[Federal Register Volume 88, Number 171 (Wednesday, September 6, 2023)]
[Proposed Rules]
[Pages 61352-61429]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18781]
[[Page 61351]]
Vol. 88
Wednesday,
No. 171
September 6, 2023
Part III
Department of Health and Human Services
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Centers for Medicare & Medicaid Services
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42 CFR Parts 438, 442, et al.
Medicare and Medicaid Programs; Minimum Staffing Standards for Long-
Term Care Facilities and Medicaid Institutional Payment Transparency
Reporting; Proposed Rule
Federal Register / Vol. 88 , No. 171 / Wednesday, September 6, 2023 /
Proposed Rules
[[Page 61352]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 438, 442, and 483
[CMS-3442-P]
RIN 0938-AV25
Medicare and Medicaid Programs; Minimum Staffing Standards for
Long-Term Care Facilities and Medicaid Institutional Payment
Transparency Reporting
AGENCY: Centers for Medicare & Medicaid Services (CMS), Department of
Health and Human Services (HHS).
ACTION: Proposed rule.
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SUMMARY: This proposed rule would establish minimum staffing standards
for long-term care facilities, as part of the Biden-Harris
Administration's Nursing Home Reform initiative to ensure safe and
quality care in long-term care facilities. In addition, this rule
proposes to require States to report the percent of Medicaid payments
for certain Medicaid-covered institutional services that are spent on
compensation for direct care workers and support staff.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, by November 6, 2023.
ADDRESSES: In commenting, please refer to file code CMS-3442-P.
Comments, including mass comment submissions, must be submitted in
one of the following three ways (please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-3442-P, P.O. Box 8016,
Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-3442-P, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: The Clinical Standard Group's Long
Term Care Team at [email protected] for information
related to the minimum staffing standards.
Anne Blackfield, (410) 786-8518, for information related to
Medicaid institutional payment transparency reporting.
SUPPLEMENTARY INFORMATION:
Inspection of Public Comments: All comments received before the
close of the comment period are available for viewing by the public,
including any personally identifiable or confidential business
information that is included in a comment. We post all comments
received before the close of the comment period on the following
website as soon as possible after they have been received: http://www.regulations.gov. Follow the search instructions on that website to
view public comments. CMS will not post on Regulations.gov public
comments that make threats to individuals or institutions or suggest
that the individual will take actions to harm the individual. CMS
continues to encourage individuals not to submit duplicative comments.
We will post acceptable comments from multiple unique commenters even
if the content is identical or nearly identical to other comments.
To assist readers in referencing sections contained in this
document, we are providing the following Table of Contents.
Table of Contents
I. Executive Summary
A. Purpose
B. Summary of Major Provisions
C. Summary of Cost and Benefits
II. Minimum Staffing Standards for Nursing Homes in Response to the
Presidential Initiative
A. Background
B. Provisions of the Proposed Regulations
III. Medicaid Institutional Payment Transparency Reporting Provision
IV. Collection of Information Requirements
V. Response to Comments
VI. Regulatory Impact Analysis
I. Executive Summary
A. Purpose
This proposed rule would establish minimum staffing standards to
address ongoing safety and quality concerns for the 1.4 million \1\
residents receiving care in Medicare and Medicaid certified Long-Term
Care (LTC) facilities. On February 28, 2022, President Biden announced
that CMS would propose minimum staffing standards that nursing homes
must meet, based in part on evidence from a new research study that
will focus on the level and type of staffing needed to ensure safe and
quality care.\2\ In addition, on April 18, 2023, President Biden issued
``Executive Order on Increasing Access to High-Quality Care and
Supporting Caregivers'',\3\ which directs the Secretary of HHS to
consider actions to encourage LTC facilities to reduce nursing staff
turnover that is associated with improving safety and quality of
care.4 5
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\1\ https://data.cms.gov/summary-statistics-on-use-and-payments/medicare-service-type-reports/cms-program-statistics-medicare-skilled-nursing-facility.
\2\ https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.
\3\ Executive Order on Increasing Access to High Quality Care
and Supporting Caregivers. White House. Accessed at https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/18/executive-order-on-increasing-access-to-high-quality-care-and-supporting-caregivers/. Published on April 18, 2023. Accessed on
April 19, 2023.
\4\ Zheng, Q, Williams, CS, Shulman, ET, White, AJ. Association
between staff turnover and nursing home quality--evidence from
payroll-based journal data. J Am Geriatr Soc. 2022; 70(9): 2508-
2516. doi:10.1111/jgs.17843.
\5\ Castle, Nicholas G, and John Engberg. ``Staff turnover and
quality of care in nursing homes.'' Medical care vol. 43,6 (2005):
616-26. doi:10.1097/01.mlr.0000163661.67170.b9.
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These safety and quality concerns stem, at least in part, from
chronic understaffing in LTC facilities, and are particularly
associated with insufficient numbers of registered nurses (RNs) and
nurse aides (NAs), as evidenced from, inter alia, a review of data
collected since 2016 and lessons learned during the COVID-19 Public
Health Emergency (PHE). Numerous studies, including our new research
study as well as existing literature, have shown that staffing levels
are closely correlated with the quality of care that LTC facility
residents receive, and with improved health outcomes. The minimum
staffing standards would also provide staff in LTC facilities the
support they need to safely care for residents, help prevent staff--
burnout, thereby reducing staff turnover, which can lead to improved
safety and quality for residents and staff. This proposed rule would
also promote public transparency related to the percent of Medicaid
payments for certain institutional services that are spent on
compensation to direct care workers and support staff.
B. Summary of Major Provisions
We are proposing to update the Federal participation ``Requirements
for Medicare and Medicaid Long Term Care Facilities'' minimum staffing
standards (``LTC requirements''). The updates to
[[Page 61353]]
the LTC requirements proposed in this rule would be used to survey
facilities for compliance and enforced as part of CMS's existing
survey, certification, and enforcement process for LTC facilities. In
addition, consistent with the President's strategic plan, we also
intend to display our determinations of facility compliance with the
minimum staffing standards on Care Compare. We welcome comments on the
most appropriate approach for doing so.
