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CMS Issues Proposed Rule on Long Term Care Facility Staffing

By Margaret Lally, on October 17th, 2023

The Centers for Medicare and Medicaid Services (CMS) issued the highly anticipated proposal for national minimum staffing standards in long term care facilities on September 1, 2023. President Biden announced his intention to create staffing standards in his 2023 State of the Union address and the industry has been awaiting the publication ever since. The proposed rule cites several studies linking staffing to resident safety and quality of care. The COVID-19 Public Health Emergency brought significant attention to the long-term care industry and the chronic under-staffing that exists in some facilities. The proposed rule seeks to set a floor that will be consistent nationwide and lead to better outcomes for both residents and burned-out staff. The proposed requirements would be enforced through the existing survey, certification and enforcement processes and be publicly reported on the Care Compare website.

The new federal proposal would require a registered nurse to be on site 24 hours a day, seven days per week, an increase from the current requirement of 8 hours per day, seven days per week. The rule would also mandate a minimum of 0.55 RN hours per resident day and 2.45 nurse aide hours per resident day. The existing Facility Assessment would be revised to contain a stand-alone section that would confirm whether a facility has a process in place to monitor staffing such that it is sufficient to meet the nursing needs of their specific residents.

Implementation of the National Minimum Staffing Standards

Implementation of the standards will take place over several years and be staggered to give facilities adequate time to comply with the requirements. The requirement that an RN be on site 24 hours per day and seven days per week would take effect 2 years after publication of the final rule. The minimum RN and aide standards would commence 3 years after the publication of the final rule. Additional time would be granted to facilities in rural areas with an additional year to come into compliance with the RN on site rule and a five-year implementation period for the individual RN and aide staffing mandates.

CMS provided criteria for exemption from the rule in cases where all the following conditions are met:

  • Workforce is unavailable or the facility is at least 20 miles from another long-term care facility, as determined by CMS
  • The facility is making a good faith effort to hire and retain staff
  • The facility provides documentation of its financial commitment to staffing
  • The facility has submitted PBJ data, is not a Special Focus Facility, has not been cited for widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm and has not been cited at the “immediate jeopardy” level of severity with respect to insufficient staffing within the 12 months preceding the survey during which the facility’s non-compliance is identified.

Several enforcement actions have also been identified in the proposed rule for non-compliant facilities. These include potential termination of the provider agreement, payment denial for Medicare and Medicaid beneficiaries and civil monetary penalties.

Reporting Requirements

The rule also aims to require state Medicaid agencies to report on the percentage of Medicaid payments that are spent on direct care workers and support staff. These reporting requirements should highlight the shortfall of Medicaid funding where applicable and shows the recognition that adequate payment is a necessary precursor for sufficient staffing and resident care.

CMS Data

CMS’s data shows that the requirements as outlined above would require 22% of long-term care facilities to hire additional RNs to come into compliance with the 24/7 requirement and an additional 36% to come into compliance with the 0.55 hours per resident day requirement. An estimated 68% of long-term care facilities would have to hire additional aides to provide 2.45 hours per resident day of care. CMS also predicts that other types of staffing would not change, leading to an estimated 3.9 hours of nursing care per resident, per day.

In NYS, based on the first quarter of 2023, only 53% of long-term care facilities met the RN hours per resident day metric and only 18% the aide hours per resident day floor. 66% and 34% of Not for Profit and Public facilities meet the RN and aide thresholds respectively, while only 45% and 9% of proprietary facilities meet them. When coupled with the current NYS Minimum Staffing standards, homes would need to provide 2.45 aide hours per resident day, 0.55 RN hours per resident day, and 0.45 hours of licensed nursing care per resident day, leading to a total of 3.55 hours per resident day in total to comply with both the federal and state requirements.

If you need further guidance or have any questions on this topic, we are here to help. Please do not hesitate to reach out to discuss your specific situation.

This material has been prepared for general, informational purposes only and is not intended to provide, and should not be relied on for, tax, legal or accounting advice. Should you require any such advice, please contact us directly. The information contained herein does not create, and your review or use of the information does not constitute, an accountant-client relationship.

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Written By

Margaret Lally Dec21 scaled

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