News Digest: CMS Issues Proposed New Minimum Staffing Rule
Some predicted that the payroll-based journal program was intended to enable the creation of a minimum staffing requirement. 8 years after the PBJ program was launched, that prediction came true when CMS proposed a new rule to establish minimum staffing standards for long-term care facilities.
Coverage of the new rule was extensive, as shown below. In addition, there was widespread reaction to the rule.
Medicare and Medicaid Programs; Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting
This proposed rule would establish minimum staffing standards for long-term care facilities, as part of the Biden-Harris Administration’s Nursing Home Reform initiative to ensure safe and quality care in long-term care facilities. In addition, this rule proposes to require States to report the percent of Medicaid payments for certain Medicaid-covered institutional services that are spent on compensation for direct care workers and support staff.
CMS Issues Proposed Minimum Staffing Rule
CMS released the proposed minimum staffing rule this morning (see their press release and fact sheet). The rule is mostly what we expected. Our pre-rule campaign had an impact, but there are still major problems with the rule. If finalized, large portions of the sector would be out of compliance. On top of that, there is no funding to implement these mandates. For this and other reasons you can count on a vigorous AHCA campaign to continue to shape and/or stop this rule.
The purpose of this memo is to outline to you the key features of the proposed rule
AHCA instructions to contact CMS
ahcapressoffice@ahca.org. CMS Issues Proposed Minimum Staffing Rule. www.ahcancal.org/News-and-Communications/Blog/Pages/CMS-Issues-Proposed-Minimum-Staffing-Rule-.aspx.
CMS Issues Federal Nursing Home Staffing Mandate
The Centers for Medicare & Medicaid Services (CMS) on Friday, Sept. 1, issued a long-awaited federal nursing home staffing mandate proposal.
CMS and The White House officially released the proposal after early reports on its key provisions from news outlets including the Wall Street Journal and AP. And President Joe Biden made a case for the mandate in a column that appeared in USA Today.
The proposal calls for Medicare- and Medicaid-certified nursing home to provide a minimum of 0.55 hours of care from registered nurse per resident per day and 2.45 hours of care from a nurse aide per resident per day, with non-rural nursing homes having 3 years and rural nursing homes have 5 years to meet these standards.
Marselas, Kimberly. “Nursing Home Staffing Rule ‘Balanced and Achievable,’ CMS Official Says.” McKnight’s Long-Term Care News, Sept. 2023, www.mcknights.com/news/nursing-home-staffing-rule-balanced-and-achievable-cms-official-says.
CMS issues first-ever nursing home staffing mandate
US nursing homes would have at least three years to provide a minimum of 3.0 hours per patient day of direct care, 0.55 hours of that by a registered nurse and 2.45 hours by a nurse aide, under a first-ever proposed federal staffing mandate released this morning.
Non-rural nursing homes would have three years to comply with some elements of the rule, with rural facilities given five years to get up to speed on the overall hourly rate, the Centers for Medicare & Medicaid Services said in a press release accompanying its draft rule.
A requirement calling for 24/7 RN coverage, triple the current standard, would go into effect two years after the rule is finalized for urban providers, with another year granted to rural providers.
The proposal does include an option for hardship waivers, an element providers had pleaded for given the sector’s ongoing workforce crisis.
Berklan, James M., and Kimberly Marselas. “[UPDATED] CMS Issues First-ever Nursing Home Staffing Mandate.” McKnight’s Long-Term Care News, Sept. 2023, www.mcknights.com/news/139187.
US will regulate nursing home staffing for first time, but proposal lower than many advocates hoped
The federal government will, for the first time, dictate staffing levels at nursing homes, the Biden administration said Friday, responding to systemic problems bared by mass COVID-19 deaths.
While such regulation has been sought for decades by allies of older adults and those with disabilities, the proposed threshold is far lower than many advocates had hoped. It also immediately drew ire from the nursing home industry, which said it amounted to a mandate that couldn’t be met.
With criticism expected, a promise made with fanfare in President Joe Biden’s 2022 State of the Union speech had its details revealed as many Americans turned away from the news for a holiday weekend.
Sedensky, Matt. “US Will Regulate Nursing Home Staffing for First Time, but Proposal Lower Than Many Advocates Hoped.” Yahoo News, 1 Sept. 2023, www.yahoo.com/news/us-regulate-nursing-home-staffing-103127697.html.
