could be required.
As a way to give services enough time to rent extra workers, CMS has proposed a staggered implementation of the minimal staffing requirements:
- The 24/7 RN Requirement could be applied two years after publication of a closing rule; and
- The .55 RN HPRD and a couple of.45 NA HPRD necessities could be applied three years after publication of a closing rule.
For rural services, these implementation dates could be additional prolonged, to 3 years for the 24/7 RN Requirement, and 5 years for the .55 NA HPRD and a couple of.45 RN HPRD necessities.
Hardship Exemptions
The proposed rule features a provision to permit for a brief hardship exemption from the minimal staffing requirements, if a facility can display the next:
- Workforce unavailability based mostly on location, as evidenced by (i) both a medium (i.e., 20 % under the nationwide common) or low (i.e., 40 % under nationwide common) provider-to-population ratio for the nursing workforce, as calculated by CMS, by utilizing the Bureau of Labor Statistics and Census Bureau knowledge, or (ii) the ability’s location no less than 20 miles away from one other LTC facility (as decided by CMS); and
- Good religion efforts to rent and retain workers by the event and implementation of a recruitment and retention plan by documenting job postings and job vacancies, together with the quantity and period of vacancies, job gives made, and aggressive wage choices; and
- A monetary dedication to staffing by documenting the overall annual quantity spent on direct care workers.
Any facility that CMS identifies as a particular focus facility, or as having widespread or a sample of inadequate staffing (inside the previous 12 months) leading to a quotation of precise resident hurt or fast jeopardy, won’t be eligible for the hardship exemption. Services that fail to submit required knowledge to CMS’s Payroll-Based mostly Journal System can even be ineligible for a hardship exemption. The proposed rule notes that facility compliance with staffing necessities can be printed on the Care Examine web site, together with whether or not a facility has obtained a hardship exemption.
Facility Assessments
The proposed rule additionally contains updates and clarifications to the prevailing facility evaluation necessities. Amongst different modifications, nursing properties could be required to make use of the ability evaluation to: (i) assess the particular wants for every resident unit within the facility; (ii) contemplate the particular staffing wants for every shift (e.g., day, night, night time, and weekends); (iii) develop and keep a staffing plan to maximise recruitment and retention of nursing workers; and (iv) incorporate the enter of facility workers and their representatives into their facility evaluation.
Public Remark Interval
Stakeholders could submit feedback on the proposed guidelines through the 60-day remark interval that ends on November 6, 2023. CMS particularly requested feedback on a number of proposals, together with:
- The feasibility of every facility having an RN on website 24 hours a day, seven days every week, together with doable options.
- Whether or not along with, or instead of, the .55 RN HPRD and a couple of.45 NA HPRD necessities, a complete nurse staffing normal must be required.
- Essentially the most applicable strategy to show determinations of facility compliance with minimal staffing requirements on the Care Examine web site.
- The advantages and tradeoffs of the completely different requirements, proof, or methodologies that states use to determine minimal staffing requirements and different key issues.
CMS’ determination to suggest minimal staffing requirements is for certain to be a sizzling matter within the business as services proceed to battle with a labor disaster, and will have unintended penalties that had been famous by CMS itself in 2016, when it said: “We proceed to be involved {that a} mandated ratio may lead to unintended penalties, similar to staffing to the minimal, enter substitution (hiring for one place by eliminating one other), and process diversion (assigning non-standard duties to a place), in addition to stifling innovation . . .”[3] Nursing properties and different stakeholders are inspired to submit feedback to CMS as they start getting ready for a brand new period of staffing mandates.
* * *
When you’ve got questions on CMS’s proposed rule, the attorneys on the Sheppard Mullin Healthcare Group can be found to help you. Be a part of us for our webinar “CMS Proposes Minimal Staffing Necessities for Expert Nursing Services” on September 27, 2023.
FOOTNOTES
[1] The proposed rule might be present in as we speak’s Federal Register.
[2] See CMS Press Launch at: https://www.cms.gov/newsroom/press-releases/hhs-proposes-minimum-staffing-standards-enhance-safety-and-quality-nursing-homes.
[3] See Federal Register, Vol. 81, No. 192 at p. 68754 (October 4, 2016).
