CMS Issues Anticipated LTC Staffing Mandate

Posted in INDUSTRY NEWS, Long-Term Care

Briggs Healthcare Clinical Consultant

On April 22, 2024, CMS announced its issuance of minimum staffing standards for Long-Term Care facilities, citing its commitment to hold nursing homes accountable for providing safe and high-quality care.

On April 22, 2024, CMS posted an article on its CMS.gov Newsroom webpage, confirming its commitment to hold nursing homes accountable for providing safe and high-quality care by issuing the Minimum Staffing Standards for Long-Term Care Facilities and Medicaid Institutional Payment Transparency Reporting Final Rule (CMS 3442-F).

This final rule, which is anticipated to publish on May 10, 2024, includes 4 key elements and are as follows:

  1. The overall hours per resident day (HPRD) requirement and RN on-site presence
  2. Implementation & Hardship Considerations
  3. The Facility Assessment
  4. Medicaid Institutional Payment Policy

Overall hours per resident day (HRPD) and RN on-site presence

CMS will require a total nurse staffing standard of 3.48 hours per resident day (HPRD), which must include at least 0.55 HPRD of direct registered nurse (RN) care and 2.45 HPRD of direct nurse aide care. LTC facilities may use any combination of nurse staff (RN, licensed practical nurse [LPN], and licensed vocational nurse [LVN], or nurse aide) to account for the additional 0.48 HPRD needed to comply with the total nurse staffing standard.

This rule also requires an RN to be onsite 24 hours a day, seven days a week, and available to provide direct resident care. The 24/7 RN onsite can be the Director of Nursing (DON); however, they must be available to provide direct resident care. When planning for this RN coverage, providers should keep in mind, CMS’ additional rule, §483.35(b)(3), that states “the director of nursing may serve as a charge nurse only when the facility has an average daily occupancy of 60 or fewer residents”.

Implementation:

The minimum staffing standards final rule allows for a staggered implementation period based on geographic location and exemptions for qualifying LTC facilities. As such, CMS is finalizing the following for non-rural facilities:

  • Phase 1 — Within 90 days of the final rule publication, facilities must meet the facility assessment requirements. 
  • Phase 2 — Within two years of the final rule publication, facilities must meet the 3.48 HPRD total nurse staffing requirement and the 24/7 RN requirement. 
  • Phase 3 — Within three years of the final rule publication, facilities must meet the 0.55 RN and 2.45 NA HPRD requirements.

Note: CMS is using the Office of Management and Budget’s classification of non-rural areas.

CMS acknowledges the unique challenges that rural LTC facilities may face, especially as it relates to staffing. Therefore, CMS is finalizing a later implementation date for rural facilities:

  • Phase 1 — Within 90 days of the final rule publication, facilities must meet the facility assessment requirements. 
  • Phase 2 — Within three years of the final rule publication, facilities must meet the 3.48 HPRD total nurse staffing requirement and the 24/7 RN requirement. 
  • Phase 3 — Within five years of the final rule publication, facilities must meet the 0.55 RN and 2.45 NA HPRD requirements. 

Note: CMS is using the Office of Management and Budget’s classification of rural areas.

Hardship Considerations

LTC facilities may qualify for a temporary hardship exemption from the minimum nurse staffing HPRD standards and the 24/7 RN requirement only if they meet the following criterion for geographic staffing unavailability, financial commitment to staffing, and good faith efforts to hire:

  • The facility is located in an area where the supply of RN, NA, or total nurse staff is not sufficient to meet area needs as evidenced by the applicable provider-to-population ratio for nursing workforce (RN, NA, or combined licensed nurse and nurse aide), which is a minimum of 20% below the national average, as calculated by CMS using data from the U.S. Bureau of Labor Statistics and the U.S. Census Bureau.
  • The facility may receive an exemption from the total nurse staffing requirement of 3.48 HPRD if the combined licensed nurse and nurse aide to population ratio in its area is a minimum of 20% below the national average.
  • The facility may receive an exemption from the 0.55 RN HPRD requirement, and an exemption of eight hours a day from the RN on-site 24 hours per day for seven days a week requirement if the RN to population ratio in its area is a minimum of 20% below the national average.
  • The facility may receive an exemption from the 2.45 NA HPRD requirement if the NA to population ratio in its area is a minimum of 20% below the national average.