Long Term Care Facilities Face Mandatory Minimum Staffing Requirements
On September 1, 2023, the Centers for Medicare and Medicaid Services (CMS) issued a long-awaited proposal to establish new federal minimum staffing standards for long-term care facilities.[1] If the proposed rule is finalized, CMS estimates that approximately 75% of all nursing homes would have to “strengthen staffing in their facilities” in order to meet the new requirements.[2]
Proposed Minimum Staffing Requirements
As proposed, nursing homes will be required to provide:
- A Registered Nurse (RN) on-site 24 hours per day, 7 days per week (the “24/7 RN Requirement”);
- At least .55 RN hours per resident per day (the “.55 RN HPRD”); and
- At least 2.45 Nurse Aide (NA) HPRD (the “2.45 NA HPRD”).
CMS seeks public comment on whether a minimum total nurse staffing standard, such as 3.48 HPRD among other alternatives, should also be required either in place of – or in addition to – a requirement only for RNs and NAs.
Martinez, Lourdes. “Long Term Care Facilities Face Mandatory Minimum Staffing Requirements.” www.natlawreview.com, Sept. 2023, www.natlawreview.com/article/long-term-care-facilities-face-mandatory-minimum-staffing-requirements.
CMS Proposes National Minimum Nursing Staff Requirements for LTC Facilities
In a proposed rule sent to the federal register public inspection list on Sept. 1, the Centers for Medicare and Medicaid Services (CMS) announced a long-awaited minimum staffing requirement for Long Term Care (LTC) facilities that participate in the Medicare and Medicaid programs.
The proposed rule, set for publication in the Federal Register on Sept. 6, would create a floor for staffing in Medicare and Medicaid participating LTC facilities for both registered nurses (RN) and nurse aides (NA). Additionally, CMS is also seeking input on need to add on a minimum total nurse staffing requirement with the rule.
“CMS Proposes National Minimum Nursing Staff Requirements for LTC Facilities.” JD Supra, 7 Sept. 2023, www.jdsupra.com/legalnews/cms-proposes-national-minimum-nursing-3566732.
“If You Require It, They Will Come”: CMS Proposes New Staffing Requirements for Long-term Care Facilities
If you recognize the first part of the title of the blog post, then we share the same taste in movies! The well-known phrase (which I modified slightly), “If you build it, he will come,” comes from my favorite movie, Field of Dreams, in which the main character, Ray Costello (played by Kevin Costner), builds a baseball field in order to bring his father’s favorite baseball player, Shoeless Joe Jackson, back to life. My version, “if you require it, they will come,” doesn’t refer to something quite as exciting, but it’s what the Centers for Medicare & Medicaid Services (CMS) aims to do with its new proposal to require long-term care (LTC) facilities to institute specific nurse staffing ratios.
CMS is concerned that documented shortages in LTC facility staff may jeopardize the quality of care that LTC residents receive, and the agency thinks that adding staff is crucial to improving patient outcomes. Thus, in its proposed regulation issued last week, CMS proposed three new staffing requirements:
- Minimum nurse staffing standards of 0.55 hours per resident day (HPRD) for registered nurses (RNs) and 2.45 HPRD for nurse aides
- An RN onsite 24 hours a day, seven days a week
- Enhanced facility assessments.
CMS acknowledges that it may be challenging for certain facilities to reach these goals, so the agency proposes to phase the requirements in over time (three years for urban facilities and five years for rural facilities). CMS also proposes to allow for temporary hardship exemptions (one year at a time) for specific facilities.
“‘If You Require It, They Will Come’: CMS Proposes New Staffing Requirements for Long-term Care Facilities.” JD Supra, 8 Sept. 2023, www.jdsupra.com/legalnews/if-you-require-it-they-will-come-cms-9370596.
CMS Proposes Minimum Staffing Requirements and Enhanced Facility Assessments for Nursing Homes
On September 1, 2023, the U.S. Department of Health and Human Services, through the Centers for Medicare & Medicaid Services (“CMS”) issued a much anticipated and contested proposed rule that seeks to establish minimum staffing level requirements for nursing homes. The proposed rule represents the first time the federal government has proposed comprehensive nationwide nursing home staffing requirements, although various states have already enacted their own staffing requirements.
Proposed Staffing Standard – 3.0 HPRD
Under the proposed rule nursing homes would have to, at a minimum, have nursing staff sufficient to provide 3.0 hours of nursing staff per resident per day, or 3.0 HPRD. This figure would include 0.55 HPRD from registered nurses (RNs) and 2.45 HPRD from nurse aids (NAs). According to CMS estimates, approximately 75% of nursing homes would have to increase their staffing levels to meet these requirements at a cost of about $40.6 billion over 10 years. CMS also noted that the proposed RN requirement is higher than every state requirement and only lower than the District of Columbia, and that the proposed NA requirement is higher than all existing standards based on September 2022 data. In addition to the HPRD standard, the proposed rule would also require nursing homes to ensure a registered nurse is on site 24 hours per day, 7 days per week. This requirement would be separate from the facility’s Director of Nursing, which is often staffed by an RN.
