On September 1, 2023, the Facilities for Medicare and Medicaid Providers (CMS) issued a long-awaited proposal to determine new federal minimal staffing requirements for long-term care services.[1] If the proposed rule is finalized, CMS estimates that roughly 75% of all nursing properties must “strengthen staffing of their services” to be able to meet the brand new necessities.[2]

Proposed Minimal Staffing Necessities

As proposed, nursing properties will probably be required to offer:

• A Registered Nurse (RN) on-site 24 hours per day, 7 days per week (the “24/7 RN Requirement”); 
• A minimum of .55 RN hours per resident per day (the “.55 RN HPRD”); and
• A minimum of 2.45 Nurse Aide (NA) HPRD (the “2.45 NA HPRD”).

CMS seeks public touch upon whether or not a minimal complete nurse staffing customary, equivalent to 3.48 HPRD amongst different options, must also be required both rather than – or along with – a requirement just for RNs and NAs. 

As proposed, the RN and NA HPRD necessities would set up a ground that’s unbiased of a facility’s affected person case-mix. In different phrases, no facility can be permitted to function under .55 RN HPRD and a couple of.45 NA HPRD, and if the acuity wants of residents in a facility require the next stage of care, the next RN and NA staffing stage can be required. 

With a view to give services enough time to rent further employees, CMS has proposed a staggered implementation of the minimal staffing requirements:

• The 24/7 RN Requirement can be carried out two years after publication of a ultimate rule; and
• The .55 RN HPRD and a couple of.45 NA HPRD necessities can be carried out three years after publication of a ultimate rule.

For rural services, these implementation dates can be additional prolonged, to a few years for the 24/7 RN Requirement, and 5 years for the .55 NA HPRD and a couple of.45 RN HPRD necessities.

Hardship Exemptions

The proposed rule features a provision to permit for a short lived hardship exemption from the minimal staffing requirements, if a facility can exhibit the next:

• Workforce unavailability based mostly on location, as evidenced by (i) both a medium (i.e., 20 % under the nationwide common) or low (i.e., 40 % under nationwide common) provider-to-population ratio for the nursing workforce, as calculated by CMS, through the use of the Bureau of Labor Statistics and Census Bureau information, or (ii) the power’s location a minimum of 20 miles away from one other LTC facility (as decided by CMS); and
• Good religion efforts to rent and retain employees by means of the event and implementation of a recruitment and retention plan by documenting job postings and job vacancies, together with the quantity and period of vacancies, job presents made, and aggressive wage choices; and
• A monetary dedication to staffing by documenting the whole annual quantity spent on direct care employees.

Any facility that CMS identifies as a particular focus facility, or as having widespread or a sample of inadequate staffing (throughout the previous 12 months) leading to a quotation of precise resident hurt or instant jeopardy, won’t be eligible for the hardship exemption. Services that fail to submit required information to CMS’s Payroll-Based mostly Journal System may even be ineligible for a hardship exemption. The proposed rule notes that facility compliance with staffing necessities will probably be revealed on the Care Examine web site, together with whether or not a facility has obtained a hardship exemption. 

Facility Assessments

The proposed rule additionally consists of updates and clarifications to the prevailing facility evaluation necessities. Amongst different adjustments, nursing properties can be required to make use of the power evaluation to: (i) assess the precise wants for every resident unit within the facility; (ii) contemplate the precise staffing wants for every shift (e.g., day, night, evening, and weekends); (iii) develop and preserve a staffing plan to maximise recruitment and retention of nursing employees; and (iv) incorporate the enter of facility employees and their representatives into their facility evaluation.

Public Remark Interval

Stakeholders could submit feedback on the proposed guidelines through the 60-day remark interval that ends on November 6, 2023. CMS particularly requested feedback on a number of proposals, together with:

• The feasibility of every facility having an RN on website 24 hours a day, seven days every week, together with doable options.
• Whether or not along with, or rather than, the .55 RN HPRD and a couple of.45 NA HPRD necessities, a complete nurse staffing customary needs to be required.
• Probably the most applicable strategy to show determinations of facility compliance with minimal staffing requirements on the Care Examine web site.
• The advantages and tradeoffs of the totally different requirements, proof, or methodologies that states use to determine minimal staffing requirements and different key concerns.

CMS’ resolution to suggest minimal staffing requirements is for certain to be a scorching matter within the trade as services proceed to battle with a labor disaster, and should have unintended penalties that have been famous by CMS itself in 2016, when it acknowledged: “We proceed to be involved {that a} mandated ratio might end in unintended penalties, equivalent to staffing to the minimal, enter substitution (hiring for one place by eliminating one other), and activity diversion (assigning non-standard duties to a place), in addition to stifling innovation . . .”[3] Nursing properties and different stakeholders are inspired to submit feedback to CMS as they start getting ready for a brand new period of staffing mandates.

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If in case you have questions on CMS’s proposed rule, the attorneys on the Sheppard Mullin Healthcare Crew can be found to help you. Be a part of us for our webinar “CMS Proposes Minimal Staffing Necessities for Expert Nursing Services” on September 27, 2023.

FOOTNOTES

[1] The proposed rule may be present in as we speak’s Federal Register.

[2] See CMS Press Launch at: https://www.cms.gov/newsroom/press-releases/hhs-proposes-minimum-staffing-standards-enhance-safety-and-quality-nursing-homes.

[3] See Federal Register, Vol. 81, No. 192 at p. 68754 (October 4, 2016).