We are proposing to establish Federal minimum nurse staffing
standards for a number of reasons, including the growing body of
evidence demonstrating the importance of staffing to resident health
and safety, continued insufficient staffing, non-compliance by a subset
of facilities, the need to reduce variability in the minimum floor for
nurse-to-resident ratios across States by creating a consistent floor,
and, most importantly, to reduce the risk of residents receiving unsafe
and low-quality care.
The proposed regulatory updates are based on evidence we collected
using a multifaceted approach, which included conducting a new nursing
home staffing study, gathering feedback during listening sessions,
considering more than 3,000 comments received from the Fiscal Year 2023
Skilled Nursing Facility Prospective Payment System proposed rule
(FY2023 SNF PPS) request for information (RFI), assessing Payroll-Based
Journal (PBJ) System data on nursing home staffing, and reviewing the
existing literature.
Specifically, we propose to revise Sec. 483.35(b) to require an RN
to be on site 24 hours per day and 7 days per week to provide skilled
nursing care to all residents in accordance with resident care plans.
We also propose individual minimum staffing type standards, based on
case-mix adjusted data for RNs and NAs, to supplement the existing
``Nursing Services'' requirements at 42 CFR 483.35(a)(1)(i) and (ii) to
specify that facilities must provide, at a minimum, 0.55 RN hours per
resident day (HPRD) and 2.45 NA HPRD. We note that while the 0.55 and
2.45 HPRD standards were developed using case-mix adjusted data
sources, the standards themselves will be implemented and enforced
independent of a facility's case-mix. In other words, facilities must
meet the 0.55 RN and 2.45 NA HPRD standards, at a minimum, regardless
of the individual facility's patient case-mix. RN and NA staffing can
never be lower than these proposed minimum standards, and if the acuity
needs of residents in a facility require a higher level of care, a
higher RN and NA staffing level will also be required. CMS is also
seeking comments on whether in addition to the 0.55 RN and 2.45 NA HPRD
standards, a minimum total nurse staffing standard, discussed later in
the rule, should also be required. For compliance, hours per resident
day (HPRD) is defined as staffing hours per resident per day which is
the total number of hours worked by each type of staff divided by the
total number of residents as calculated by the CMS. As further
described below, the proposed minimum staffing standard is supported by
literature evidence, analysis of staffing data and health outcomes,
discussions with residents, staff, and industry \6\ and other factors.
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\6\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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We note that each of the minimum staffing requirements
independently supports resident health and safety. Therefore,
compliance with the 24/7 RN requirement does not imply compliance with
the minimum 0.55 RN HPRD and 2.45 NA HPRD requirements or vice versa.
Specifically, as discussed elsewhere in this rule, the presence of an
RN in a LTC facility on a 24-hour basis improves overall quality of
care. Similarly, but separately, a minimum number of RN and NA hours
per resident per day improve overall quality of care. Both
independently and collaboratively, these requirements would support
compliance with statutory mandates to provide services to attain or
maintain the highest practicable physical, mental, and psychosocial
well-being of each resident, in accordance with a written plan of care.
As noted elsewhere, this proposal is informed by multiple sources
of information, including the 2022 Nursing Home Staffing Study, more
than 3,000 public comment submissions, academic and other literature,
PBJ System data, and detailed listening sessions with residents and
their families, workers, health care providers, and advocacy groups. We
recognize that some of the materials we have relied upon offer support
for a higher minimum HPRD standard. For several reasons discussed later
in this proposed rule, including the importance of setting achievable
staffing targets as the long-term care sector recovers from the effects
of the COVID-19 pandemic and the desire to preserve resident access to
care as the sector expands hiring to meet staffing standards, we are
proposing a set of policies that balance the urgent need to improve
resident safety and quality of care alongside these practical
considerations. The policies include minimum HPRD standards for direct
care by nursing staff, required access to an RN 24 hours per day 7 days
per week, and enhanced facility staffing assessments.
For example, the 2022 Nursing Home Staffing Study found that a
total nurse staffing level of 3.67 or 3.88 HPRD was linked with
additional facilities improving quality and safety relative to current
low performers, and that total nurse staffing levels between 3.8 HPRD
and 4.6 HPRD (including 1.4 licensed nurse HPRD) were linked with
reductions in the amount of delayed or omitted clinical care. Our
proposal squares these associations between higher HPRD nurse staffing
levels and better care outcomes with the goal of establishing
implementable minimum standards that can substantially improve quality
and safety at all LTC facilities in the near-term. We also considered
variation and contradiction between different information sources,
including the 2022 Nursing Home Staffing Study, namely regarding the
benefits of a staffing standard inclusive of or specific to LPN/LVNs.
We further considered the benefits of a requirement for 24/7 on-site RN
staffing and strengthened facility staffing assessments, which under
this proposed rule apply independently of the HPRD requirements.
The resulting, evidence-based proposal appropriately prioritizes
quality and safety of care gains from establishing minimum standards
for RNs and NAs, with a particular emphasis on the direct care
delivered at the bedside by NAs, and effective implementation of these
new requirements. As noted elsewhere, if finalized, these new required
floors would increase staffing in more than 75 percent of nursing
facilities nationwide, and the proposed NA and RN HPRD requirements
exceed those of nearly all States. We remain committed to continued
examination of staffing thresholds, including careful work to review
quality and safety data resulting from initial implementation of
finalized policies, and robust public engagement. Should subsequent
data indicate that additional increases to staffing minimums would be
warranted and feasible, we anticipate that we will revisit the minimum
staffing standards to shift them toward the higher ranges supported by
the evidence, such as those described above, with continued
consideration of all relevant factors.
We also propose to revise the existing Facility Assessment
requirements at Sec. 483.70(e) by moving the provisions to a
standalone section and modifying the
[[Page 61354]]
requirements to ensure that facilities have an efficient process for
consistently assessing and documenting the necessary resources and
staff that the facility requires to provide ongoing care for its
population that is based on the specific needs of its residents.
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.
Exemption from the proposed minimum standards of 0.55 HPRD for RNs
and 2.45 HPRD for NAs would be available only in limited circumstances,
where all four of the following criteria are met. The four exemption
criteria are: (1) where workforce is unavailable, or the facility is at
least 20 miles from another long-term care facility, as determined by
CMS; (2) the facility is making a good faith effort to hire and retain
staff; (3) the facility provides documentation of its financial
commitment to staffing; and (4) the facility has not failed to submit
PBJ data in accordance with re-designated 483.70(p), is not a Special
Focus Facility (SFF); has not been cited for widespread insufficient
staffing with resultant resident actual harm or a pattern of
insufficient staffing with resultant resident actual harm, as
determined by CMS; and has not been cited at the ``immediate jeopardy''
level of severity with respect to insufficient staffing within the 12
months preceding the survey during which the facility's non-compliance
is identified.
