On September 1, 2023, the U.S. Division of Well being and Human Companies, by means of the Facilities for Medicare & Medicaid Companies (“CMS”) issued a a lot anticipated and contested proposed rule that seeks to ascertain minimal staffing stage necessities for nursing properties. 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 Customary – 3.0 HPRD
Underneath the proposed rule nursing properties must, at a minimal, have nursing employees adequate to supply 3.0 hours of nursing employees 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 accordance with 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 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 primarily based 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 website 24 hours per day, 7 days per week. This requirement can be separate from the ability’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 usually used outdoors marketing consultant leaked. The report was apparently used to tell the staffing normal however didn’t advocate a particular staffing stage. 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. Curiously, each the proposed normal and the evaluated vary of requirements are beneath the usual that this identical outdoors marketing consultant advisable 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 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 must also be thought-about alongside state-specific staffing necessities, which differ considerably primarily based on the kinds and quantities of nursing employees required. A Could 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 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 may even need to proceed to think about resident acuity along with any staffing requirements. In saying 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 greater 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 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 prevailing 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 towards any makes an attempt by [facilities] to deal with the minimal staffing requirements . . . as a ceiling, quite 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 choices to make sure acceptable employees with the mandatory abilities can be found to fulfill resident wants as recognized in resident assessments and plans of care.[12] Second, CMS proposes that the ability use the assessments to find out the precise wants for every unit, and to regulate staffing as vital primarily based on any vital modifications within the resident inhabitants.[13] CMS famous that the present payroll-based-journal (“PBJ”) system doesn’t permit for such insights into staffing in particular items, notably for items which will require greater ranges of care, reminiscent of reminiscence care or ventilator items.[14] Third, CMS proposes that services take into account the staffing wants for every shift, reminiscent of night time 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 employees.[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 ability’s emergency plan, reminiscent of unavailability of direct care nursing employees.[17] Amenities would even have to incorporate, as a part of the evaluation, enter from employees members, together with nursing house management, administration, direct care employees and their representatives, and employees offering different companies.[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 the best way to greatest 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 ability 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. As a way 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 ability is in an space the place the availability of relevant nursing employees 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 ability is twenty-miles or extra from the closest nursing house.[21] Second, the ability must display its good religion efforts to rent and retain employees, together with by means of a recruitment and retention plan, and job postings that gives prevailing wages.[22] Third, the ability must present a “demonstrated monetary dedication” to staffing primarily based on the monetary sources the ability expends yearly on nurse staffing relative to income.[23] Lastly, the ability 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 quick jeopardy stage of severity with respect to inadequate staffing as decided by CMS someday within the previous 12 months.[25]
Amenities granted exemptions will likely be famous on the Care Examine 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 employees to guarantee resident security, and to realize or preserve the very best practicable bodily, psychological, and psychosocial well-being of every resident.”[26]
CMS Requests Enter on Different Staffing Requirements
Along with searching for public touch upon the staffing requirements within the proposed rule, CMS can be searching for 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 might price of $4.25 billion per yr to fulfill the three.48 HPRD normal.[28]
Conclusion
CMS’s proposed rule generated vital consideration from business and client teams earlier than it was unveiled and can doubtless generate vital public feedback from varied stakeholders. In anticipation of some kind a closing staffing normal, suppliers could wish 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 the best way to doc the assorted 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 Companies, Facilities for Medicare & Medicaid Companies, Minimal Staffing Requirements for Lengthy-Time period Care Amenities and Medicaid Institutional Fee Transparency Stories 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 Houses, 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.
