What the Proposed CMS Staffing Mandate May Mean for Your Facility

Nurse caring for a resident in a nursing home

With the end of this fiscal year approaching, The Centers for Medicare and Medicaid Services (CMS) decided to set off its New Year’s fireworks a little early. Almost two weeks ago, it announced a proposed rule that would establish national minimum staffing standards for long-term care (LTC) facilities.

If it takes effect, the proposed CMS staffing mandate would be the first federal effort to improve safety and quality care through minimum staffing requirements for nursing homes. The move has its detractors who will surely be chiming in before the official comment period ends in early November. But where do things stand now — and what does all of this mean for healthcare facilities?

What Are the Proposed Minimum Nurse Staffing Ratios?

Citing the problem of chronic understaffing and the close correlation between staffing, quality of care, and improved health outcomes, the mandate would move beyond recommended ratios for nurse staffing to set baseline levels of HPRD, or hours per resident daily. CMS defines HPRD as the total number of hours worked by a type of nursing professional divided by the total number of residents. The proposed mandate would set the following requirements for long-term care facilities:

  • At least 0.55 HPRD for registered nurses (RNs)
  • At least 2.45 HPRD for nurse aids (NAs)
  • An onsite RN 24 hours per day, 7 days per week

Interestingly, these ratios are on the lower end of the spectrum that CMS has recommended in the past. In a 2001 report to Congress, CMS identified effective HPRD ranges for RNs at 0.55-0.75, and NAs at 2.4-2.8.

The proposed CMS staffing mandate also lists possible enforcement actions for facilities that are unwilling or unable to comply with the proposed ratios, if and when the mandate goes into effect. These actions could include the termination of the provider agreement, denial of payments under Medicare and Medicaid, and other civil penalties.

When Would The Mandate Take Effect?

As a proposed rule, the staffing mandate isn’t set in stone just yet. With the public comment period closing in early November, CMS and the Department of Health and Human Services (HHS) could still make changes. A final rule typically takes effect 30 days after it’s published, but facilities need not panic — the proposed staffing mandate as currently written would provide for an even longer timeframe for compliance.

According to the mandate, if a final rule is published, the HPRD requirements for RNs and NAs wouldn’t take effect for three years (five years for facilities in rural areas), with the requirement of 24/7 RN coverage in nursing homes not taking effect for two years (three years for facilities in rural areas). In other words, even if this rule moves forward, facilities won’t face a compliance crunch in Q1 of 2024, but would instead have some time to consider changes to staffing and put updated planning in place.

A Not So Helpful Leak…

The rollout for the proposed staffing mandate didn’t go off without a hitch. In the weeks leading up to the release, a study commissioned by CMS was leaked. The study’s findings identified benefits to increased staffing, but it wasn’t fully supportive of a federal staffing mandate.

The study found that the relationship of staffing to quality and safety varied by nurse type, increasing with certain RN staffing levels, but bearing no relationship to LPN staffing levels. However, the report ultimately concluded that current literature didn’t “provide a clear evidence basis for setting a minimum staffing level” — not the best way to introduce a mandate.

The report also estimated the cost of establishing certain minimum staffing requirements to be in the range of $1.5 to $6.8 billion. By some estimates, this would mean the nursing home industry would need to hire nearly 400,000 more workers, both to meet the CMS staffing mandate and to make up for jobs lost due to the COVID pandemic.

Who’s Upset — and Who Isn’t?

Given the leak of the report and the estimated costs to facilities — without any prospect of funding to support them — the proposed mandate’s rollout was met with a criticism from all sides. Opponents of nursing home staffing mandates pointed to the impact of the unfunded mandate on facilities, especially those in rural areas, while supporters of mandates questioned the effectiveness of setting the standards at the lower end of the HPRD spectrum.

Along with the criticism are concerns that if the proposed mandate takes effect, it could lead to ”profiteering” by nurse staffing agencies. With an estimated 75% of nursing homes needing more staff to meet a federal nurse staffing mandate during a nationwide nursing shortage, facilities would have to rely on staffing agencies to fill the void.

Many of these agencies are “1099” companies, meaning that they aren’t allowed to fully supervise and control the nursing professionals they provide to facilities. If they do, the agencies — and the facilities they support — could face claims of employee misclassification. Misclassification or inadequate supervision brings added legal risks for patients, nurses, and facilities, a burden that can compound the pressure of meeting any new federal staffing mandates.

What’s a Facility to Do?

With the fate of the proposed mandate still unclear, but the possibility of a significant increase in demand for healthcare staffing over the coming years, is there any light at the end of the tunnel for facilities?

At the end of the day, CMS staffing requirements for nursing homes are about ensuring appropriate staffing, safety, and quality of care for patients. While staffing agencies can fill the void, facilities also have the option to achieve these goals by working with a staffing partner.

What’s the difference? One business model exists to fill an immediate need. The other business model is based on a long-term relationship, designed to support facilities with a variety of hiring solutions which will be crucial for meeting unprecedented demand.

Ready to Move Beyond All the Industry Volatility?

Whether the CMS staffing mandate as proposed takes effect or not, the long-term care industry is still facing any number of challenges. At IntelyCare, we want to help insulate your facility from all the headwinds. With our wide range of comprehensive solutions, we can help you to not just meet a mandate, but to reach and maintain your optimal level of staffing and patient care.

Legal Disclaimer: This article contains general legal information, but it is not intended to constitute professional legal advice for any particular situation and should not be relied on as professional legal advice. Any references to the law may not be current as laws regularly change through updates in legislation, regulation, and case law at the federal and state level. Nothing in this article should be interpreted as creating an attorney-client relationship. If you have legal questions, you should seek the advice of an attorney licensed to practice in your jurisdiction.


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