If finalized, enforcement actions, also called remedies, would be
taken against LTC facilities that are not in compliance with these
Federal participation requirements. The remedies CMS may impose
include, but are not be limited to, the termination of the provider
agreement, denial of payment for all Medicare and/or Medicaid
individuals by CMS, and/or civil money penalties.
We are also proposing new regulations at 42 CFR 442.43 (with a
cross-reference at 42 CFR 438.82) that would require that State
Medicaid agencies report on the percent of payments for Medicaid-
covered services in nursing facilities and intermediate care facilities
for individuals with intellectual disabilities (ICF/IIDs) that are
spent on compensation for direct care workers and support staff. This
proposal is designed to inform efforts to address the link between
sufficient payments being received by the institutional direct care and
support staff workforce and access to and, ultimately, the quality of
services received by Medicaid beneficiaries. Taken together, we believe
that these proposals will improve safety and quality of care for
residents in Medicare and Medicaid certified LTC facilities and
Medicaid certified ICF/IIDs.
C. Summary of Cost and Benefits
Table 1--Cost and Benefits
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Provision description Total transfers/costs
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Comprehensive Staffing Requirement for Without accounting for any
LTC Facilities. exemptions, we estimate that
the overall economic impact
for the proposed minimum
staffing requirements for LTC
facilities (that is,
collection of information
costs and compliance with the
24/7 RN, facility assessment,
and minimum 0.55 RN and 2.45
NA HPRD requirements), which
includes staggered
implementation of the
requirements, would result in
an estimated cost of
approximately for $32 million
in year 1; $246 million in
year 2; $4 billion in year 3;
with costs increasing to $5.7
billion by year 10. We
estimate the total cost over
10 years will be $40.6
billion, which was derived
from FY 2021 Part V of the
Medicare Cost Report. LTC
facilities would be expected
to bear the burden of these
costs, unless payors increase
rates to cover cost.
Quantified benefits include
but are not limited to,
increased community
discharges, reduced
hospitalizations, and
emergency department visits,
with a minimum estimated
savings of gross costs of $318
million per year for Medicare
starting in year 3. Various
categories of other important
but hard to quantify benefits
include reduced staff burnout
and turnover, and increased
safety and quality of care for
LTC residents. Lack of
quantification is also
noteworthy as regards key
categories of costs.
Medicaid Institutional Payment The overall economic impact for
Transparency Reporting. the proposed reporting
requirement is a one time cost
of $38 million and ongoing
annual costs of $18 million
per year.
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II. Minimum Staffing Standards for Long-Term Care Facilities
A. Background
1. Statutory Authority and Regulatory Requirements for Direct Care
Nurse Staffing in Long-Term-Care (LTC) Facilities
Sections 1819 and 1919 of the Social Security Act (the Act) set out
regulatory requirements for Medicare and Medicaid long-term care
facilities, respectively. Specific statutory language at sections
1819(d)(4)(B) and 1919(d)(4)(B) of the Act permit the Secretary of the
Department of Health and Human Services (the Secretary) to establish
any additional requirements relating to the health, safety, and well-
being \7\ of residents in skilled nursing facilities (SNF) and nursing
facilities (NF), as the Secretary finds necessary. This provision and
other statutory authorities set out in section 1819 and
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1919 of the Act provide CMS with the authority to issue a regulation
revising the existing requirements and to mandate a staffing minimum
for nursing care. Under sections 1866 and 1902 of the Act, providers of
services in Long Term Care (LTC) facilities seeking to participate in
the Medicare or Medicaid program, or both, must enter into an agreement
with the Secretary or the State Medicaid agency, respectively. LTC
facilities seeking to be Medicare or Medicaid providers of services
must be certified as meeting Federal participation requirements. These
Federal participation requirements are the basis for survey activities
in LTC facilities for ensuring residents' minimum health and safety
requirements are met and maintained, to receive payment and remain in
the Medicare or Medicaid program or both. LTC facilities include SNFs
for Medicare and NFs for Medicaid. The Federal participation
requirements for SNFs, NFs, or dually certified facilities, are
codified in the implementing regulations at 42 CFR part 483, subpart B.
In addition to those provisions, sections 1819(b)(1)(A) and
1919(b)(1)(A) of the Act require that a SNF or NF must care for its
residents in such a manner and in such an environment as will promote
maintenance or enhancement of the safety and quality of life of each
resident. Section 1819(b)(4)(C)(i) of the Act requires that a SNF must
provide 24-hour licensed nursing services, sufficient to meet the
nursing needs of its residents, and must use the services of a
registered professional nurse at least 8 consecutive hours a day. These
provisions are largely paralleled at section 1919(b)(4)(C)(i) of the
Act for NFs. Sections 1819(f)(1) and 1919 (f)(1) of the Act require
that the Secretary assure that requirements which govern the provision
of care in skilled nursing facilities under this title, and the
enforcement of such requirements, are adequate to protect the health,
safety, welfare, and rights of residents and to promote the effective
and efficient use of public moneys.
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\7\ Section 1819(d)(4)(B) of the Act contains the word ``well-
being'', which does not appear in section 1919(d)(4)(B). We do not
interpret the presence of this word as requiring separate regulatory
treatment of Medicare and Medicaid long term care facilities.
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In addition, sections 1819(b)(2) and 1919(b)(2) of the Act require
that a SNF or NF provide services to attain or maintain the highest
practicable physical, mental, and psychosocial well-being of each
resident, in accordance with a written plan of care. The plan of care
must describe the medical, nursing, and psychosocial needs of the
resident and how the needs will be met. The plan of care is developed
with the resident or resident's family or legal representative, and by
a team which includes the resident's attending physician and an RN with
responsibility for the resident. The plan of care should be
periodically reviewed and revised by the team after required
assessments. Sections 1819(b)(3) and 1919(b)(3) of the Act require that
a SNF or NF conduct a comprehensive, accurate, standardized,
reproducible assessment of each resident's functional capacity.
