AG Nessel & 14 Democratic Colleagues Endorse CMS-3442-P, Proposed Minimum Staffing Rule for Long-Term Care Facilities
AG Dana Nessel joined a coalition of 15 Democratic state attorneys general which sent a letter to U.S. HHS Secretary Xavier Beccera and Chiquita Brooks-LaSure, the Administrator of the Centers for Medicare & Medicaid Services (CMS) to require even greater minimum staffing requirements for long-term care facilities than required in CMS-3442-P on November 6, 2023.
Proposal CMS-3442-P (88 FR 61352) was printed in the Federal Register on September 9, 2023. Here are the highlights of the CMS proposal:
I. Executive Summary
This proposed rule would establish minimum staffing standards to address ongoing safety and quality concerns for the 1.4 million  residents receiving care in Medicare and Medicaid certified Long-Term Care (LTC) facilities. On February 28, 2022, President Biden announced that CMS would propose minimum staffing standards that nursing homes must meet, based in part on evidence from a new research study that will focus on the level and type of staffing needed to ensure safe and quality care. In addition, on April 18, 2023, President Biden issued “Executive Order on Increasing Access to High-Quality Care and Supporting Caregivers”, which directs the Secretary of HHS to consider actions to encourage LTC facilities to reduce nursing staff turnover that is associated with improving safety and quality of care.[4 5]
These safety and quality concerns stem, at least in part, from chronic understaffing in LTC facilities, and are particularly associated with insufficient numbers of registered nurses (RNs) and nurse aides (NAs), as evidenced from, inter alia, a review of data collected since 2016 and lessons learned during the COVID–19 Public Health Emergency (PHE). Numerous studies, including our new research study as well as existing literature, have shown that staffing levels are closely correlated with the quality of care that LTC facility residents receive, and with improved health outcomes. The minimum staffing standards would also provide staff in LTC facilities the support they need to safely care for residents, help prevent staff—burnout, thereby reducing staff turnover, which can lead to improved safety and quality for residents and staff. This proposed rule would also promote public transparency related to the percent of Medicaid payments for certain institutional services that are spent on compensation to direct care workers and support staff.
B. Summary of Major Provisions
We are proposing to update the Federal participation “Requirements for Medicare and Medicaid Long Term Care Facilities” minimum staffing standards (“LTC requirements”). The updates to the LTC requirements proposed in this rule would be used to survey facilities for compliance and enforced as part of CMS's existing survey, certification, and enforcement process for LTC facilities. In addition, consistent with the President's strategic plan, we also intend to display our determinations of facility compliance with the minimum staffing standards on Care Compare. We welcome comments on the most appropriate approach for doing so.
We are proposing to establish Federal minimum nurse staffing standards for a number of reasons, including the growing body of evidence demonstrating the importance of staffing to resident health and safety, continued insufficient staffing, non-compliance by a subset of facilities, the need to reduce variability in the minimum floor for nurse-to-resident ratios across States by creating a consistent floor, and, most importantly, to reduce the risk of residents receiving unsafe and low-quality care.
The proposed regulatory updates are based on evidence we collected using a multifaceted approach, which included conducting a new nursing home staffing study, gathering feedback during listening sessions, considering more than 3,000 comments received from the Fiscal Year 2023 Skilled Nursing Facility Prospective Payment System proposed rule (FY2023 SNF PPS) request for information (RFI), assessing Payroll-Based Journal (PBJ) System data on nursing home staffing, and reviewing the existing literature.
Specifically, we propose to revise § 483.35(b) to require an RN to be on site 24 hours per day and 7 days per week to provide skilled nursing care to all residents in accordance with resident care plans. We also propose individual minimum staffing type standards, based on case-mix adjusted data for RNs and NAs, to supplement the existing “Nursing Services” requirements at 42 CFR 483.35(a)(1)(i) and (ii) to specify that facilities must provide, at a minimum, 0.55 RN hours per resident day (HPRD) and 2.45 NA HPRD. We note that while the 0.55 and 2.45 HPRD standards were developed using case-mix adjusted data sources, the standards themselves will be implemented and enforced independent of a facility's case-mix. In other words, facilities must meet the 0.55 RN and 2.45 NA HPRD standards, at a minimum, regardless of the individual facility's patient case-mix. RN and NA staffing can never be lower than these proposed minimum standards, and if the acuity needs of residents in a facility require a higher level of care, a higher RN and NA staffing level will also be required. CMS is also seeking comments on whether in addition to the 0.55 RN and 2.45 NA HPRD standards, a minimum total nurse staffing standard, discussed later in the rule, should also be required. For compliance, hours per resident day (HPRD) is defined as staffing hours per resident per day which is the total number of hours worked by each type of staff divided by the total number of residents as calculated by the CMS. As further described below, the proposed minimum staffing standard is supported by literature evidence, analysis of staffing data and health outcomes, discussions with residents, staff, and industry  and other factors.
