MM Curator summary

The article below has been highlighted and summarized by our research team. It is provided here for member convenience as part of our Curator service.

[MM Curator Summary]: The initial push back to Biden’s effort to increase care levels in nursing homes has been fierce.

Clipped from: https://www.jdsupra.com/legalnews/crackdown-proposed-nursing-home-minimum-4430387/

According to President Biden’s recently published column, the Administration’s proposed rule, published on September 6, 2023, mandating that nursing homes begin to staff facilities so that registered nurses (RNs) and nurse aides (NAs) provide a minimum number of hours per resident day (HPRD) of care is a “crackdown” designed to “[deliver] a clear message to the nursing home industry: no more padding profits on the backs of residents and nurses.” The President’s column clarifies that the Administration is focused on for-profit facility staffing, particularly in those facilities owned by private equity firms, although the rule would apply to both non-profit and for-profit facilities. The Centers for Medicare & Medicaid Services (CMS) and the U.S. Department of Health and Human Services (HHS) estimate that facilities’ total cost to satisfy the proposed minimum staffing requirement would cost the industry approximately $4.23 billion. Furthermore, CMS and HHS acknowledge that the proposed requirements would require approximately 79 percent of long term care (LTC) facilities to increase their staff levels to ensure full compliance with the proposed requirements.

The rule suggests a comprehensive staffing approach requiring Medicare and Medicaid-certified LTCs to: 1) abide by a new minimum nurse staffing standard based on case-mix; 2) increase their on-site RN presence; and 3) consider new factors in their facility assessments. Specifically, the proposed rule would mandate that facilities maintain an RN staffing requirement of 0.55 HPRD, which is higher than any current RN staffing requirement in any state, except for the District of Columbia. The proposed rule would also require that NAs be staffed at a minimum of 2.45 HPRD, higher than the current minimum in any state or the District of Columbia. Hours staffed by other licensed nurses, such as licensed practical nurses (LPNs) and licensed vocational nurses (LVNs), would not be included in the minimum requirement. In addition, LTC facilities would be required to have an RN onsite 24 hours per day, seven days a week.

Critically, the rule makes clear that the minimum established HPRD is a floor, not a ceiling. Facilities must ensure that their staffing levels consider patient acuity and are based on the results of a facility assessment conducted at least annually, the extensive requirements for which are set out in the proposed rule. The facility assessment is to be developed using evidence-based, data-driven methods that consider both the needs of the facility’s residents and the facility staff’s competencies. The proposed rule emphasizes that it is not incentivizing facilities currently staffing at higher levels than proposed in the rule to decrease numbers, but rather to ensure that “a LTC facility’s staffing decisions should be based on the specific needs of its resident population and not motivated by cost-savings.”

The proposed rule does include a hardship exemption from the minimum HPRD requirements for RNs and NAs, under certain circumstances. To qualify, the facility must be located either in an area where the supply of RNs and/or NAs is insufficient to meet geographic needs, as determined by CMS and HHS, or be 20 or more miles from the next closest LTC facility. In addition, the facility must also be able to document that it has made a good-faith effort to hire and retain staff. Lastly, the facility must be surveyed and cited as noncompliant with the minimum staffing requirement, then demonstrate through documentation the financial resources that the facility expends annually on nurse staffing relative to revenue. However, facilities can negate a potentially available exemption from the staffing requirement if they fail to submit payroll-based journal system data, are classified as a Special Focus Facility (SFF), or based on survey history and other criteria. The proposed rule would implement the final requirements in three phases over a three-year period for facilities located in urban areas, and over a five-year period for facilities located in rural areas.

CMS and HHS state that the types of LTC facilities that may need to increase staffing to meet the minimum requirements include for-profit facilities, as compared to government and non-profit facilities. Also expected to be impacted are larger facilities, freestanding LTC facilities (relative to hospital-based facilities), facilities that are part of a continuing care retirement community, facilities with higher shares of Medicaid residents, SFF facilities or candidates, and rural facilities.