Assessments are required to be conducted or coordinated by a registered
nurse at specified frequencies.
The participation requirements for LTC facilities (Federal
requirements) are set forth at Sec. Sec. 483.1 through 483.95. In
general, the health and safety standards for LTC facilities address
facility administration, resident rights, care planning, quality
assessment, performance improvement, services provided, emergency
preparedness, as well as staffing requirements. Federal requirements
state that LTC facilities must use the services of a registered nurse
(RN) for at least 8 consecutive hours a day, 7 days a week (Sec.
483.35(b)(1)), and must provide the services of ``sufficient numbers''
of licensed nurses and other nursing personnel, which includes but is
not limited to nurse aides (NAs), 24 hours a day to provide nursing
care to all residents in accordance with the resident care plans (Sec.
483.35(a)(1)). The LTC facility must also designate an RN to serve as
the director of nursing (DON) on a full-time basis (Sec.
483.35(b)(2)).
While these Federal requirements do specify a specific number of
hours that these licensed nurses and other nursing personnel must be
available, there is no requirement that those hours be specifically
dedicated to direct resident care. With respect to staffing
requirements specific to individual residents, such as RN staffing
levels per resident, Federal regulations currently require that
facilities provide staff sufficient to ``assure resident safety and
attain or maintain the highest practicable physical, mental, and
psychosocial well-being of each resident''. Facilities should determine
whether this is met through ``resident assessments and individual plans
of care and considering the number, acuity, and diagnoses or the
facility's resident population'' (Sec. Sec. 483.35 and 483.70(e)).
2. The Need for a Minimum Nurse Staffing Requirement in LTC Facilities
On October 4, 2016, we issued a final rule titled, ``Medicare and
Medicaid Programs; Reform of Requirements for Long-Term Care
Facilities'' (81 FR 68688). This final rule significantly revised the
list of requirements that LTC facilities must meet to participate in
the Medicare and Medicaid programs. Prior to the final rule, LTC
facilities' requirements had not been comprehensively reviewed and
updated since 1991 (56 FR 48826, September 26, 1991), despite
substantial changes in service delivery in this setting. The final rule
included revisions that reflect advances in the theory and practice of
LTC service delivery and safety. The various revisions sought to
achieve broad-based improvements in the quality of care provided in LTC
facilities and in resident safety. As part of this 2016 final rule, we
revised LTC facilities requirements to include competency requirements
for determining the sufficiency of nursing staff, based on a facility
assessment requirement that LTC facilities must conduct to determine
what resources are needed to competently care for their residents
during both day-to-day operations and emergencies. In the 2015 proposed
rule, we included a robust discussion regarding the long-standing
interest in increasing the required hours of nurse staffing per day and
the various literature surrounding the issue of minimum nurse staffing
standards in LTC facilities (see 80 FR 42199). In the 2016 final rule,
we also included a discussion of the feedback received regarding our
competency-based staffing approach (see 81 FR 68688). At the time, we
highlighted the importance of establishing national staffing standards
to promote safe, high- quality care for residents in LTC facilities and
our desire to further explore potential options, however we noted that
we needed additional evidence before pursuing potential requirements.
We acknowledged that additional literature evidence along with data
from sources such as Payroll Based Journal (PBJ) System would be
helpful in determining if and what staffing levels should be
established as minimum staffing standards to improve safety and the
quality of care.\8\ Additionally, the availability of PBJ System data
is essential to adequately enforcing oversight of minimum staffing
standards. Since issuing the 2016 final rule and establishing a
competency-based approach to staffing in the list of LTC requirements,
we have collected several years of mandated PBJ System data and new
evidence from the literature.
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\8\ https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Staffing-Data-Submission-PBJ.
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[[Page 61356]]
Additionally, as a part of the FY 2023 Skilled Nursing Facility
Prospective Payment System Proposed Rule Request for Information (FY
2023 SNF PPS RFI) discussed later in this proposed rule, commenters
provided examples of ongoing quality and safety concerns within
understaffed LTC facilities. These included, but are not limited to,
residents going entire shifts without receiving toileting or days
without bathing assistance, increases in falls, residents not receiving
basic feeding or changing services, and even abuse in cases where no
one was watching. The 2022 Nursing Home Staffing Study (also discussed
later in this proposed rule) corroborated these comments and identified
that basic care tasks, such as bathing, toileting, and mobility
assistance, are often delayed when LTC facilities are understaffed.
Interviews with various nurse staff highlighted ongoing concerns that
care is often rushed, including for high-acuity residents, which can
often lead to errors or safety issues.
The COVID-19 Public Health Emergency (PHE) highlighted and
exacerbated the long-standing concerns with inadequate staffing in LTC
facilities. However, the COVID-19 PHE also yielded evidence that
appropriate staffing made a difference as a part of the overall
response to the COVID-19 PHE in LTC facilities. The Centers for Disease
Control and Prevention (CDC) noted that nursing home residents were at
high risk for infection, serious illness, and death from the COVID-19
infection and Medicare beneficiaries were disproportionately impacted
by the COVID-19 infection, with 76 percent of COVID-19 related deaths
attributed to the people aged 65 years and older by the end of 2021.\9\
One study looking at 4,254 LTC facilities across eight States found
that there were fewer COVID-19 cases in LTC facilities with four or
five stars for nurse staffing in the Five Star Quality Rating System
than in counterpart facilities with one to three stars for
staffing.\10\ These findings suggest that LTC facilities with low nurse
staffing levels may have been more susceptible to the spread of the
COVID-19 infection. Findings from a recent 2020 study involving all 215
nursing homes in Connecticut revealed that a 20-minute increase in RN
time spent providing direct care to residents was associated with 22
percent fewer confirmed cases of COVID-19 and 26 percent fewer COVID-19
related deaths.\11\ These findings suggest that there is a positive
relationship between the hours of direct care that RNs provide and
infection transmission in LTC facilities.
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\9\ March 2022 Report to the Congress: Medicare Payment Policy,
MEDPAC.
\10\ Figueroa JF, Wadhera RK, Papanicolas I, et al. Association
of Nursing Home Ratings on Health Inspections, Quality of Care, and
Nurse Staffing With COVID-19 Cases. JAMA. 2020;324(11):1103-1105.
doi:10.1001/jama.2020.14709.