We note that each of the minimum staffing requirements independently supports resident health and safety. Therefore, compliance with the 24/7 RN requirement does not imply compliance with the minimum 0.55 RN HPRD and 2.45 NA HPRD requirements or vice versa. Specifically, as discussed elsewhere in this rule, the presence of an RN in a LTC facility on a 24-hour basis improves overall quality of care. Similarly, but separately, a minimum number of RN and NA hours per resident per day improve overall quality of care. Both independently and collaboratively, these requirements would support compliance with statutory mandates to provide services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, in accordance with a written plan of care.
As noted elsewhere, this proposal is informed by multiple sources of information, including the 2022 Nursing Home Staffing Study, more than 3,000 public comment submissions, academic and other literature, PBJ System data, and detailed listening sessions with residents and their families, workers, health care providers, and advocacy groups. We recognize that some of the materials we have relied upon offer support for a higher minimum HPRD standard. For several reasons discussed later in this proposed rule, including the importance of setting achievable staffing targets as the long-term care sector recovers from the effects of the COVID–19 pandemic and the desire to preserve resident access to care as the sector expands hiring to meet staffing standards, we are proposing a set of policies that balance the urgent need to improve resident safety and quality of care alongside these practical considerations. The policies include minimum HPRD standards for direct care by nursing staff, required access to an RN 24 hours per day 7 days per week, and enhanced facility staffing assessments.
For example, the 2022 Nursing Home Staffing Study found that a total nurse staffing level of 3.67 or 3.88 HPRD was linked with additional facilities improving quality and safety relative to current low performers, and that total nurse staffing levels between 3.8 HPRD and 4.6 HPRD (including 1.4 licensed nurse HPRD) were linked with reductions in the amount of delayed or omitted clinical care. Our proposal squares these associations between higher HPRD nurse staffing levels and better care outcomes with the goal of establishing implementable minimum standards that can substantially improve quality and safety at all LTC facilities in the near-term. We also considered variation and contradiction between different information sources, including the 2022 Nursing Home Staffing Study, namely regarding the benefits of a staffing standard inclusive of or specific to LPN/LVNs. We further considered the benefits of a requirement for 24/7 on-site RN staffing and strengthened facility staffing assessments, which under this proposed rule apply independently of the HPRD requirements.
The resulting, evidence-based proposal appropriately prioritizes quality and safety of care gains from establishing minimum standards for RNs and NAs, with a particular emphasis on the direct care delivered at the bedside by NAs, and effective implementation of these new requirements. As noted elsewhere, if finalized, these new required floors would increase staffing in more than 75 percent of nursing facilities nationwide, and the proposed NA and RN HPRD requirements exceed those of nearly all States. We remain committed to continued examination of staffing thresholds, including careful work to review quality and safety data resulting from initial implementation of finalized policies, and robust public engagement. Should subsequent data indicate that additional increases to staffing minimums would be warranted and feasible, we anticipate that we will revisit the minimum staffing standards to shift them toward the higher ranges supported by the evidence, such as those described above, with continued consideration of all relevant factors.
We also propose to revise the existing Facility Assessment requirements at § 483.70(e) by moving the provisions to a standalone section and modifying the requirements to ensure that facilities have an efficient process for consistently assessing and documenting the necessary resources and staff that the facility requires to provide ongoing care for its population that is based on the specific needs of its residents.
We are proposing to stagger the implementation dates of these requirements sufficiently to allow facilities the time needed to prepare and be in compliance with the new requirements. Specifically, we propose that the RN on site, 24 hours per day, for 7 days a week would take effect 2 years after publication of the final rule; and we propose that the individual minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs would take effect 3 years after publication of the final rule. Under the proposal facilities in rural areas would be required to meet the proposed RN on site 24 hours per day, for 7 days a week, 3 years after publication of the final rule; and the proposed minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs would take effect 5 years after publication of the final rule.
Exemption from the proposed minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs would be available only in limited circumstances, where all four of the following criteria are met. The four exemption criteria are: (1) where workforce is unavailable, or the facility is at least 20 miles from another long-term care facility, as determined by CMS; (2) the facility is making a good faith effort to hire and retain staff; (3) the facility provides documentation of its financial commitment to staffing; and (4) the facility has not failed to submit PBJ data in accordance with re-designated 483.70(p), is not a Special Focus Facility (SFF); has not been cited for widespread insufficient staffing with resultant resident actual harm or a pattern of insufficient staffing with resultant resident actual harm, as determined by CMS; 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.
If finalized, enforcement actions, also called remedies, would be taken against LTC facilities that are not in compliance with these Federal participation requirements. The remedies CMS may impose include, but are not be limited to, the termination of the provider agreement, denial of payment for all Medicare and/or Medicaid individuals by CMS, and/or civil money penalties.