Eligible LTC facilities that meet the criteria will receive a temporary hardship exemption by completing the following:

  • The facility provides documentation of good faith efforts to hire and retain staff, such as through job postings, the number and duration of vacancies, job offers made, and competitive wage offerings.
  • The facility provides documentation of the facility’s financial commitment to staffing, including the amount the facility expends on nurse staffing relative to revenue.

Prior to being considered, the LTC facility must be surveyed for compliance with the LTC participation requirements. CMS will coordinate with state survey agencies to determine if the facility meets the criteria for a hardship exemption noted above. Facilities that are granted an exemption will be required to:

  • Post a notice of its exemption status in a prominent and publicly viewable location in each resident facility.
  • Provide notice of its exemption status, and the degree to which it is not in compliance with the HPRD requirements, to each current and prospective resident; and
  • Send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman.

CMS will indicate if a facility has obtained an exemption on the Medicare.gov Care Compare website.

Facilities are not eligible for an exemption if any one of the following is true:

  • They have failed to submit their data to the Payroll Based Journal System.
  • They have been identified as a special focus facility (SFF).
  • They have been identified within the preceding 12 months as having: widespread, or a pattern of, insufficient staffing that resulted in actual harm to a resident; or an incident of insufficient staffing that caused or is likely to cause serious harm or death to a resident.

Facilities that meet the hardship exemption criteria are eligible from the time at which the exemption is granted until the next standard recertification survey unless the facility meets any of the above-mentioned criteria for not being eligible for the exemption during that time. The hardship exemption may be extended on each standard recertification survey, after the initial period, if the facility continues to meet the exemption criteria.

Facility Assessment

As part of the CMS minimum staffing standards rule, CMS is requiring additional staffing considerations to the facility assessment requirement to ensure the assessment is utilized as intended by making thoughtful, person-centered staffing plans, and decisions focused on meeting resident needs. CMS is requiring:

  • Facilities must use evidence-based methods when care planning for their residents, including consideration for those residents with behavioral health needs.
  • Facilities must 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.
  • Facilities must include the input of the nursing home leadership, including but not limited to, a member of the governing body and the medical director; management, including but not limited to, an administrator and the director of nursing; and direct care staff, including but not limited to, RNs, LPNs/LVNs, and NAs, and representatives of direct care staff as applicable. The LTC facility must also solicit and consider input received from residents, resident representatives, and family members.
  • Facilities are required to develop a staffing plan to maximize recruitment and retention of staff consistent with what was described in the President’s April Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers.

Medicaid Institutional Payment Transparency 

Lastly, to increase transparency related to compensation for workers, CMS will also require states to collect and report on the percent of Medicaid payments that are spent on compensation for direct care workers, and support staff, delivering care in nursing facilities and intermediate care facilities, for individuals with intellectual disabilities.

The Medicaid Institutional Payment Transparency Reporting provisions include: 

  • Requiring states to report to CMS on the percentage of Medicaid payments for services in nursing facilities and ICFs/IID that is spent on compensation for direct care workers (such as nursing and therapy staff) and support staff (such as housekeepers and drivers providing transportation for residents). These requirements apply regardless of whether a state’s LTSS delivery system is fee-for-service or managed care. 
  • Requiring the exclusion of costs of travel, training, and personal protective equipment (PPE) from the calculation of the percent of Medicaid payments going to compensation. Excluding the costs of training, travel, and PPE from the calculation will help ensure that nursing facilities and ICFs/IID continue to invest in these critical activities and items, without providers being concerned that these costs will count against their spending on compensation to direct care workers and support staff.
  • Providing an exemption for the Indian Health Service and Tribal health programs subject to 25 U.S.C. 1641 from the reporting requirements.
  • Promoting the public availability of Medicaid institutional payment information,by requiring that both states and CMS make the institutional payment information reported by states available on public-facing websites. 

CMS has agreed to closely monitor and evaluate the provisions of this final rule, including but not limited to, the minimum staffing standards, the 24/7 RN requirement, the exemption process, and the definition of rural, as they are implemented over the next several years to determine whether any updates or changes are necessary in the future. 

The final rule is available to review in its entirety here.