The Biden administration recently announced its much-anticipated proposed rule for implementing a minimum staffing “floor” for nursing homes in the United States and further launched a nursing home accountability initiative. These efforts are seismic for the long-term care nursing home community and will bring new challenges and scrutiny to a health industry sector battered with healthcare personnel shortages, pandemic recovery obstacles, changing reimbursement models, and regulatory scrutiny.
It is hard to argue, however, that these proposed changes are not critically necessary for nursing home residents and, if successful, will pioneer innovation in healthcare delivery for our most vulnerable citizens and provide a sustained growth path for healthcare professionals and an industry sector that is vitally needed.
KEY MANDATES
The proposed staffing rule from the Centers for Medicare & Medicaid Services (CMS) sets out three key mandates: (1) nursing homes will be required to have at least one registered nurse (RN) on site 24/7; (2) each resident of a nursing home will be required to have at least .55 hours of care from an RN per day; and (3) each resident will be required to have at least 2.45 hours of care from a nursing aid (NA) per day.
CMS and the White House anticipate that 36% of nursing homes will have to hire additional RNs to be in compliance with the proposed rule and 68% will have to hire additional NAs.
Notably, certain aspects of the proposed rule will have a staggered implementation timeline and not go into effect until two or three years after publication of the final rule:
We are proposing to stagger the implementation dates of these requirements sufficiently to allow facilities the time needed to prepare and be in compliance with the new requirements. Specifically, we propose that the RN on site, 24 hours per day, for 7 days a week would take effect 2 years after publication of the final rule; and we propose that the individual minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs would take effect 3 years after publication of the final rule. Under the proposal facilities in rural areas would be required to meet the proposed RN on site 24 hours per day, for 7 days a week, 3 years after publication of the final rule; and the proposed minimum standards of 0.55 HPRD for RNs and 2.45 HPRD for NAs would take effect 5 years after publication of the final rule.
88 Fed. Reg. 61,352 (Sept. 1, 2023).
The minimum standards are intended to address ongoing safety and quality concerns, revealed and exacerbated during the COVID-19 pandemic, that stem from chronic understaffing in nursing homes related to insufficient RNs and NAs. CMS noted that these staffing levels are minimums and it will expect facilities to staff above the baseline based on facility assessments and resident acuity levels.
To counter industry and health policy critics of these mandated staffing minimums who point to the well-known staffing shortage facing the US healthcare industry generally, the Biden administration simultaneously announced a partnership between CMS and the Health Resources and Services Administration (HRSA) that will invest of $75 million in scholarships and tuition reimbursement for workers to pursue careers as nursing home staff.
KEY TAKEAWAYS
More effort will be needed to achieve the staffing goals, but the proposed mandates are a start. While the pandemic revealed vulnerabilities in staffing and healthcare regulatory leadership, it also revealed that the post-acute industry has healthcare workers of immense courage, compassion, and dedication. The Biden administration proposal recognizes that this industry sector needs more of these workers and has a plan to invest in recruitment, training, and wage equity.
In addition to the proposed staffing rule, CMS will expand its audits of direct care staffing data and increase its analyses of state survey findings, focusing on incidences of resident harm including deficiency findings, overprescribing antipsychotic drugs, and emergency preparedness response protocols. There is an increased interest in nursing home ownership by the investor community and its impact on quality of care.
It is probable that this increased data analysis will provide CMS and relevant enforcement agencies, including the US Department of Justice (DOJ) and US Department of Health and Human Services Office of Inspector General (HHS-OIG), data to pursue investigations and enforcement actions under statutes such as the False Claims Act.
Indeed, HHS-OIG also announced it will be increasing its audits and oversight of nursing homes. What we know from decades of experience, however, is that punitive investigations are ineffective in raising the quality bar, and the False Claims Act is the wrong statute to address systemic healthcare quality issues.
As regulators and enforcers continue to pursue inadequate staffing and substandard care allegations, stakeholders should focus on staffing, infection control, wound care, use of chemical and other restraints, and emergency preparedness as a high priority.
Stakeholders should also take steps to ensure that (1) all required records and documentation, including records related to COVID-19 testing and infection control, are properly maintained in the case of any request for records from CMS, DOJ, and/or HHS-OIG; (2) reporting obligations are met; and (3) clinical staff are well trained.
There will be a 60-day comment period for the notice of proposed rulemaking, and comments must be submitted to the Federal Register no later than November 6, 2023. For more information on how to submit comments or to review the entire rule, visit the Federal Register.
