CMS Issues Final Nursing Home Staffing Standards

The Centers for Medicare and Medicaid Services (CMS) has finalized the nursing home minimum staffing rule originally proposed last September. Announced by the White House on April 22^nd, the regulation was accompanied by two other final rules hailed as providing support for family caregivers, boosting job quality for care workers, and expanding and improving care options, especially for those enrolled in Medicaid and the Children's Health Insurance Program (CHIP). The announcement was timed to correspond with Care Worker Recognition Month.

Although the final rule adds an overall nurse staffing requirement of 3.48 hours per resident day (HPRD) and makes the changes to facility assessments effective in 90 instead of 60 days, the broad parameters of the rule remain as proposed. Importantly, non-rural providers will have two years and rural providers will have three years from the publication date to meet the first staffing mandates. A summary of key provisions is provided below. LeadingAge NY, along with LeadingAge National, will provide more detailed information and compliance tools in the coming weeks.

Key Provisions

The final rule sets the following minimum staffing standards:

A minimum of 3.48 hours of Registered Nurse (RN)/Licensed Practical Nurse (LPN)/Aide care per resident day;
A minimum of 0.55 hours of RN and 2.45 hours of Nurse Aide (NA) staffing per resident day; and
A requirement for an RN to be onsite 24 hours a day, 7 days a week.

Although included as an alternative approach for comment in the proposed rule, note that the overall staffing standard of 3.48 HPRD is a new addition. CMS continues to stress that the agency’s expectation is that the mandated HPRD levels establish a staffing floor, and that facilities would staff above these minimum baseline levels to address the specific needs of their unique resident population based on the enhanced facility assessment and resident acuity levels.

The final rule establishes specific enhancements to the current facility assessment requirements pertaining to staffing needs. CMS indicates that facility assessments help ensure that long term care (LTC) facilities develop thoughtful, informed staffing plans to meet the needs of their specific residents based on case mix and other factors. The current requirements for the facility assessment require each LTC facility to conduct and document a facility-wide assessment to determine what resources are necessary to care for its resident population competently during both day-to-day operations and emergencies. It must be reviewed and updated annually, as necessary, and whenever the facility plans for or has any change in its facility or population that would require a substantial change to any part of the assessment. The assessment must address or include evaluation of the resident population, the facility’s resources, and a facility-based and community-based risk assessment that utilizes the all-hazards approach.

With a few exceptions, CMS is adopting the proposed changes to the facility assessment to:

clarify that facilities must use evidence-based methods when care planning, including consideration of those residents with behavioral health needs;
require the use of 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;
require that facilities include the input of facility staff, representatives of direct care staff, and staff who provide other services; and
require facilities to develop a staffing plan to maximize recruitment and retention of staff.

The final rule does expand the proposed requirement that facilities consider the input of staff to require the active participation of the nursing home leadership and management including, but not limited to, a member of the governing body, the medical director, an administrator, and the director of nursing (DON), and direct care staff including, but not limited to, RNs, LPNs/Licensed Vocational Nurses (LVNs), NAs, and representatives of direct care staff, if applicable. The LTC facility must also solicit and consider input received from residents, resident representatives, and family members.

Effective Dates

The effective dates resemble the proposal with two notable changes: the new requirement for 3.48 of nursing HPRD would be implemented along with the 24/7 onsite RN requirement, and the changes to facility assessments would be effective in 90 instead of 60 days. CMS conceptualizes a three-tier phase-in. First would be the facility assessment provisions, which would kick in 90 days after the publication of the rule, which is scheduled for May 10^th. The second phase would be the requirement that homes have an onsite RN 24 hours a day, 7 days a week. That, as well as the mandate to provide at least 3.48 HPRD of nursing care, would become effective in two years for non-rural providers and in three years for rural facilities. The more granular requirements of 0.55 RN hours and 2.45 Aide hours would become effective three years after adoption of the final rule for homes in urban areas. Homes in rural areas would have five years to reach compliance.

In finalizing the rule, CMS has changed the definition of “rural” from the U.S. Census definition to the definition developed by the Office of Management and Budget (OMB). OMB designates counties as Metropolitan, Micropolitan, or Neither. A Metro area contains a core urban area of 50,000 or more population, and a Micro area contains an urban core of at least 10,000 (but less than 50,000) population. All counties that are not part of a Metropolitan Statistical Area (MSA) are considered rural. Micropolitan counties are considered non-Metropolitan or rural along with all counties that are not classified as either Metro or Micro. According to CMS, this change will increase the number of counties classified as rural by as much as 1,400. County designations can be accessed here.

