Regulators to force nursing homes to hire more

In the shadow of Rhode Island’s ongoing staffing shortage, the Center for Medicare and Medicaid Services (CMS) issued its 329-page final rule on Nursing Home Minimum Staffing Standards (CMS 3442-F) on April 22 in the Federal Rule.

CMS affirmed its commitment to hold nursing homes accountable for providing safe and high-quality care for the nearly 1.2 million residents living in Medicare-and Medicaid-certified long-term care facilities.

According to CMS, 46,000 public comments mitted in response to the posed rule. Central to this final rule are new comprehensive minimum nurse staffing requirements, which aim to significantly reduce the risk of residents receiving unsafe and low-quality care within nursing homes.

CMS say that central to its final rule are new comprehensive minimum nurse staffing requirements that would significantly reduce the risk of residents receiving unsafe and low-quality care within nursing homes. The agency is finalizing 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. Facilities are given the flexibility to use any combination of nurse staff (RN, licensed practical nurse [LPN] and licensed vocational nurse [LVN], or nurse aide) to account for the additional 0.48 HPRD needed to comply with the total nurse staffing standard.

CMS is also finalizing enhanced facility assessment requirements and a requirement to have an RN onsite 24 hours a day, seven days a week, to provide skilled nursing care.

This final rule provides a staggered implementation timeframe for facilities to meet the minimum nurse staffing standards and 24/7 RN requirement based on geographic location as well as possible exemptions for qualifying facilities for some parts of these requirements based on workforce unavailability and other factors. The requirements of this final rule prioritize safety and health care quality while taking into consideration the unique workforce challenges some nursing homes are facing, especially those operating in rural areas.

CMS will closely monitor and evaluate the provisions of this final rule, including but not limited to, the minimum staffing standards, the 24/7 RN requirement, the exemption process, and the definition of rural, as they are implemented over the next several years to determine whether any updates or changes are necessary in the future.

Additionally, to increase transparency related to compensation for workers, CMS will also require states to collect and report on the percent of Medicaid payments that are spent on compensation for direct care workers, and support staff, delivering care in nursing facilities and intermediate care facilities, for individuals with intellectual disabilities.

At press time, the RI Department of Health (RIDOH) had no comments about CMS’s new final rule released last week, say Joseph Wendelken, RIDOH’s public information officer. The state agency is reviewing the rule and assessing its im

Spact and applicability in Rhode Island,” he says.

With the final rules release, senior advocates and providers are expressing their opinion about its impact.

Former President Donald Trump, who is challenging President Joe Biden for the presidency, has not addressed quality of care in nursing homes with a formal position. Kathleen Heren, Rhode Island’s Ombudsman, speculates that by releasing the CMS mandate before the upcoming presidential election, President Biden is just trying “to establish a record” of enhancing quality of care in nursing homes.

“Nursing homes cannot find Registered nurses (RN), and Nursing Assistances to hire,” notes Heren. The CMS mandate will force nursing homes to downsize, like we have just seen happen at the Scandinavian Home,” she predicts. According to Heren, the final CMS rules do not include the minimum staffing of LPNs. More important, “it’s an unfunded mandate,” she says.

Gerontologist Deb Burton, MS, executive director of RI Elder Info, is pleased to see a Federal minimum staffing mandate of 3.48 hours of daily nursing care. “It’s important to understand mandates don’t make workers appear and a minimum staffing mandate is only an average amount of time allotted for care across all residents in the facility,” she says, noting that this rule doesn’t mean each resident will receive 3.48 hours of care each day.

According to the CMS Nursing Home Compare website, as of April 2024, there are 6 Rhode Island facilities that would not meet the lower federal minimum staffing mandate if it were enacted today. “The workforce shortage and the dire need to increase Medicaid reimbursements to attract and retain adequate staff with a proper wage are common topics of meetings,” says Burton.

“When workers say ‘It’s only me on the floor – do I help the resident eat their supper or take the other resident to the bathroom? I can’t do both,’ – we need to listen,” says Burton. “The new federal minimum staffing mandate is a good step forward, but we need more. One day it will likely be us waiting for that workers’ help,” she warns.

Like other RI senior advocates, Maureen Maigret, policy director for the Senior Agenda Coalition of RI, sees the importance of CMS releasing its final rules. “It is important that these regulations have been finalized as providing for minimum nurse staffing levels in nursing homes helps ensure residents across the country will receive quality and resident-centered care,” she says.

According to Maigret, Rhode Island has had a provision for 24/7 RN coverage even before the state’s minimum staffing law was passed so that is not a new requirement here. She pointed out the regulations will also promote transparency and accountability by requiring public reporting on how much of the Medicaid payments are spent on direct care staff and that the federal government has committed to invest over $75 Million in an initiative to increase the number of nurses working in nursing homes through such things as financial incentives for tuition reimbursement.

“We are dismayed that the Biden Administration is moving forward with this

HERB WEISS

Bone-size-fits-all staffing mandate,” says John E. Gage, President and CEO of the Rhode Island Health Care Association. “In the midst of a historic and deepening caregiver shortage, this unrealistic policy will put access to care at risk for countless seniors in Rhode Island and across the country,” he warns, noting that when nursing homes can’t find nurses and/ or certified nursing assistants (CNAs), they will be forced to downsize or, even worse, close their doors altogether, leaving seniors with fewer options to receive the care they need.

Like the 2021 RI staffing law, the Federal rule is an unfunded mandate, charges Gage. “Every nursing home wants more workers, but rather than blanket mandates from Washington, we need supportive policies and investments that will help us recruit and retain caregivers, he states.

According to Gage, nationally, the nursing home workforce has declined by 124,200 individuals (-7.8%) since the start of the pandemic. Rhode Island’s numbers are even worse, down 1,495 individuals (-15.3%). Gage calls on Congress to step up and support the bipartisan Protecting America’s Seniors’ Access to Care Act, which would prevent CMS from enforcing this unfunded and flawed mandate.

“Together with our national association, the American Health Care Association (AHCA), we will continue to fight for more common-sense solutions and do everything we can to preserve access to care for Rhode Island seniors,” says Gage.

“The good news about the Biden Administration’s final rule, there are phase-ins over multiple years that will provide an opportunity to challenge the mandates through legislation and/or possible AHCA litigation on the national level,” adds Gage. “The federal mandate highlights how much of an outlier RI’s staffing mandate is. The RI statute has the highest staffing metrics and the highest fines in the country – 10% above the federal standards. Without the Executive Actions of Governor McKee, RI nursing homes would be fined $90 million in the first full year of enforcement – devastating facilities and forcing further closures. RI excludes hours worked by administrative nurses from counting toward the RN metric, yet they are included in the federal standards. RI also excludes med techs’ and nurse aides in training’s hours from the CNA metric, while CMS includes them,” noted Gage.

Gage adds that the CMS final rules consider Rhode Island to be “urban.” As a result, the state has 2 years to phase-in the 24x7 RN requirement.

Rhode Island regulations and law have required 24x7 RN coverage in nursing homes for many decades, says Gage. “While challenging to maintain compliance given the shortage of registered nurses, this should not be a major concern for RI facilities,” he adds, noting that there will be 3 years to comply with the required 0.55 HPRD for RNs and 2.45 HPRD for CNAs.

Additionally, Gage says that there are also waiver opportunities in certain circumstances. “During the implementation phase, facilities and all stakeholders must be laser-focused on building a sufficient pipeline of qualified nurses and CNAs to the nursing home workforce,” he says.