\11\ https://agsjournals.onlinelibrary.wiley.com/doi/epdf/10.1111/jgs.16689.
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Workforce challenges have contributed to understaffing and nurse
burnout. The lack of adequate staffing impedes staff members' ability
to devote adequate time and attention to each resident. One study
looked at the impact of nurse burnout on organization and position
turnover. Findings indicated that 54 percent of the nurses sampled
suffered from moderate burnout and the impact of burnout on
organizational turnover was significant.\12\ While workforce challenges
have existed for years, and have many contributing factors, interested
parties have reported that the COVID-19 PHE exacerbated the problem as
many long-term care facilities experienced high worker turnover.
Potential factors contributing to this turnover include higher rates of
worker reported-stress; an inability of some workers to return to their
positions held prior to the pandemic (for instance, due to difficulty
accessing child care or concerns about contracting the COVID-19
infection for people with higher risk of severe illness); high rates of
mortality among long-term- care workers; and lower pay and job quality
in long-term care settings relative to others, such as more competitive
wage increases in retail and other industry jobs that tend to draw from
the same pool of workers.13 14 15 Although the COVID-19 PHE
has officially ended, the long-term care nursing workforce has been
slower to recover than the nursing workforce in other healthcare
settings, although it has steadily increased over the past year and a
half.16 17 Demand for direct care workers is also expected
to continue rising due to the growing needs of the aging
population.18 19
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\12\ Kelly LA, Gee PM, Butler RJ. Impact of nurse burnout on
organizational and position turnover. Nurs Outlook. 2021 Jan-
Feb;69(1):96-102. doi: 10.1016/j.outlook.2020.06.008. Epub 2020 Oct
4. PMID: 33023759; PMCID: PMC7532952.
\13\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI. Accessed at http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\14\ Gasdaska, A., Segelman, M., Porter, K.A., Huber, B., Feng,
Z., Barch, D., Squillace, M., Dey, J., & Oliveira, I. Nursing Home
Staffing Disparities were Exacerbated during the COVID-19 Pandemic
in 2020 (Research Brief). Washington, DC: Office of the Assistant
Secretary for Planning and Evaluation, U.S. Department of Health and
Human Services. September 12, 2022. Accessed at https://aspe.hhs.gov/sites/default/files/documents/e37945b7d88efb005839a876660a59fb/nh-staffing-disparities-brief.pdf.
\15\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing Facility
Staffing Shortages During the COVID-19 Pandemic. Apr 04, 2022.
Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\16\ Refer, for example, to a report from the Kaiser Family
Foundation indicating that as of March 20, 2022, 28% of nursing
facilities reported a staffing shortage, as reported in Ochieng, N.,
Chidambaram, P., Musumeci, M. Nursing Facility Staffing Shortages
During the COVID-19 Pandemic. Apr 04, 2022. Kaiser Family
Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic.
\17\ https://data.bls.gov/timeseries/CES6562300001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true.
\18\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\19\ Centers for Medicare & Medicaid Services. November 2020.
Long-Term Services and Supports Rebalancing Toolkit. Accessed at
https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltss-rebalancing-toolkit.pdf.
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The studies discussed in this section, corroborated by public
comment submissions, input provided through listening sessions, and the
2022 Nursing Home Staffing Study, demonstrate the consequences of
understaffing on resident health and safety. Yet, ongoing insufficient
staffing as well as the widespread variability in existing minimum
staffing standards across the United States (for example, 38 States and
the District of Columbia have minimum nursing staffing standards;
however, there are significant variations in their requirements)
highlights the need for national minimum staffing standards for direct
care in LTC facilities.
Chronic understaffing continues in LTC facilities, and evidence
demonstrates the benefits of increased nurse staffing in these
facilities. For example, a report by the Office of the Inspector
General (OIG) highlighted that in 2018, roughly 7 percent of nursing
homes failed to provide 8 hours per day of RN staffing on at least 30
total days during the year.\20\ Some studies have demonstrated that
increased staffing levels were specifically beneficial to vulnerable
subpopulations in nursing homes, such as residents with dementia or
Alzheimer's disease. One cross sectional study of long-stay residents
with Alzheimer's disease and related dementias found that residents in
[[Page 61357]]
nursing homes that had higher licensed nurse staffing levels had better
end-of-life care and were less likely to experience potentially
avoidable hospitalizations.\21\ Yet, the literature evidence suggests
that staffing levels within facilities across the United States vary
considerably, with less staffed facilities more likely to be for--
profit, larger, rural, and have a higher share of Medicaid residents.
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\20\ Office of Inspector General (OIG), Some Nursing Homes'
Reported Staffing Levels in 2018 Raise Concerns; Consumer
Transparency Could Be Increased, OEI-04-18-00451, August 2020.
https://oig.hhs.gov/oei/reports/oei-04-18-00450.asp.
\21\ Jessica Orth, Yue Li, Adam Simning, Sheryl Zimmerman,
Helena Temkin-Greener, End-of-Life Care among Nursing Home Residents
with Dementia Varies by Nursing Home and Market Characteristics
Journal of the American Medical Directors Association, Volume 22,
Issue 2, 2021, Pages 320-328.e4, ISSN 1525-8610, https://doi.org/10.1016/j.jamda.2020.06.021.
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Finally, multiple studies have shown that nursing home quality is
generally lower in LTC facilities that serve high proportions of
minority residents.22 23 24 Facilities that have a higher
proportion of minority residents tend to have limited clinical and
financial resources, low nurse staffing levels, and a high number of
care deficiency citations.25 26 Furthermore, disparities in
safety and quality care exist between LTC facilities with a high number
of Medicaid residents and LTC facilities that have a high number of
Medicare residents.\27\ These disparities can contribute to differences
in quality across facilities' sites.\28\
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\22\ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3805666/.
\23\ https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4108174/.
\24\ https://onlinelibrary.wiley.com/doi/epdf/10.1111/1475-6773.12079.
\25\ https://www.jamda.com/article/S1525-8610(21)00243-7/
fulltext.
\26\ https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2015.0094.
