CMS Pushes Back on Criticism of Nursing Home Staffing Rule

CMS officials pushed back Tuesday on suggestions that their final rule on required staffing ratios in nursing homes would force nursing homes in underserved areas to close and make the current shortage of nursing home care worse.

On a press call, CMS Administrator Chiquita Brooks-LaSure explained why the agency issued the rule. "Over the last few years, I have personally heard feedback from thousands of clinicians, healthcare workers, advocates, and other partners, and most importantly, the people that are served by our program," she said. "We know that many people who live in nursing homes or need healthcare in their homes cannot consistently access the care they need. We've heard firsthand from nursing home residents who describe spending half of their days in bed, waiting for hours for help getting up. They described having to wait to use the restroom or seeing their fellow residents lose weight because there weren't enough nurses to help them."

"We've also heard from nursing homes and direct care workers about their lived experiences," she continued. "They shared that many new employees leave for other service industry jobs, where they can earn higher wages without the emotional and physical demands of nursing home care ... We must consistently connect people to high-quality care regardless of where they live or receive care, and this means setting a national baseline for nursing home staffing."

The "Total Nurse Staffing Standard"

Under the rule announced Monday, the agency requires nursing homes that participate in federal programs such as Medicare and Medicaid to meet a total nurse staffing standard of 3.48 hours per resident day (HPRD), which must include at least 0.55 HPRD of direct registered nurse (RN) care and 2.45 HPRD of direct nurse aide care, CMS stated in a fact sheet. Facilities may use any combination of nurse staff (RN, licensed practical nurse [LPN] and licensed vocational nurse, or nurse aide) to account for the additional 0.48 HPRD needed to comply with the total nurse staffing standard, the agency said.

The rule also requires nursing homes to have an RN on site 24 hours a day, 7 days a week, to provide skilled nursing care. For all the requirements, there are exceptions for facilities that are in areas with workforce shortages and that meet other criteria. However, while an estimated 25% of nursing homes would be eligible for exceptions, these are "limited, temporary exceptions," a CMS official said. "They require that the facility be in a workforce shortage area ... [and] they have to report information that proves that they are making good faith efforts to hire, and that includes the amount of their income that is being spent on wages, as well as the fact that they're making a good faith effort to hire by paying competitive wages."

Healthcare organizations were quick to pan the new rule. "CMS' one-size-fits-all minimum staffing rule for nursing homes creates more problems than it solves and could jeopardize access to all types of care across the continuum, especially in rural and underserved communities that may not have the workforce levels to support these requirements," Stacey Hughes, executive vice president of the American Hospital Association, said in a statement. In addition, "this final rule could exacerbate the already serious shortages of nurses and skilled healthcare workers across the care continuum. Strengthening the healthcare workforce requires investment and innovation, not inflexible mandates."

A First for the Federal Government

On the call, Jonathan Blum, principal deputy administrator and chief operating officer at CMS, said during a question-and-answer session that the rule represents the first time the federal government has created such a minimum standard. "States today have their own standards, and some do exceed what the federal government has put forward," he said. And when states set such standards, "we don't see the closures."

"The current status quo is hard for us to accept," he said. "We have nursing homes that are closing due to poor quality care, that don't have sufficient staff."

"We would [also] say that the rule's provisions are carefully calibrated and carefully phased in," Blum added. "We believe that with time and with that careful phase-in, that facilities can meet the requirements. While some facilities may have to add staff ... we very much believe these changes are very much affordable."

A CMS official went into more detail on the staffing requirement. "If you have a 100-bed facility, that facility needs to have about 10 or 11 CNAs [certified nurse assistants], about two or three RNs, and two more staff of any kind of [nursing personnel] -- an RN, a CNA, or an LPN -- to be able to provide that care and make the math work out," the official said.

The rule will require states to monitor the nursing homes to ensure that they're meeting the staffing requirements, and "we do recognize that that'll put more burden on the states. At the same time, we feel very confident that they will have the resources to enforce the requirements," a CMS official said.

Other Final Rules Announced

Also on Monday, CMS announced a final rule on Medicaid payment for home and community-based services (HCBS). "We're strengthening home and community-based services, empowering people to live at home while receiving skilled care," Brooks-LaSure said Tuesday. "Medicaid should meet people where they are, whether it's in a facility or in their home. Our enrollees should be able to count on getting high-quality care that they need and deserve."

Under the rule, state Medicaid programs and Medicaid managed care plans will be required to allocate at least 80% of Medicaid payments for HCBS to go directly to workers' pay. States must also publicly report on how they establish their HCBS waitlists.

Another final rule issued Monday addressed the problem of Medicaid and Children's Health Insurance Program enrollees who have to wait weeks and months for a doctor's appointment. The rule "will require that all states establish a maximum wait time not exceeding 15 days for enrollees to see their primary care and maternity care providers, and a maximum wait of 10 days for a behavioral healthcare appointment," Brooks-LaSure said. "We are excited to discuss the positive impact these new rules will have on millions of people and families."

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