Understanding Staffing Compliance Issues & Exemptions

Nov 13, 2023 | Minimum Staffing, CMS' PBJ Policies

News Digest: Proposed Rule Includes More than Minimum Staffing

Lost in the uproar over minimum staffing requirements for RN’s and CNA’s are a number of additional provisions in CMS’ Proposed Minimum Staffing Rule.  A delayed rollout and provisions for rural facilities are highlighted by CMS has relief valves for some facilities.  Additional assessment requirements and state Medicaid cost reporting are also proposed in the new rule.


Nursing Home Staffing Exemptions Feel Impossible to Obtain, While CMS Criteria Remains Unclear

Nursing homes could receive a hardship exemption for the minimum staffing proposal – but the devil is in the details here – and looks like qualifying for it is going to be tough.

Facilities will need to meet four criteria for an exemption, but it’s unclear how operators will prove some aspects of the criteria to the Centers for Medicare & Medicaid Services (CMS), according to Leah Klusch, executive director for the Alliance Training Center.

The four exemption criteria are: proving workforce is unavailable (or the facility is at least 20 miles from another long-term care facility); the facility is making a good faith effort to hire and retain staff; the facility provides documentation of its financial commitment to staffing; and, the facility has not failed to submit PBJ data.


Amy Stulick. “Nursing Home Staffing Exemptions Feel Impossible to Obtain, While CMS Criteria Remains Unclear.” Skilled Nursing News, 14 Nov. 2023, skillednursingnews.com/2023/11/nursing-home-staffing-exemptions-feel-impossible-to-obtain-while-cms-criteria-remains-unclear.


Leaders ponder: Will 1-year delay save the day on staffing mandate?

It almost certainly will take federal regulators more than a year just to review tens of thousands of comments they have received on a proposed nursing home staffing rule, inevitably delaying any form of implementation, the head of the nation’s second-largest aging services provider group said Monday.

“I think it’s going to take CMS a heck of a lot of time to read through all of those comments — 42,000!” said LeadingAge President and CEO Katie Smith Sloan, referring to a requirement forcing Centers for Medicare & Medicaid Services staff to analyze all comments before advancing a regulation from the proposed to the final stage.

“They have to read all of them, and that’s going to take months and months and months,” Sloan said in a meeting with McKnight’s editors during the first day of her organization’s annual meeting. “I suspect that it will be well past a year from now until we see anything in terms of a final rule. I can’t even imagine how they will come up with something between now and then. They have to reconcile that there are very, very divergent opinions around this.”


Marselas, Kimberly. “Leaders Ponder: Will 1-year Delay Save the Day on Staffing Mandate?” McKnight’s Long-Term Care News, 7 Nov. 2023, www.mcknights.com/news/leaders-ponder-will-1-year-delay-save-the-day-on-staffing-mandate.


Minimum standards or wishful thinking?

The Centers for Medicare & Medicaid Services notice of proposed rulemaking and the report on which it is based have made the foundational point that more staff in nursing homes will result in better patient care and outcomes. While this relationship may seem self-evident, the actual data to support this axiom is pretty thin. But to dismantle the proverbial deck chair while the entire vessel is sinking will quickly lose everyone’s attention.

The issues with these proposed staffing mandates are multiple. First, the available supply at-large of both registered nurses (RNs) and nursing assistants (NAs) is inadequate to meet the proposed requirements. It is a key fact that the supply of RNs and NAs is inelastic; they cannot be manufactured overnight. There are not plenty of RNs and NAs on the sidelines and there’s no indication that, as soon as they see possible opportunity, the ones who left will come back to nursing home jobs.

There wasn’t enough supply before the pandemic, there are even fewer now, and it’s wishful thinking to build a plan on the fiction that they’re eager to return – especially for the same pay rate. Second, these unfunded mandates will drive many more nursing homes out of business. Nursing home providers will be punished or rewarded based on location, payment mix and other factors, which are irrelevant to nursing home quality.


Stackpole, Irving, and John Sheridan. “Minimum Standards or Wishful Thinking?” McKnight’s Long-Term Care News, 1 Oct. 2023, www.mcknights.com/blogs/guest-columns/minimum-standards-or-wishful-thinking.


With 80 percent of SNFs needing more nurses, analysis finds waivers likely to ‘mute’ mandate

Nearly all for-profit nursing homes, which account for two-thirds of US facilities, would need to hire more nurses to meet provisions of the newly proposed federal staffing mandate, results of a new analysis Monday revealed.

While 90% of for-profits would have to hire staff, that level is just 60% on the nonprofit and government-run side, a KFF breakdown of projections showed.

“The data reinforces two truths: nursing homes are not all the same …,” said Katie Smith Sloan, president and CEO, LeadingAge, which represents nonprofit providers of aging services. “The workforce crisis is real. Nurses are in short supply — and not just in nursing homes. CMS’ proposal raises very real challenges for the whole health care sector. The end result is older adults and families’ access to care is in jeopardy.”


Towhey, Jessica R. “With 80 Percent of SNFs Needing More Nurses, Analysis Finds Waivers Likely to ‘Mute’ Mandate.” McKnight’s Long-Term Care News, 18 Sept. 2023, www.mcknights.com/news/with-80-percent-of-snfs-needing-more-nurses-analysis-finds-waivers-likely-to-mute-mandate.


Don’t underestimate first compliance challenge of proposed staffing rule: experts

As providers focus on nurse hour and RN coverage requirements in the federally proposed staffing mandate, experts warn it’s critical they not overlook the first change in the rule’s planned implementation.

It is a significant overhaul of the existing skilled nursing facility assessment, one that would put it higher on a surveyor’s dashboard and underpin efforts to enforce new staffing requirements.

The facility assessment was initiated as part of the 2016 Requirements of Participation. Clarifications the Centers for Medicare & Medicaid Services outlined in its proposed staffing mandate would strengthen certain assessment components, involve more staff in the assessment process and, possibly, trigger more frequent updates.


Marselas, Kimberly. “Don’t Underestimate First Compliance Challenge of Proposed Staffing Rule: Experts.” McKnight’s Long-Term Care News, 15 Sept. 2023, www.mcknights.com/news/dont-underestimate-first-compliance-challenge-of-proposed-staffing-rule-experts.


Nursing home inspector shortage could undermine staffing proposal

State inspectors who likely will help enforce the Biden administration’s new nursing home staffing requirements are facing their own workforce shortages.

Why it matters: The Biden administration says its newly proposed staffing ratios could improve patient care, but the program’s success may depend on a nursing home oversight apparatus that’s already struggling to keep up with inspections.


Goldman, Maya. “Nursing Home Inspector Shortage Could Undermine Staffing Proposal.” Axios, 7 Sept. 2023, www.axios.com/2023/09/07/nursing-home-enforcement-staffing.

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