On September 1, 2023, the U.S. Division of Well being and Human Companies, by way of the Facilities for Medicare & Medicaid Companies (“CMS”) issued a a lot anticipated and contested proposed rule that seeks to ascertain minimal staffing degree necessities for nursing properties. The proposed rule represents the primary time the federal authorities has proposed complete nationwide nursing dwelling staffing necessities, though numerous states have already enacted their very own staffing necessities.
Proposed Staffing Customary – 3.0 HPRD
Beneath the proposed rule nursing properties must, at a minimal, have nursing workers adequate to supply 3.0 hours of nursing workers per resident per day, or 3.0 HPRD.[1] This determine would come with 0.55 HPRD from registered nurses (RNs) and a couple of.45 HPRD from nurse aids (NAs).[2] In response to CMS estimates, roughly 75% of nursing properties must enhance their staffing ranges to fulfill these necessities[3] at a price of about $40.6 billion over 10 years.[4] CMS additionally famous that the proposed RN requirement is larger than each state requirement and solely decrease than the District of Columbia, and that the proposed NA requirement is larger than all present requirements based mostly on September 2022 knowledge.[5] Along with the HPRD normal, the proposed rule would additionally require nursing properties to make sure a registered nurse is on web site 24 hours per day, 7 days per week. This requirement can be separate from the power’s Director of Nursing, which is usually staffed by an RN.[6]
Two days earlier than the proposed rule was introduced, a CMS-commissioned report from an typically used outdoors advisor leaked. The report was apparently used to tell the staffing normal however didn’t advocate a particular staffing degree. The report evaluated 4 staffing necessities ranging between 3.3 HPRD to three.8 HPRD, all of which had been larger than the three.0 HPRD proposed by CMS. Curiously, each the proposed normal and the evaluated vary of requirements are under the usual that this similar outdoors advisor really useful in 2001 of 4.1 HPRD, which is usually cited in False Claims Act circumstances and enforcement actions by the Division of Justice and state Medicaid Fraud Management Models. The 2001 advice of 4.1 HPRD consisted of 0.75 HPRD from registered nurses, 0.55 HPRD from licensed sensible nurses, and a couple of.38 HPRD from NAs.
CMS’s present proposed 3.0 HPRD requirement also needs to be thought of alongside state-specific staffing necessities, which differ considerably based mostly on the kinds and quantities of nursing workers required. A Might 2022 examine discovered that 23 states have requirements lower than 3.0 HPRD, six states have requirements between 3.0-3.49 HPRD, and 6 states and the District of Columbia have requirements better than 3.5 HPRD. Thus, suppliers in states with HPRD necessities larger than CMS’s proposed normal—like these in California or New York, which each require a complete of three.56 HPRD—could also be much less impacted if CMS’s proposed staffing requirements are enacted.
Suppliers may also need to proceed to think about resident acuity along with any staffing requirements. In asserting the proposed rule, CMS acknowledged that “[f]acilities can be required to supply staffing that meets the wants of the person residents they serve, which can require larger ranges of staffing above the proposed minimal requirements.”[7]
If the proposed rule is finalized with out modification, services that fail to fulfill the proposed staffing requirements—and don’t obtain a brief exemption, as mentioned under—could face termination of supplier agreements, denial of funds for Medicare and/or Medicaid beneficiaries, and/or civil cash penalties.[8]
Enhanced Facility Assessments
The proposed rule additionally seeks to revise the present requirement with respect to facility assessments[9] to supply for extra analysis of, and knowledge on, staffing wants.[10] CMS explicitly famous that the improved facility assessments are supposed to “guard in opposition to any makes an attempt by [facilities] to deal with the minimal staffing requirements . . . as a ceiling, relatively than a ground” and that minimal staffing requirements “are solely the start.”[11]
The proposed rule consists of 5 seemingly overlapping necessities for facility assessments. First, CMS proposes that services use the assessments to tell staffing selections to make sure applicable workers with the required expertise can be found to fulfill resident wants as recognized in resident assessments and plans of care.[12] Second, CMS proposes that the power use the assessments to find out the precise wants for every unit, and to regulate staffing as needed based mostly on any important modifications within the resident inhabitants.[13] CMS famous that the present payroll-based-journal (“PBJ”) system doesn’t enable for such insights into staffing in particular items, significantly for items which will require larger ranges of care, resembling reminiscence care or ventilator items.[14] Third, CMS proposes that services take into account the staffing wants for every shift, resembling night time or weekend shifts that usually have decrease staffing ranges.[15] Fourth, services must use their facility evaluation to develop and preserve a staffing plan to maximise recruitment and retention of nursing workers.[16] Fifth, CMS proposes that services use the evaluation to tell contingency planning for occasions which will impression resident care however don’t rise to the extent of activating the power’s emergency plan, resembling unavailability of direct care nursing workers.[17] Services would even have to incorporate, as a part of the evaluation, enter from workers members, together with nursing dwelling management, administration, direct care workers and their representatives, and workers offering different providers.[18]
Since nursing properties are already required to conduct facility assessments to find out staffing in accordance with resident wants, the brand new particulars required by CMS could already be constructed right into a facility’s present assessments. Nevertheless, suppliers could also be required to think about how one can finest spotlight or complement the evaluation on these points.
