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Thursday, September 14, 2023

CMS Proposes Minimal Staffing Necessities and Enhanced Facility Assessments for Nursing Properties

On September 1, 2023, the U.S. Division of Well being and Human Providers, by means of the Facilities for Medicare & Medicaid Providers (“CMS”) issued a a lot anticipated and contested proposed rule that seeks to ascertain minimal staffing degree necessities for nursing houses.  The proposed rule represents the primary time the federal authorities has proposed complete nationwide nursing house staffing necessities, though varied states have already enacted their very own staffing necessities.

Proposed Staffing Normal – 3.0 HPRD

Below the proposed rule nursing houses must, at a minimal, have nursing workers adequate to offer 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 line with CMS estimates, roughly 75% of nursing houses must improve their staffing ranges to satisfy these necessities[3] at a value of about $40.6 billion over 10 years.[4]  CMS additionally famous that the proposed RN requirement is greater than each state requirement and solely decrease than the District of Columbia, and that the proposed NA requirement is greater than all current requirements based mostly on September 2022 knowledge.[5]  Along with the HPRD normal, the proposed rule would additionally require nursing houses to make sure a registered nurse is on web site 24 hours per day, 7 days per week.  This requirement could be separate from the power’s Director of Nursing, which is commonly staffed by an RN.[6]

Two days earlier than the proposed rule was introduced, a CMS-commissioned report from an typically used exterior advisor leaked.  The report was apparently used to tell the staffing normal however didn’t advocate a selected staffing degree.  The report evaluated 4 staffing necessities ranging between 3.3 HPRD to three.8 HPRD, all of which had been greater than the three.0 HPRD proposed by CMS.  Apparently, each the proposed normal and the evaluated vary of requirements are beneath the usual that this identical exterior advisor really useful in 2001 of 4.1 HPRD, which is commonly cited in False Claims Act instances and enforcement actions by the Division of Justice and state Medicaid Fraud Management Items.  The 2001 suggestion 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 must also 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 research 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 higher than 3.5 HPRD.  Thus, suppliers in states with HPRD necessities greater 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 will even must proceed to think about resident acuity along with any staffing requirements.  In saying the proposed rule, CMS said that “[f]acilities could be required to offer staffing that meets the wants of the person residents they serve, which can require greater ranges of staffing above the proposed minimal requirements.”[7]

If the proposed rule is finalized with out modification, services that fail to satisfy the proposed staffing requirements—and don’t obtain a short lived exemption, as mentioned beneath—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 offer for extra analysis of, and knowledge on, staffing wants.[10]  CMS explicitly famous that the improved facility assessments are supposed to “guard towards any makes an attempt by [facilities] to deal with the minimal staffing requirements . . . as a ceiling, relatively than a flooring” 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 choices to make sure applicable workers with the mandatory expertise can be found to satisfy 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 particular wants for every unit, and to regulate staffing as essential based mostly on any vital 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 greater ranges of care, corresponding to reminiscence care or ventilator items.[14]  Third, CMS proposes that services take into account the staffing wants for every shift, corresponding to evening or weekend shifts that always 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 affect resident care however don’t rise to the extent of activating the power’s emergency plan, corresponding to unavailability of direct care nursing workers.[17]  Amenities would even have to incorporate, as a part of the evaluation, enter from workers members, together with nursing house management, administration, direct care workers and their representatives, and workers offering different providers.[18]

Since nursing houses 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 you can finest spotlight or complement the evaluation on these points.  

Phased Implementation

Recognizing the tough staffing realities going through nursing houses, 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 satisfy facility evaluation necessities, three years from the efficient date to satisfy the proposed 24/7 RN requirement, and 5 years from the efficient date to satisfy the HPRD necessities.[19]  City services would additionally must 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 seem like the motivating precept behind CMS’s proposed exemptions to its proposed staffing requirements.  With the intention to qualify for a short lived 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% beneath 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 house.[21]  Second, the power must exhibit its good religion efforts to rent and retain workers, together with by means of a recruitment and retention plan, and job postings that gives 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 instant jeopardy degree of severity with respect to inadequate staffing as decided by CMS someday within the previous 12 months.[25]

Amenities granted exemptions will probably be famous on the Care Evaluate web site.  Though the proposed exemptions would allow services a short lived 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 Different Staffing Requirements

Along with looking for public touch upon the staffing requirements within the proposed rule, CMS can be looking for enter on different staffing requirements, together with a 3.48 HPRD normal, which might nonetheless embrace 0.55 HPRD from RNs and a couple of.45 HPRD from NAs.[27]  CMS estimates that it might value of $4.25 billion per 12 months to satisfy the three.48 HPRD normal.[28]


CMS’s proposed rule generated vital consideration from business and shopper teams earlier than it was unveiled and can probably generate vital public feedback from varied stakeholders.  In anticipation of some type a last staffing normal, suppliers could need to submit feedback to CMS explaining how federal staffing requirements could affect their operations and work together with any state staffing necessities, the affect of anticipated modifications to facility assessments, and how you can doc the varied exemption standards.  Feedback have to be submitted to CMS by November 6, 2023.  In case you want any help in submitting a remark, please contact any of the authors of this Alert.

[1] Division of Well being and Human Providers, Facilities for Medicare & Medicaid Providers, Minimal Staffing Requirements for Lengthy-Time period Care Amenities and Medicaid Institutional Cost Transparency Reviews at p. 5-6 out there at https://public-inspection.federalregister.gov/2023-18781.pdf (the “Proposed Rule”).

[2] Id. at 5-6.

[3] Division of Well being and Human Providers, Facilities for Medicare & Medicaid Providers, HHS Proposes Minimal Staffing Requirements to Improve Security and High quality in Nursing Properties, Press Launch dated September 1, 2023, out there 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.

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