Comparison to State Requirements

Nursing homes in NYS would be expected to meet both the state and federal requirements. The federal HPRD requirements do not align with NYS standards and differ in several material ways. Notably, the federal rule mandates 0.55 hours of RN time (along with the requirement for a 24-hour onsite RN). The NYS requirement is for 1.1 hours of combined RN and LPN time. Statewide, RNs represent approximately one-third of licensed nursing hours, so a material percentage of homes do not meet 0.55 hours of RN time even as they meet the current state standard of combined RN/LPN hours. Note that the finalized federal requirements seem to parallel the Five-Star staffing calculations, suggesting that they include the hours of the DON and RNs with administrative duties in the compliance calculation, while the state calculation does not. While the details of the 0.55 RN HPRD requirement are less clear, the rule does explicitly indicate that available RNs, including the DON, count toward the 24/7 RN requirement.

On the Aide side, the current state requirement is 2.2 hours of Certified Nurse Aide (CNA) time. While Aide trainees were countable toward the state requirement in 2022, only CNA hours can be counted starting in 2023 forward. The federal rule requires 2.45 hours of Aide time, although that calculation is inclusive of Aide trainee hours and, in those states that allow them, Medication Technician hours.

NY also requires an overall total of 3.5 hours of nursing care, while the federal rule requirement is set at 3.48 hours. The state hours are not case mix adjusted; the same is true for the federal calculation. However, CMS does reiterate that it expects facility staffing to reflect resident acuity and that the facility assessment would help ensure that it is being appropriately considered.

Enforcement and Flexibilities

CMS will monitor compliance primarily through the survey process. Enforcement actions would be taken against facilities that are not in compliance, with potential remedies ranging from termination of the provider agreement and denial of payment for all Medicare and Medicaid residents to civil money penalties.

CMS is also finalizing the hardship exemption largely as proposed. The exemption would potentially apply to facilities that are able to demonstrate the following:

Workforce unavailability based on their location, as evidenced by a provider-to-population ratio for the nursing workforce that is 20 percent below the national average);
Good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan; and
A financial commitment to staffing by documenting the total annual amount spent on direct care staff.

Prior to being considered, the LTC facility must be surveyed to assess the health and safety of the residents. Facilities would not be eligible for an exemption if they have:

failed to submit their data to the Payroll-Based Journal (PBJ) system;
been identified as a Special Focus Facility (SFF); or
been identified within the preceding 12 months as having widespread insufficient staffing with resulting resident actual harm or a pattern of insufficient staffing with resident actual harm or having been cited at the immediate jeopardy level of severity with respect to insufficient staffing.

In addition, those in exemption status would be required to notify current and prospective residents that the facility is exempt and how far the facility's staffing is from the staffing standards. The nursing home would also have to notify the Ombudsman of the exemption, post the information in a public place in the home, and have their exemption status flagged on the Nursing Home Compare website.

Medicaid Payment Transparency

The actions also finalize public transparency provisions about the percentage of Medicaid payments for services in nursing facilities (as well as intermediate care facilities for individuals with intellectual disabilities) that are spent on compensation to direct care workers and support staff. This includes:

requiring states to report to CMS on the percentage of Medicaid payments for services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities that are spent on compensation for direct care workers and support staff. These requirements would apply to both fee-for-service and managed care; and
making the institutional payment information reported by states to CMS available on public-facing websites.

Other than a $70 million program to attract and recruit staff into nursing professions, the rule comes with no additional funding. Although implementation of the new requirements is not immediate, based on PBJ data, nearly 80 percent of homes in NY do not currently meet the Aide requirement, while just under half do not meet the RN HPRD requirement. While homes that are able to meet state staffing requirements would be close to meeting federal standards as well, those that do not could face the prospect of both state and federal penalties.

A fact sheet on the final rule is available here; the press release is here. An inspection copy of the text of the rule, which is scheduled for publication in the Federal Register on May 10^th, can be accessed here.

LeadingAge National has scheduled a webinar at 2 p.m. on April 30^th to provide a detailed walk-through of the rule with a discussion of what members need to consider as they work toward compliance. Registration for the event, which is free to members, is available here.

Contact: Darius Kirstein, dkirstein@leadingageny.org, 518-867-8841