\27\ Mor, Vincent et al. ``Driven to tiers: socioeconomic and
racial disparities in the quality of nursing home care.'' The
Milbank quarterly vol. 82,2 (2004): 227-56. doi:10.1111/j.0887-
378X.2004.00309.x.
\28\ https://www.healthaffairs.org/doi/full/10.1377/hlthaff.2015.0094.
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As such, we believe that national minimum staffing standards in LTC
facilities and the adoption of a 24/7 RN and enhanced facility
assessment requirements (as discussed later in this proposed rule),
will help to advance equitable, safe, and quality care for all
residents. Specifically, we propose individual minimum nurse staffing
standards of 0.55 hours per resident day (HPRD) for RNs and 2.45 HPRD
for NAs, that were developed using case-mix adjusted data sources.
There were several considerations that helped us arrive at these
proposed standards (discussed in detail later in this proposed rule).
First, the evidence and findings from the 2022 Nursing Home Staffing
Study demonstrated that there was a statistically significant
difference in safety and quality care at 0.45 HPRD for RNs and higher
including 0.55 HPRD; there was a statistically significant difference
in safety and quality care at 2.45 HPRD and higher for NAs. Second, we
evaluated existing State requirements and note that the proposed RN
requirement of 0.55 HPRD is higher than every State and only lower than
the District of Columbia (DC) based on September 2022 data. Third, we
aimed to strike an appropriate balance between cost and benefit that
would yield the strongest improvements in quality and safety for
residents. We are not proposing minimum staffing standards based on
HPRD for licensed nurses, that is, RNs plus LPN/LVNs, nor for total
nurse staffing, that is, RNs, LPN/LVNs, and NAs because of evidence in
the literature described below.
This proposed policy is based on statistical evidence from clinical
settings which suggests that more positive clinical outcomes are
associated with increasing the number of RNs and NAs. We are not
setting a minimum staffing standard for LPN/LVNs. In addition, as noted
in the next section, it has been reported in the literature that LPN/
LVNs may find themselves practicing outside their scope of practice
when there is not sufficient RN staffing in a facility to provide
supervision. This is concerning because LPN/LVNs require an RN or a
physician's supervision to practice. Furthermore, total licensed nurse
staffing standards may ensure adequate levels of licensed nurse
staffing and allow nursing homes the flexibility to substitute nurse
type for example LPN/LVNs for RNs, or NAs for LPN/LVNs, but may result
in compromising the safety and quality of care. Multiple studies have
found no evidence of a consistent relationship of quality and safety
with LPN staffing.\29\ First, literature evidence suggests that there
is a negative correlation between LPN and RN staffing, indicating that
nursing homes with higher LPN staffing levels tend to have lower RN
staffing levels.\30\ Second, the 2022 Nursing Home Staffing Study did
not demonstrate an association between LPN/LVNs' HPRD, at any level,
and safe and quality care.\31\
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\29\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
\30\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
\31\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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Many studies indicate that consistent, adequate nurse staffing is
correlated with resident health and safety, but we seek additional
information to make fully informed policy decisions. We welcome input
from interested parties on the considerations and proposals discussed
in this rule, and other comments that may be relevant. We encourage
commenters to submit evidence and data to support any recommendations
to the extent possible. We continue to seek additional information that
supports our efforts for improving the safety and quality of care for
residents within LTC facilities, including feedback on how to improve
care transitions and discharge planning, such as information about and
assistance with programs that assist with community placements.
We are soliciting comments and recommendations in this area and
have also included specific information requests that are embedded
throughout this rule regarding certain proposals. We seek this
information in anticipation that additional comments and
recommendations will assist us in ensuring that we finalize appropriate
minimum staffing standards to ensure the health and safety of residents
and provide staff the support they need to care for residents while
also considering the limited resources including the local supply of
RNs and NAs, that may exist as the long-term care sector recovers from
the COVID-19 PHE and an increased demand due to a growing older
population.
3. CMS Actions and Key Considerations To Inform Mandatory Minimum
Staffing Standards
In February 2022, President Biden announced a comprehensive set of
reforms aimed at improving the safety and quality of care within the
nation's nursing homes. One key initiative within the Biden-Harris
Administration's strategy is to establish a minimum nursing home
staffing requirement for LTC facilities participating in Medicare and
Medicaid.\32\ Establishing minimum staffing standards improves the
likelihood that all nursing home residents are provided safe, high-
quality
[[Page 61358]]
care, and that workers have the support they need to provide high-
quality care.
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\32\ https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.
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To help inform our efforts in establishing consistent and broadly
applicable national minimum staffing standards, we launched a multi-
faceted approach aimed at determining the minimum level and type of
staffing needed to enable safe and quality care in LTC facilities. This
effort included issuing the FY2023 SNF PPS RFI,\33\ hosting listening
sessions with various interested parties, and conducting a 2022 Nursing
Home Staffing Study, which builds on existing evidence and several
research studies using multiple data sources. In addition to launching
our multi-faceted approach, we considered how any potential minimum
staffing standards affect other CMS programs and/or initiatives as well
as the enforceability of such standards. Our strategic approach and
considerations are discussed later in this section.
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\33\ Medicare Program; Prospective Payment System and
Consolidated Billing for Skilled Nursing Facilities; Updates to the
Quality Reporting Program and Value-Based Purchasing Program for
Federal Fiscal Year 2023; Request for Information on Revising the
Requirements for Long-Term Care Facilities To Establish Mandatory
Minimum Staffing Levels. A Proposed Rule by the Centers for Medicare
& Medicaid Services on 04/15/2022 https://www.federalregister.gov/documents/2022/04/15/2022-07906/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities.
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a. Request for Information in the FY 2023 Skilled Nursing Facility
Prospective Payment System Proposed Rule (FY 2023 SNF PPS RFI)
We published the FY 2023 SNF PPS RFI in April 2022, soliciting
public comments on minimum staffing standards. In response to the FY
2023 SNF PPS RFI, we received over 3,000 comments from a variety of
parties interested in addressing LTC facilities' issues including
advocacy groups, long-term care ombudsmen, industry associations
(providers), labor unions and organizations, nursing home residents,
staff and administrators, industry experts, researchers, family
members, and caregivers of residents in LTC facilities.
Notably, industry associations and resident advocates expressed
divergent views on the establishment of minimum staffing standards.
