On September 1, 2023, the U.S. Division of Well being and Human Companies, by 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 residence staffing necessities, though numerous states have already enacted their very own staffing necessities.

Proposed Staffing Commonplace – 3.0 HPRD

Beneath the proposed rule nursing properties must, at a minimal, have nursing workers ample 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 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 greater than each state requirement and solely decrease than the District of Columbia, and that the proposed NA requirement is greater than all present requirements primarily based on September 2022 knowledge.[5]  Along with the HPRD customary, 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 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 customary however didn’t suggest a particular staffing stage.  The report evaluated 4 staffing necessities ranging between 3.3 HPRD to three.8 HPRD, all of which have been greater than the three.0 HPRD proposed by CMS.  Curiously, each the proposed customary and the evaluated vary of requirements are under the usual that this similar exterior advisor advisable in 2001 of 4.1 HPRD, which is commonly cited in False Claims Act circumstances 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 range considerably primarily based on the kinds and quantities of nursing workers required.  A Could 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 larger than 3.5 HPRD.  Thus, suppliers in states with HPRD necessities greater than CMS’s proposed customary—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 acknowledged that “[f]acilities can 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 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 offer 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 choices to make sure acceptable workers with the required abilities 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 particular wants for every unit, and to regulate staffing as needed primarily based on any vital adjustments 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 that will require greater ranges of care, comparable to reminiscence care or ventilator items.[14]  Third, CMS proposes that services take into account the staffing wants for every shift, comparable to night time or weekend shifts that always have decrease staffing ranges.[15]  Fourth, services must use their facility evaluation to develop and keep 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 that will affect resident care however don’t rise to the extent of activating the power’s emergency plan, comparable 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 residence 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.  Nonetheless, suppliers could also be required to think about find out how to 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 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 look like the motivating precept behind CMS’s proposed exemptions to its proposed staffing requirements.  As a way 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 residence.[21]  Second, the power must exhibit its good religion efforts to rent and retain workers, together with by a recruitment and retention plan, and job postings that gives prevailing wages.[22]  Third, the power must present a “demonstrated monetary dedication” to staffing primarily based on the monetary sources the power expends yearly on nurse staffing relative to income.[23]  Lastly, the power should be surveyed to evaluate the well being and security of its residents.[24]

Nonetheless, a facility is not going to 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 rapid jeopardy stage 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 brief reprieve from the minimal staffing necessities, CMS explicitly famous that every “facility should nonetheless adjust to its statutory and regulatory obligations to have ample workers to guarantee resident security, and to achieve or keep 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 also be looking for enter on different staffing requirements, together with a 3.48 HPRD customary, 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 customary.[28]

Conclusion

CMS’s proposed rule generated vital consideration from trade and shopper teams earlier than it was unveiled and can doubtless generate vital public feedback from numerous stakeholders.  In anticipation of some type a last staffing customary, 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 adjustments to facility assessments, and find out how to doc the varied exemption standards.  Feedback should be submitted to CMS by November 6, 2023.  For those who 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 Cost Transparency Reviews 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.