We are also proposing new regulations at 42 CFR 442.43 (with a cross-reference at 42 CFR 438.82) that would require that State Medicaid agencies report on the percent of payments for Medicaid-covered services in nursing facilities and intermediate care facilities for individuals with intellectual disabilities (ICF/IIDs) that are spent on compensation for direct care workers and support staff. This proposal is designed to inform efforts to address the link between sufficient payments being received by the institutional direct care and support staff workforce and access to and, ultimately, the quality of services received by Medicaid beneficiaries. Taken together, we believe that these proposals will improve safety and quality of care for residents in Medicare and Medicaid certified LTC facilities and Medicaid certified ICF/IIDs.
C. Summary of Cost and Benefits
Table 1—Cost and Benefits
Provision description Total transfers/costs Comprehensive Staffing Requirement for LTC Facilities Without accounting for any exemptions, we estimate that the overall economic impact for the proposed minimum staffing requirements for LTC facilities (that is, collection of information costs and compliance with the 24/7 RN, facility assessment, and minimum 0.55 RN and 2.45 NA HPRD requirements), which includes staggered implementation of the requirements, would result in an estimated cost of approximately for $32 million in year 1; $246 million in year 2; $4 billion in year 3; with costs increasing to $5.7 billion by year 10. We estimate the total cost over 10 years will be $40.6 billion, which was derived from FY 2021 Part V of the Medicare Cost Report. LTC facilities would be expected to bear the burden of these costs, unless payors increase rates to cover cost. Quantified benefits include but are not limited to, increased community discharges, reduced hospitalizations, and emergency department visits, with a minimum estimated savings of gross costs of $318 million per year for Medicare starting in year 3. Various categories of other important but hard to quantify benefits include reduced staff burnout and turnover, and increased safety and quality of care for LTC residents. Lack of quantification is also noteworthy as regards key categories of costs. Medicaid Institutional Payment Transparency Reporting The overall economic impact for the proposed reporting requirement is a one time cost of $38 million and ongoing annual costs of $18 million per year.
The lead paragraphs of the 14 page Democratic AG's letter is here:Dear Secretary Beccera and Administrator Brooks-LaSure,
The undersigned Attorneys General of Arizona, California, Delaware, Illinois, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, and Vermont write in response to the U.S. Department of Health and Human Services and the Centers for Medicare and Medicaid Services’s (“CMS”) proposed rule establishing minimum staffing requirements for long-term care facilities (“Proposed Rule”). As state Attorneys General charged with protecting residents in long-term care facilities, we support the administration’s continuing efforts to ensure that vulnerable nursing home residents receive safe and reliable care in these facilities, following CMS’s recent proposed rule to increase financial transparency for nursing homes, which many of us also supported. We support the Proposed Rule’s requirement that long-term care facilities have a registered nurse (“RN”) on staff for 24 hours per day as an important step towards protecting those residents. We also support the Proposed Rule’s change to CMS’s Care Compare website to display the facility’s staffing numbers immediately below the CMS staffing rating, which will assist consumers making decisions on care.
However, while well-intentioned, the proposed minimum staffing standards for RNs, certified nurse assistants (“CNAs”) and licensed practical nurses (“LPNs”) are too low to protect this critically vulnerable population. As explained below, unintended consequences of the Proposed Rule would include incentivizing many for-profit nursing homes to reduce staffing, which would increase harm to vulnerable residents. We strongly recommend that CMS adopt a minimum requirement of 4.1 hours per resident day (“HPRD”), comprised of 2.8 HPRD for CNAs, .75 HPRD for RNs, and .55 HPRD for LPNs. This standard, which is supported by academic research, is necessary to avoid preventable resident neglect and suffering.
Furthermore, we strongly recommend that the Administration narrow the exemption criteria it has promulgated in the Proposed Rule. First, the “workforce shortage” exemption should be narrowly tailored so it cannot be manipulated by many for-profit nursing homes that have intentionally operated with insufficient staffing in order to divert significant Medicare and Medicaid funds to owners and related parties for personal profit, all while ignoring existing federal regulations requiring them to provide required care and sufficient staffing.
Second, to align for-profit nursing home operators’ incentives with CMS’s intent to increase nursing home staffing, CMS should expand the criteria that makes a facility ineligible for an exemption, including facilities that have recently been cited for failing to meet staffing standards and/or abuse or neglect of residents. Finally, CMS should clearly indicate that the final rule will not preempt any higher state standards or state consumer protection and Medicaid Fraud Control Unit’s (“MFCUs”) efforts related to staffing or quality of nursing care in long-term care facilities.
The Proposed Rule represents an important first step to bring attention to the issue of staffing in nursing homes and provides a starting point for a national discussion regarding what level of staffing best addresses the needs of the patients in skilled nursing facilities.
Notwithstanding the recommendations for improvement, we support and urge CMS to finalize a rule consistent with these recommendations, as part of the federal Administration’s efforts to build “a long-term care system where all seniors can age with dignity,” and where vulnerable residents of these facilities can receive high-quality services and support in the setting of their choice......
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