CMS Final SNF Staffing Rule

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Late yesterday, CMS released the draft of the Final Rule consistently defined as the “staffing mandate rule”. Earlier in the day, I wrote a post about the final staffing rule and the final Medicaid access rule. At the time, CMS had only notified everyone about the final rule(s) contents via a press release. The actual text is now public and available here: Final SNF Staffing Rule 4 22 24

The final rule text is 379 pages but (probably) only about half of the pages have meaningful content – other pages are regulatory language, text of the comments during the comment period, etc. From my review, the salient content elements SNFs need to pay attention to are as follows.

  • The rule updates and provides additional specificity regarding the regulatory element known as the Facility Assessment.
    • F838 §483.70(e) Facility Assessment: The facility must conduct and document a facility-wide assessment to determine what resources are necessary to care for its residents competently during both day-to-day operations and emergencies. The facility must review and update that assessment, as necessary, and at least annually. The facility must also review and update this assessment whenever there is, or the facility plans for, any change that would require a substantial modification to any part of this assessment.
    • Per CMS in the Final Rule…
      • Facilities must use evidence-based methods when care planning for their residents, including consideration for those residents with behavioral health needs.
      • Facilities must 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.
      • Facilities must include the input of the nursing home leadership, including but not limited to, a member of the governing body and the medical director; management, including but not limited to, an administrator and the director of nursing; and direct care staff, including but not limited to, RNs, LPNs/LVNs, and CNAs, and representatives of direct care staff as applicable. The SNF must also solicit and consider input received from residents, resident representatives, and family members.
      • Facilities are required to develop a staffing plan to maximize recruitment and retention of staff.
  • The Final Rule provides clarity to the gap between the 3.48 nursing hours per patient day requirement and the specific requirement that .55 of the PRD (or Resident Per Day – RPD) be RNs and 2.45 be CNAs, leaving a .48 per day gap. CMS indicates that the additional .48 can be made up of any combination of RN, LPN/LVN, CNA, or CMA (medication assistant).
  • With regard to the RN requirement on each shift, seven days per week, CMS has indicated that some of this time can be the hours of the Director of Nursing or other administrative nurse, provided that these hours allow for direct patient care.
  • CMS has provided a phase-in period for facilities to meet the staffing standards.  The periods differ for urban facilities vs. rural facilities.
    • For Urban facilities,
      • Phase 1 — Within 90 days of the final rule publication, facilities must meet the facility assessment requirements. 
      • Phase 2 — Within two years of the final rule publication, facilities must meet the 3.48 HPRD total nurse staffing requirement and the 24/7 RN requirement. 
      • Phase 3 — Within three years of the final rule publication, facilities must meet the 0.55 RN and 2.45 NA HPRD requirements.
    • For Rural facilities (as defined by OMB),
      • Phase 1 — Within 90 days of the final rule publication, facilities must meet the facility assessment requirements. 
      • Phase 2 — Within three years of the final rule publication, facilities must meet the 3.48 HPRD total nurse staffing requirement and the 24/7 RN requirement. 
      • Phase 3 — Within five years of the final rule publication, facilities must meet the 0.55 RN and 2.45 NA HPRD requirements.
  • CMS has provided hardship language or allowances for facilities incapable of meeting the staffing level standards (after the phase in-period). The waiver is temporary and conditional. The facility must provide evidence via documentation of efforts to recruit and maintain staff as well as the financial commitment made to recruit and retain staff.
    • The facility is located in an area where the supply of RN, NA, or total nurse staff is not sufficient to meet area needs as evidenced by the applicable provider-to-population ratio for nursing workforce (RN, NA, or combined licensed nurse and nurse aide), which is a minimum of 20% below the national average, as calculated by CMS using data from the U.S. Bureau of Labor Statistics and the U.S. Census Bureau.
    • The facility may receive an exemption from the total nurse staffing requirement of 3.48 HPRD if the combined licensed nurse and nurse aide to population ratio in its area is a minimum of 20% below the national average.
    • The facility may receive an exemption from the 0.55 RN HPRD requirement, and an exemption of eight hours a day from the RN on-site 24 hours per day for seven days a week requirement, if the RN to population ratio in its area is a minimum of 20% below the national average.
    • The facility may receive an exemption from the 2.45 NA HPRD requirement if the NA to population ratio in its area is a minimum of 20% below the national average.
  • Prior to being considered, the LTC facility must be surveyed for compliance with the LTC participation requirements. Facilities that are granted an exemption will be required to: 1) post a notice of its exemption status in a prominent and publicly viewable location in each resident facility; 2) provide notice of its exemption status, and the degree to which it is not in compliance with the HPRD requirements, to each current and prospective resident; and 3) send a copy of the notice to a representative of the Office of the State Long-Term Care Ombudsman. CMS will indicate if a facility has obtained an exemption on the Medicare.gov Care Compare website.
  • Facilities are not eligible for an exemption if any one of the following is true:
    • They have failed to submit their data to the Payroll Based Journal System.
    • They have been identified as a special focus facility (SFF).
    • They have been identified within the preceding 12 months as having: widespread, or a pattern of, insufficient staffing that resulted in actual harm to a resident; or an incident of insufficient staffing that caused or is likely to cause serious harm or death to a resident.

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