The proposed rule also emphasizes the need for increased efforts to recruit and retain direct care workers into the industry. The proposal includes a new provision that would specify requirements for states to report, annually by delivery system and by facility, the percentage of Medicaid payments that nursing facilities spent on compensation for direct care workers and support staff.

Analyses of the proposed mandates, to date, have noted a number of issues with the proposed rule, as it is currently drafted, that would significantly increase the investment and oversight involved in operating a nursing home. 

MM Curator summary

The article below has been highlighted and summarized by our research team. It is provided here for member convenience as part of our Curator service.

[MM Curator Summary]: The new rule would require more than 75% of facilities can offer.

Clipped from: https://www.hhs.gov/about/news/2023/09/01/hhs-proposes-minimum-staffing-standards-enhance-safety-quality-in-nursing-homes.html

Builds on President Biden’s Historic Commitment to Create a Long-Term Care System Where People Can Live with Dignity 

Today, the U.S. Department of Health and Human Services (HHS), through the Centers for Medicare & Medicaid Services (CMS), issued a proposed rule that seeks to establish comprehensive staffing requirements for nursing homes—including, for the first time, national minimum nurse staffing standards—to ensure access to safe, high-quality care for the over 1.2 million residents living in nursing homes each day. This proposed rule builds on the President’s historic Action Plan for Nursing Home Reform launched in the 2022 State of the Union.

Today’s action is one among many advanced by the Biden-Harris Administration to build a long-term care system where all older Americans can age with dignity, where people with disabilities can receive high quality services in the setting of their choice, where family caregivers are adequately supported, and where there is a pipeline of direct care workers into good-paying jobs with the free and fair choice to join a union. 

“Establishing minimum staffing standards for nursing homes will improve resident safety and promote high-quality care so residents and their families can have peace of mind,” said HHS Secretary Xavier Becerra. “When facilities are understaffed, residents suffer. They might be unable to use the bathroom, shower, maintain hygiene, change clothes, get out of bed, or have someone respond to their call for assistance. Comprehensive staffing reforms can improve working conditions, leading to higher wages and better retention for this dedicated workforce.”

“CMS is proud to be leading the President’s initiative to improve the lives of over 1.2 million residents who reside in Medicare and Medicaid-certified long-term care facilities, and those who will need that care in the future,” said CMS Administrator Chiquita Brooks-LaSure. “Today, we took an important first step to propose new staffing requirements that will hold nursing homes accountable and make sure that residents get the safe, high-quality care that they deserve.”

Under CMS’s proposal, nursing homes participating in Medicare and Medicaid would be required to meet specific nurse staffing levels that promote safe, high-quality care for residents. Nursing homes would need to provide residents with a minimum of 0.55 hours of care from a registered nurse per resident per day, and 2.45 hours of care from a nurse aide per resident per day, exceeding existing standards in nearly all states. CMS estimates approximately three quarters (75%) of nursing homes would have to strengthen staffing in their facilities. As the long-term care sector continues to recover from the COVID-19 pandemic, the proposed standards take into consideration local realities in rural and underserved communities through staggered implementation and exemptions processes.

In addition, nursing homes would also be required to ensure a registered nurse is on site 24 hours per day, 7 days per week and to complete robust facility assessments on staffing needs. Facilities would continue to be required to provide staffing that meets the needs of the individual residents they serve, which may require higher levels of staffing above the proposed minimum standards.  

CMS also proposes to require states to collect and report on compensation for workers as a percentage of Medicaid payments for those working in nursing homes and intermediate care facilities. These policies build on CMS’ recent proposals to support compensation for direct care workers in home- and community-based settings and to publish Medicaid data on average hourly pay rates for home care workers. This enhanced transparency will aid efforts to support and stabilize the long-term care workforce across settings. The Biden-Harris Administration remains committed to strengthening access to high-quality long-term care both at home, in the community as well as in nursing homes and other facilities.