Phased Implementation
Recognizing the tough staffing realities going through nursing properties, particularly these in rural or underserved communities, CMS proposed a staggered process for implementing the proposed staffing necessities. Rural services would have 60 days from the efficient date, which might be the publication of the ultimate rule within the Federal Register, to fulfill facility evaluation necessities, three years from the efficient date to fulfill the proposed 24/7 RN requirement, and 5 years from the efficient date to fulfill the HPRD necessities.[19] City services would additionally need to conduct the power evaluation inside 60 days from the efficient date, however would have two years from the efficient date to implement the 24/7 RN requirement and three years from the efficient date to implement the HPRD necessities.[20]
Proposed Exemptions
Nursing shortages look like the motivating precept behind CMS’s proposed exemptions to its proposed staffing requirements. In an effort to qualify for a brief hardship exemption from the proposed staffing requirements, a facility should fulfill 4 standards. First, CMS would decide whether or not the power is in an space the place the provision of relevant nursing workers is 20%-40% under the nationwide common provider-population ratio, as decided by CMS utilizing knowledge from the Bureau of Labor Statistics and the Census Bureau, or if the power is twenty-miles or extra from the closest nursing dwelling.[21] Second, the power must show its good religion efforts to rent and retain workers, together with by way of a recruitment and retention plan, and job postings that provides prevailing wages.[22] Third, the power must present a “demonstrated monetary dedication” to staffing based mostly on the monetary sources the power expends yearly on nurse staffing relative to income.[23] Lastly, the power have to be surveyed to evaluate the well being and security of its residents.[24]
Nevertheless, a facility won’t be eligible for an exemption if it meets any of the listed exclusionary standards: (1) failing to submit knowledge to the PBJ system; (2) is listed by CMS as a Particular Focus Facility; (3) has been cited by CMS as having “widespread inadequate staffing with resultant resident hurt” or “a sample of inadequate staffing with resultant resident hurt”; or (4) has been cited on the fast jeopardy degree of severity with respect to inadequate staffing as decided by CMS someday within the previous 12 months.[25]
Services granted exemptions will probably be famous on the Care Examine web site. Though the proposed exemptions would allow services a brief reprieve from the minimal staffing necessities, CMS explicitly famous that every “facility should nonetheless adjust to its statutory and regulatory obligations to have adequate workers to guarantee resident security, and to achieve or preserve the best practicable bodily, psychological, and psychosocial well-being of every resident.”[26]
CMS Requests Enter on Various Staffing Requirements
Along with in search of public touch upon the staffing requirements within the proposed rule, CMS can be in search of enter on different staffing requirements, together with a 3.48 HPRD normal, which might nonetheless embody 0.55 HPRD from RNs and a couple of.45 HPRD from NAs.[27] CMS estimates that it will price of $4.25 billion per 12 months to fulfill the three.48 HPRD normal.[28]
Conclusion
CMS’s proposed rule generated important consideration from trade and client teams earlier than it was unveiled and can probably generate important public feedback from numerous stakeholders. In anticipation of some type a last staffing normal, suppliers could wish to submit feedback to CMS explaining how federal staffing requirements could impression their operations and work together with any state staffing necessities, the impression of anticipated modifications to facility assessments, and how one can doc the varied exemption standards. Feedback have to be submitted to CMS by November 6, 2023. In the event you want any help in submitting a remark, please contact any of the authors of this Alert.
[1] Division of Well being and Human Companies, Facilities for Medicare & Medicaid Companies, Minimal Staffing Requirements for Lengthy-Time period Care Services and Medicaid Institutional Cost Transparency Experiences at p. 5-6 accessible at https://public-inspection.federalregister.gov/2023-18781.pdf (the “Proposed Rule”).
[2] Id. at 5-6.
[3] Division of Well being and Human Companies, Facilities for Medicare & Medicaid Companies, HHS Proposes Minimal Staffing Requirements to Improve Security and High quality in Nursing Properties, Press Launch dated September 1, 2023, accessible at https://www.cms.gov/newsroom/press-releases/hhs-proposes-minimum-staffing-standards-enhance-safety-and-quality-nursing-homes (“CMS Press Launch”).
[4] Proposed Rule at 150.
[5] Id. at 25.
[6] Id. at 5, 66.
[7] CMS Press Launch.
[8] Proposed Rule at 9.
[9] 42 CFR 483.70(e).
[10] Proposed Rule at 8.
[11] Id. at 45, 78.
[12] Id. at 76.
[13] Id. at 76.
[14] Id. at 76.
[15] Id. at 76.
[16] Id. at 76-77.
[17] Id. at 78.
[18] Id. at 73-76.
[19] Id. at 93.
[20] Id. at 93.
[21] Id. at 85.
[22] Id. at 85-86.
[23] Id. at 86.
[24] Id. at 84.
[25] Id. at 225-226.
[26] Id. at 84.
[27] Id. at 60.
[28] Id. at 203.