Resident advocacy groups and family members of residents were strongly
supportive of establishing minimum staffing standards, while industry
and provider groups expressed significant concern and opposition to
such standards.
Commenters supporting the establishment of minimum staffing
standards voiced safety concerns regarding residents not receiving
adequate care due to chronic understaffing in facilities. For example,
residents going entire shifts without receiving toileting assistance,
which can lead to an increase in falls or the development or worsening
of pressure ulcers. Commenters noted that NAs barely have time to get
each resident dressed, fed, and bathed; that residents lie for hours in
wet and soiled diapers; that residents who need help to eat struggle to
feed themselves; and that residents suffer abuse from staff and other
residents because no one is watching. Commenters also shared stories of
residents wearing the same outfit for a week without a change of
clothing or a shower. Commenters highlighted the contribution of
facility staff and attributed the lack of quality care to insufficient
staffing levels.
Commenters also offered recommendations for implementing minimum
staffing standards including staffing with a RN on every shift. Some
commenters suggested that CMS focus on implementing an acuity (that is,
the medical complexity and needs of a resident) staffing model per
shift as part of any minimum staffing standards. Others recommended
that minimum staffing standards be established for residents with the
lowest care needs, assessed using the Minimum Data Set (MDS) 3.0
assessment forms, citing concerns that acuity-based minimum standards
will be more susceptible to gaming around composition of the patient
population (that is, avoiding taking on residents with more complex
medical needs).
Concerns raised by the local ombudsmen in the 2020 OIG Report on
staffing levels echoed those raised by commenters. Some of the concerns
identified in the OIG Report as a result of understaffing include
residents' call lights going unanswered, medication errors, untreated
wounds, and inadequate bathing, including residents going a week
without a shower. The ombudsmen also focused on problems related to
weekend staffing below required levels, resulting in resident falls and
altercations between residents; the ombudsmen attributed such outcomes
to facilities' inadequate leadership, as well as insufficient numbers
of NAs.\34\ This information supports what was shared with us during
the listening sessions as well as during the public comment period on
the FY 2023 SNF PPS RFI.
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\34\ Office of Inspector General Data Brief (August, 2020) Some
Nursing Homes' Reported Staffing Levels in 2018 Raise Concerns;
Consumer Transparency Could Be Increased. OEI-04-18-00450. https://oig.hhs.gov/oei/reports/OEI-04-18-00450.pdf.
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Commenters also provided information on several resident and
facility factors for consideration when assessing a facility's ability
to meet any mandated staffing standards, including whether the facility
has a high Medicaid census, high bed count, for-profit ownership, high
SNF competition within the same county, high community poverty rates,
low Medicare census, and for staffing, availability of RNs
specifically. Other commenters stated that resident acuity should be a
primary determinant in establishing minimum staffing standards, noting
that CMS pays nursing homes based on resident acuity level.
We also received comments on factors impacting facilities' ability
to recruit and retain staff, with most commenters in support of
creating avenues for competitive wages for nursing home staff to
address issues of recruitment and retention. Other commenters, however,
suggested that year-over-year reductions in skilled nursing facility
payments complicate facilities' ability to increase staff wages and
benefits.
Finally, we received differing comments on the study design,
payment, and cost impacts of establishing minimum staffing standards.
Some commenters indicated that there is variability in Medicaid labor
reimbursement amounts and many States' Medicaid rates do not keep up
with rising labor costs. Others, however, noted that most facilities
have adequate resources to increase their staffing levels without
additional Medicaid resources, and cited a recent study that suggests
that most major publicly traded nursing home companies were highly
profitable, even during the COVID-19 PHE. Commenters provided robust
feedback on the study design and method for implementing nurse staffing
standards, while others noted that resident acuity could change on a
daily basis and recommended that CMS establish benchmarks rather than
absolute values in staffing standards. Other commenters recommended
using both minimum nurse HPRD and nurse to resident ratios.
Additionally, we note that several members of Congress have
provided input regarding the establishment of minimum staffing
standards. While some Members of Congress have expressed concern that
requiring minimum staffing standards could create access issues for
rural communities, other Members of Congress have expressed support for
establishing minimum staffing
[[Page 61359]]
standards for LTC facilities.\35\ We appreciate the thoughtful feedback
from commenters and have considered the varying feedback that we
received to inform the staffing study design and proposal for minimum
staffing standards discussed in this rule.
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\35\ Sen Tester, Nursing Home Staffing Mandate, 2023; https://www.tester.senate.gov/wp-content/uploads/1-20-23-Nursing-Home-Staffing-Mandate-Letter-FINAL.pdf; Sen Casey, Wyden, et al, Nursing
Home Staffing Mandate, 2023; https://www.aging.senate.gov/imo/media/doc/letter_to_cms_re_regulations_to_establish_minimum_staffing_levels_in_nursing_homes.pdf; Doggett, Schakowsky Lead Effort Pressing for
Strong Nursing Home Staffing Standards [verbar] Congressman Lloyd
Doggett (house.gov), https://doggett.house.gov/media/press-releases/doggett-schakowsky-lead-effort-pressing-strong-nursing-home-staffing-standards.
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b. The 2022 Nursing Home Staffing Study \36\
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\36\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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The CMS commissioned a nursing home staffing study in 2001,
entitled ``Appropriateness of Minimum Nurse Staffing Ratios in Nursing
Homes'',\37\ commonly referred to as the 2001 CMS Staffing Study, that
focused on two empirical analyses related to the link between staffing
and quality: (1) whether there is a nurse staffing ratio above which no
additional improvements in quality are observed, and (2) what nurse
staffing thresholds are minimally necessary to provide care processes
consistent with the Omnibus Budget Reconciliation Act (OBRA) of 1987
optimal standards and related regulations.
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\37\ Appropriateness of Minimum Nurse Staffing Ratios in Nursing
Homes (2001) https://www.justice.gov/sites/default/files/elderjustice/legacy/2015/07/12/Appropriateness_of_Minimum_Nurse_Staffing_Ratios_in_Nursing_Homes.pdf
.