Crowell & Moring LLP. “CMS Proposes Minimum Staffing Requirements and Enhanced Facility Assessments for Nursing Homes.” Crowell & Moring – CMS Proposes Minimum Staffing Requirements and Enhanced Facility Assessments for Nursing Homes, www.crowell.com/en/insights/client-alerts/cms-proposes-minimum-staffing-requirements-and-enhanced-facility-assessments-for-nursing-homes.
Raising the Floor: CMS Proposes New Nurse Staffing Requirements for Long-Term Care Facilities
On September 6, 2023, the Centers for Medicare & Medicaid Services (“CMS”) issued a proposed rule that would impose federal requirements for nurse staffing in Medicare- and Medicaid-certified long-term care (“LTC”) facilities1 (the “Proposed Rule”).2 The Proposed Rule responds to chronic understaffing concerns in the post-acute setting, which was exacerbated by the COVID-19 public health emergency (“PHE”), and attempts to “improve[] the likelihood that [the 1.4 million LTC facility] residents in the U.S. are provided safe, high-quality care, and that workers have the support they need to provide high-quality care.”3 While the impact of the Proposed Rule would be state-dependent, as some states have no laws on point while others have similar laws to the Proposed Rule, it imposes substantial costs on LTC facilities, managers, owners, and other stakeholders. If finalized without changes to the timeline, the staffing proposals would be implemented in three phases over three years, with more flexibility afforded to LTC facilities located in rural areas to comply within a five-year timeline. Public comments to the Proposed Rule will be accepted through November 6, 2023.
“Raising the Floor: CMS Proposes New Nurse Staffing Requirements for Long-Term Care Facilities.” Insights | Ropes & Gray LLP, Sept. 2023, www.ropesgray.com/en/insights/alerts/2023/09/raising-the-floor-cms-proposes-new-nurse-staffing-requirements-for-long-term-care-facilities.
Medicare and Medicaid Programs: Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting (CMS 3442-P)
On September 1, 2023, the Centers for Medicare & Medicaid Services (CMS) issued the Minimum Staffing Standards for Long-Term Care (LTC) Facilities and Medicaid Institutional Payment Transparency Reporting proposed rule, which seeks to establish comprehensive nurse staffing requirements to hold nursing homes accountable for providing safe and high-quality care for the over 1.2 million residents receiving care in Medicare and Medicaid-certified LTC facilities each day.
Ensuring that beneficiaries receive safe, reliable, and quality nursing home care is a critical function of the Medicare and Medicaid programs and a top priority of CMS. The COVID-19 Public Health Emergency (PHE) tragically caused unprecedented illness and death among nursing home residents and workers. The PHE also exacerbated staffing challenges experienced in many facilities and further highlighted disparities in care and outcomes. Despite existing requirements that facilities provide sufficient levels of staffing in LTC facilities, chronic understaffing remains a significant concern.
The proposed rule consists of three core staffing proposals: 1) minimum nurse staffing standards of 0.55 hours per resident day (HPRD) for Registered Nurses (RNs) and 2.45 HPRD for Nurse Aides (NAs); 2) a requirement to have an RN onsite 24 hours a day, seven days a week; and 3) enhanced facility assessment requirements. The proposed rule also includes a staggered implementation approach and possible hardship exemptions for select facilities. This proposed rule results from a multi-faceted approach aimed at determining the minimum level and type of staffing needed to enable safe and quality care in LTC facilities. This effort included issuing a Request for Information (RFI) in the FY 2023 Skilled Nurse Facility Prospective Payment System Proposed Rule, hosting listening sessions and extensive engagement with various interested parties, conducting a 2022 Nursing Home Staffing Study, which builds on existing evidence and research studies using multiple data sources, and reviewing recent years of Payroll-Based Journal System staffing data. CMS also considered how the proposed minimum staffing requirements would align or interact with ongoing CMS initiatives and programs that impact the LTC community. Information gathered from each of these facets was used by CMS in the development of the proposed requirements that would ensure all nursing home residents are provided safe, quality care.
Cfelixcpa, and Cfelixcpa. “Medicare and Medicaid Programs: Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting (CMS 3442-P) – Florida Hospital News and Healthcare Report.” Florida Hospital News and Healthcare Report, Sept. 2023, southfloridahospitalnews.com/medicare-and-medicaid-programs-minimum-staffing-standards-for-long-term-care-facilities-and-medicaid-institutional-payment-transparency-reporting-cms-3442-p.
