CMS Issues Proposed Minimum Staffing Rule

CMS released the proposed minimum staffing rule this morning (see their press release and fact sheet). The rule is mostly what we expected. Our pre-rule campaign had an impact, but there are still major problems with the rule. If finalized, large portions of the sector would be out of compliance. On top of that, there is no funding to implement these mandates. For this and other reasons you can count on a vigorous AHCA campaign to continue to shape and/or stop this rule.
 
The purpose of this memo is to outline to you the key features of the proposed rule. We will follow this up with a more detailed summary of the proposed rule and a members-only webinar that will be held on Tuesday, September 5 at 4pm EST. (Register now!) 
 
For the last 18 months I've told you that I believe we will eventually win on this issue. Winning means a rule that we can implement or stopping a rule that we can't. I continue to believe that we will eventually win. For that to happen we need your involvement. We are now in the 60-day comment period, where each of us has the right to submit comments to CMS to let it know what we think about the rule. We have a goal of generating 10,000 unique comments over the next 60 days.
 
Generating 10,000 comments will be tough, but we can do it. We need every member building and every member company to weigh in. On Monday, September 11, at 2pm EST (register here!) we will host an additional webinar that walks you and your teams through how to submit comments.
 
THE PROPOSED RULE
 
As we discussed for the last 18 months, there are six key issues with a minimum staffing rule. We've made progress on some of them and need major improvements on others.
 
What is the number of hours required? Two parts of the rule are key here. The first is the hours per resident day (HPRD) requirement. The rule requires 0.55 HPRD of RN time and 2.45 HPRD of nurse aide time. There is no specific requirement for LPN hours. 
 
In addition, the rule requires that an RN be on site 24 hours per day, 7 days a week. Meeting this standard does not guarantee a facility will meet the 0.55 HPRD RN requirement. This will be a major problem for many providers. 

• What workers count? This is the most limiting part of the rule. The 0.55 HPRD can only be met by RNs. The 2.45 HPRD can only be met by nurse aides.
• Is there a waiver? Yes, there is a waiver of the minimum staffing standard for facilities that are making a good-faith effort to try to find workers but cannot get them. However, the waiver process is cumbersome and not user friendly. 
• ​Is this paid for? NO. There is no funding for the additional expense of these nurses and nurse aides. Obviously, this is a major flaw of the proposal. There is $75 million for some scholarships and tuition reimbursement programs to help grow the workforce, but nothing to fund these new requirements. CMS's own estimate is that the total cost over 10 years will be $40.6 billion with an average annual cost of $4.06 billion.
• ​Is there a phase in? Yes. Different parts of the rule are phased in at different times. 
  

1. The HPRD requirement. This portion of the rule has the longest phase in, which begins once the rule is finalized. For urban buildings, this requirement would be effective three (3) years after it becomes final, for rural buildings this requirement would be effective five (5) years after it becomes final.
2. The 24-hour RN requirement. The proposal requires that an RN be on site, 24 hours per day, for 7 days a week would take effect two (2) years after the publication of the final rule for urban facilities, and three (3) years after the publication of the final rule for rural facilities.
3. The facility assessment requirement. The proposal includes expanded facility assessment requirements, including using evidence-based methods and requiring facilities to develop a staffing plan to maximize recruitment and retention. This goes into effect 60 days after the publication of the final rule for all facilities. 

• What is the penalty for non-compliance? Penalties may include actions from termination of the provider agreement to civil money penalties to directed plan of correction or other enforcement actions.

• ​Are there disclosure requirements? Yes, CMS will require states to be transparent on the percentage of Medicaid payments spent on compensation for direct care workers and support staff for services in nursing and other facilities. This is like the Medicaid institutional payment transparency provision for specific Medicaid home and community-based services in the Ensuring Access to Medicaid Services proposed rule published in May.  

​WHAT’S NEXT? 

Within 48 hours our data team will have an analysis that shows the number of buildings nationwide that would be out of compliance under this proposal. Within a week we will have a building-by-building analysis. You will be able to check the status of your building on LTC Trend Tracker.

In the meantime, the Board will be meeting to finalize our lobbying strategy. It will include our comment campaign, lobbying members of Congress, and a robust media effort.

We have proven repeatedly that when we stick together and fight, we win. We will do it again this time. For that to happen, we need your help, and we all look forward to working with you on this important cause.
 
We are not against more staff. Obviously, we all want more staff. We are against proposals that punish providers who are trying to do the right thing and shut down facilities that can’t do the impossible. This proposal would not improve quality, it would decrease access to care.
 
We can’t let that happen and we won’t. 
 
Mark Parkinson