The Centers for Medicare & Medicaid Services (CMS) issued the long-awaited Proposed Minimum Staffing Rule on 9/1/23 with the stated objective of seeking “to establish comprehensive nurse staffing requirements to hold nursing homes accountable for providing safe and high-quality care for the over 1.2 million residents receiving care in Medicare and Medicaid certified facilities each day”. Here’s what you need to know…
This proposed rule consists of three core staffing proposals:
- Minimum nurse staff standards of 0.55 hours per resident day (HRPD) for Registered Nurses and 2.45 HPRD for Nurse Aids;
- A requirement to have an RN onsite 24 hours a day, seven days a week; and
- Enhanced facility assessment requirements.
This proposed rule was the result of several approaches which CMS states were “aimed at determining the minimum level and type of staffing needed to enable safe and quality care in LTC”. These approaches included a Request for Information in the FY 2023 SNF PPS Proposed Rue, hosting listening sessions, conducting a 2022 Nursing Home Staffing Study, and reviewing recent years of PBJ staffing data.
CMS proposes that the minimum nurse staffing standard thresholds of 0.55 HPRD for RNs and 2.45 HPRD for NAs are minimums, and if finalized, would be applied across all LTC Facilities. CMS expects that facilities will staff above these minimum baseline levels to address the specific needs of their resident population based on their facility assessment and resident acuity levels.
CMS is proposing several updates to the facility assessment as a means of strengthening these requirements, which includes the following:
- Clarifying that facilities must use evidence-based methods when care planning for their residents, including consideration for those residents with behavioral health needs;
- Requiring that facilities use the facility assessment to assess the specific needs of each resident in the facility and to adjust as necessary based on any significant changes in the resident population;
- Requiring that facilities include the input of facility staff, including but not limited to, nursing home leadership, management, direct care staff (i.e., nurse staff), representatives of direct care staff, and staff who provide other services, and;
- Requiring facilities to develop a staffing plan to maximize recruitment and retention of staff.
CMS has indicated that they fully expect that LTC facilities will be able to meet the proposed minimum staffing standards, but they recognize that in some instances, “external circumstances may temporarily prevent a facility from achieving compliance despite the facility’s demonstrated best efforts.”
Therefore, CMS has proposed to allow for a hardship exemption in limited circumstances, but only if facilities are able to meet specific criteria which demonstrates the following:
- Workforce unavailability based on their location, as evidenced by a provider-to-population ratio for the nursing workforce that meets criteria for a medium (that is, 20 percent below the national average) or low (that is, 40 percent below the national average) ratio as calculated by CMS, or the facility is located at least 20 miles away from another LTC facility (as determined by CMS); and
- Good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan; by documenting job postings, and job vacancies, including the number and duration of vacancies, job offers made, and competitive wage offerings, and
- A financial commitment to staffing by documenting the total annual amount spent on direct care staff.
Facilities would not be eligible for an exemption if:
- They have failed to submit their data to the Payroll-Based Journal (PBJ) system
- They have been identified as a special focus facility (SFF) or
- They have been identified within the previous 12 months as having widespread insufficient staffing which resulted in actual harm or a pattern of insufficient staffing which resulted in resident actual harm or have been cited at the immediate jeopardy level of severity related to insufficient staffing as determine by CMS.
“Additionally, CMS announced a national campaign to support staffing in nursing homes. They will work with the Health Resources and Services Administration (HRSA) and other partners to make it easier for individuals to enter careers in nursing facilities, investing over $75 million in financial incentives such as scholarships and tuition reimbursement.”
In order to give facilities time to achieve compliance with the proposed minimum staff requirements, CMS proposes that implementation of the final requirements will occur in three phases over a 3-year period as follows:
- The HPRD requirement has the longest phase in, which begins once the rule is finalized. For urban facilities, this requirement would be effective 3 years after it becomes final, for rural facilities this requirement would be effective 5 years after a final rule is issued.
- The 24-hour RN requirement would take effect 2 years after the publication of the final rule for urban facilities, and 3 years after the publication of the final rule for rural facilities.
- The facility assessment requirement goes into effect 60 days after the publication of the final rule for all facilities.
CMS indicates there will be penalties for non-compliance. These may include actions ranging from termination of the provider agreement to civil money penalties to directed plan of correction or other enforcement actions.
Remember, this is a proposed rule with a 60-day comment period for the notice of proposed rulemaking. Comments must be submitted to the Federal Register no later than November 6, 2023.
View a copy of the CMS Fact Sheet. You can also review the entire rule and obtain information on how to submit comments at https://www.federalregister.gov/public-inspection/current.
Written By: Janine Lehman, RN, RAC-CT, CLNC
Director of Legal Nurse Consulting
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