Additionally, CMS announced a national campaign to support staffing in nursing homes. As part of the HHS Workforce Initiative, CMS will work with the Health Resources and Services Administration (HRSA) and other partners to make it easier for individuals to enter careers in nursing homes, investing over $75 million in financial incentives, such as scholarships and tuition reimbursement. This staffing campaign builds on other actions by HHS and the Department of Labor to build the nursing workforce.

“Wages are an important part of job quality and drive challenges in recruitment and retention of direct care workers. Our research shows that in many places these workers can earn higher wages doing other entry-level work,” said Miranda Lynch-Smith, Senior Official Performing the Duties of the Assistant Secretary for Planning and Evaluation.

More than 500,000 direct care workers provide care in nursing homes, assisting residents with daily tasks, such as bathing, dressing, mobility, and eating. This work, performed primarily by women of color, is significantly undervalued. Direct care workers across long-term care settings earn low wages, rarely receive health and retirement benefits, and experience high injury rates. Improving working conditions and wages will lead to improvements in the recruitment and retention of direct care workers and enable nursing staff to provide safer care. 

Findings published by the Office of the Assistant Secretary for Planning and Evaluation show that wages for direct care workers trail other entry-level jobs. In 2019, median wages for nursing assistants were lower than the wages of other entry level jobs in 40 states and the District of Columbia. As an example, the median wage for nursing assistants in Louisiana is $10.90 per hour, compared to $13.41 for other entry-level positions. This is despite the significant demands of direct care jobs and their essential role in meeting the long-term care needs of older adults and people with disabilities.

Other announcements from CMS and the HHS Office of the Inspector General (HHS-OIG) made today would increase transparency, enhance enforcement of existing standards, increase accountability, and ensure safe, high-quality, and dignified care for people living in nursing homes. These announcements include:

• Increasing Audits of Nursing Homes’ Staffing: CMS is expanding audits of the direct care staffing data that nursing homes must report to make sure that federal and state inspectors, as well as residents and their families, have accurate information, including through Nursing Home Care Compare, CMS’ informational website that families and prospective residents use to learn about facilities.
  
• Improving Nursing Home Inspections: CMS will undertake new analyses of state inspection findings to ensure cited deficiencies receive the appropriate consequence, particularly in incidences involving resident harm. These analyses will ensure citations are applied more consistently and reflect the seriousness of the deficiency, permitting appropriate follow-through and enforcement.
  
• Ensuring Taxpayer Dollars Go Toward Safe, High-Quality Care: HHS-OIG is performing new oversight work to follow the money on how nursing homes spend the taxpayer funds they receive. This will include analysis of how nursing homes may profit at the expense of taxpayers and residents by using services, suppliers, or facilities controlled by parties they own or are otherwise connected to, rather than from vendors who might charge a more competitive price. These “related party transactions,” have not only obscured how taxpayer funds are being used by nursing homes, but also prevent a transparent and accurate assessment of whether profits and payouts to shareholders are prioritized above investments in resident safety and fair wages for workers. 
  
• Cracking Down on Inappropriate Antipsychotic Prescribing Practices and Risks: Grave concerns persist – PDF that nursing homes are overprescribing dangerous antipsychotic drugs to residents. To support efforts to reduce the misuse of these powerful medications, HHS-OIG is examining risks at nursing homes that have concerning prescribing practices. This builds on recent actions by CMS to increase oversight of inappropriate use of antipsychotic medication.
  
• Enhancing Resident Safety During Emergencies: Nursing home residents are often among the most vulnerable to public health emergencies and recent emergencies have exposed weaknesses in nursing home emergency planning and harm to residents who suffered from inadequate care. The HHS-OIG is undertaking a new effort to improve resident safety during emergencies, including launching a national study of nursing home preparedness and key challenges and identifying practices to strengthen protections for residents.
  

The proposed rule is available at https://www.federalregister.gov/public-inspection/current

The ASPE report is available at: https://aspe.hhs.gov/reports/dcw-wages

The CMS fact sheet is available at: https://www.cms.gov/newsroom/fact-sheets/medicare-and-medicaid-programs-minimum-staffing-standards-long-term-care-facilities-and-medicaid