CMS Releases Rule on SNF Staffing Mandate

Surprise! Surprise! Surprise! This morning, CMS dropped a proposed rule for a staffing mandate for SNFs. On Wednesday, I wrote about the delays (staffing mandate) and the information from a CMS contracted study completed by Abt and Associates. That post is here: https://wp.me/ptUlY-LM

The consensus around the staffing mandate issue is that CMS was bogged down by the harsh reality that a big step-up in staffing levels, no matter how desirable such a move would be to advocates and resident groups, was likely unattainable. The Abt study basically confirmed the same. It showed that while some improvements in care via reduced hospital and ED transfers were likely, the financial return was difficult to quantify and the costs to the industry, billions of more dollars (spending) annually.

CMS has for years been tinkering with a staffing mandate of approximately 4 hours per day. The Proposed Rule that dropped today seeks to impute a level of 3.0 hours per resident day. The mix is .55 hours of RN and 2.45 hours of CNA per resident, per day. Additionally, CMS is seeking to require that all facilities have an RN on-site, 24 hours per day, seven days per week. The implementation is staggered such that urban areas have a three-year window to comply and rural facilities, a four-year window. The full proposed rule is available for download here: CMS SNF Staffing Rule 9 23

CMS is proposing a hardship (temporary) waiver for facilities that cannot comply due to labor market conditions. Basically, the waiver is predicated as follows:

• Workforce unavailability based on facility location, as evidenced by either a medium (that is, 20 percent below the national average) or low (that is, 40 percent below national average) provider-to-population ratio for the nursing workforce, as calculated by CMS, by using the Bureau of Labor Statistics and Census Bureau data, or the facility is located at least 20 miles away from another LTC facility (as determined by CMS); and
• Good faith efforts to hire and retain staff through the development and implementation of a recruitment and retention plan; by documenting job postings, and job vacancies, including the number and duration of vacancies, job offers made, and competitive wage offerings, and
• A financial commitment to staffing by documenting the total annual amount spent on direct care staff.

CMS is also proposing that facilities use the required “facility assessment” process to develop a “person centered” staffing plan. Facility assessments are required to be completed annually by an SNF to assure that the facility has the resources and systems necessary to care for its residents as defined by needs/case-mix.

• Clarifying that facilities must use evidence-based methods when care planning for their residents, including consideration for those residents with behavioral health needs;
• Requiring that facilities use the facility assessment to assess the specific needs of each resident in the facility and to adjust as necessary based on any significant changes in the resident population;
• Requiring that facilities include the input of facility staff, including, but not limited to, nursing home leadership, management, direct care staff (i.e., nurse staff), representatives of direct care staff, and staff who provide other services; and,
• Requiring facilities to develop a staffing plan to maximize recruitment and retention of staff consistent with what was described in the President’s April Executive Order on Increasing Access to Higher Quality Care and Supporting Caregivers.