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The study findings identified nursing home staffing thresholds
beyond which additional staff did not lead to significant further
improvements in care. These staffing levels, expressed in HPRD, varied
by outcomes--short-stay or -long-stay- quality measures, by nurse staff
type, and by level of nurse staffing. Depending on the nature of the
nursing home population (case-mix), these thresholds ranged between:
0.55 to 0.75 HPRD for RNs; 1.15 to 1.30 HPRD for licensed nurses (RNs
and LPN/LVNs); and 2.4 to 2.8 HPRD for NAs. The 2001 study also
reported that ``[m]inimum staffing levels at any level up to these
thresholds are associated with incremental quality improvements, with
the greatest benefits as these thresholds are approached.'' In other
words, 4.1 HPRD was the highest HPRD of combined NAs and licensed staff
(RNs/LPN/LVN) for long-stay measures beyond which no further
improvement in safety and quality was observed. The 4.1 HPRD drawn from
the 2001 Study is commonly misinterpreted as the minimum total nurse
staffing that is needed to protect resident health and safety.
The CMS also commissioned a simulation analysis (``time motion
study'') on NA time expended for providing five key care processes,\38\
in addition to routine care, to determine an HPRD level for NAs to
provide optimal nursing care. The study findings suggest that the NA
HPRD level ranged between 2.8 (low workload facility) and 3.2 HPRD
(high workload facility) for NAs only, depending on the NA workload
requirements which was based on the nursing home resident population.
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\38\ Five care processes were the following: (1) dressing/
grooming; (2) exercise; (3) feeding assistance; (4) changing and
repositioning; and (5) providing toileting assistance.
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Given the growing body of evidence demonstrating the importance of
staffing to resident health and safety, the continued insufficient
staffing, and variability in nurse-to-resident ratios across States,
creating a consistent floor will reduce the risk of residents receiving
unsafe and low-quality care. In 2022, given the age of the 2001 study
and the persistent chronic nurse understaffing linked to poor safety
and quality care, which was exacerbated by the COVID-19 PHE, we
commissioned a new nursing home study that focused on a non-empirical
analysis and four empirical analyses to develop minimum staffing
standards using case-mix adjusted data sources, as well as staffing
types and levels for improving safety and quality care in nursing
homes.
These non-empirical and empirical analyses, also known as study
tasks, included a systematic literature review, qualitative analysis of
data collected using interviews and surveys conducted during scheduled
site visits, an observation study (``similar to the time motion
study'') followed by simulation modeling analysis for licensed nurses
(RNs and LPN/LVNs), quantitative analyses which included descriptive
and impact analyses, and cost analyses. The key takeaways from the
multifaceted approach are:
Recent literature as well as testimonials from nursing
home staff, residents, and family members underscore the relationship
between staffing and care quality; however, there is no clear,
consistent, and universal methodology for setting specific minimum
staffing standards, as evidenced by the varying current standards
across certain States.
Nurse staffing levels vary considerably nationwide by LTC
facilities' characteristics, such as location, size, and profit status
and States. Thirty-eight States and the District of Columbia have
minimum staffing standards, which vary considerably. We note that the
proposed RN requirement of 0.55 HPRD is higher than every State, and
only lower than the District of Columbia (DC) based on data from
September 2022. Our proposed NA requirement of 2.45 HPRD is higher than
all States and DC, based on data reported in September
2022.36 39 To reiterate, LTC facilities would be required to
meet both the proposed 0.55 HPRD for RNs and the 2.45 HPRD for NAs.
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\36\ Payment and Access Commission (MACPAC). (2022a). Medicaid
and CHIP Payment and Access Commission (MACPAC). (2022a).
Compendium: State policies related to nursing facility staffing.
https://www.macpac.gov/publication/statepolicies-related-tonursing-facility-staffing/.
\39\ Consumer Voice (The National Consumer Voice for Quality
Long-Term Care) (2021). State nursing home staffing standards:
Summary report https://theconsumervoice.org/issues/otherissues-andresources/staffing.
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The relationship between staffing and quality of care and
safety, varies by staff type and level as follows:
++ RN hours per resident day of 0.45 or more have a strong
association with safety and quality care.
++ NA hours per resident day of 2.45 or more also have a strong
association with safety and quality care.
++ LPN/LVN hours per resident day, at any level, do not have any
association with safety and quality of care.40 41 42
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\40\ Akinci, Fevzi, and Diane Krolikowski. ``Nurse staffing
levels and quality of care in Northeastern Pennsylvania nursing
homes.'' Applied nursing research: ANR vol. 18,3 (2005): 130-7.
doi:10.1016/j.apnr.2004.08.004.
\41\ Yang, Bo Kyum et al. ``Nurse Staffing and Skill Mix
Patterns in Relation to Resident Care Outcomes in US Nursing
Homes.'' Journal of the American Medical Directors Association vol.
22,5 (2021): 1081-1087.e1. doi:10.1016/j.jamda.2020.09.009.
\42\ Spilsbury, Karen et al. ``The relationship between Nurse
staffing and quality of care in nursing homes: a systematic
review.'' International journal of nursing studies vol. 48,6 (2011):
732-50. doi:10.1016/j.ijnurstu.2011.02.014.
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Increasing nursing staffing level is associated with
costs, namely financial costs to LTC facilities, as well as benefits,
including enhanced safety and quality to varying degrees.
In brief, the 2022 Nursing Home Staffing Study was conducted as a
general framework to survey different sources of information and to
conduct different types of analyses to help inform the minimum staffing
decision process, while considering the potential
[[Page 61360]]
cost and benefit. The study \43\ was unable to examine the relationship
between staffing levels by shift and quality/patient safety because the
PBJ System does not include information on staffing by shift. In
addition, there was limited information on non-nurse staffing, so the
study team was unable to examine minimum staffing standards for non-
nurse staff.
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\43\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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Unlike the 2001 CMS Staffing Study, the 2022 Nursing Home Staffing
Study was guided by a conceptual model (see Figure 1), that
hypothesizes that administrative practices (for example, nurse staffing
levels, staffing mix, care delivery model, and organizational
environment) influence the quality and safety of care provided in a
nursing home, which, in turn, influences nursing home residents'
outcomes (that is, clinical, safety, and disparity). Clinical outcomes
were defined using Care Compare quality measures derived from the MDS
and Medicare claims data. Patient safety was defined using measures
from health inspection surveys.
[GRAPHIC] [TIFF OMITTED] TP06SE23.000
(1) Systematic Literature Review
The overall goal of the systematic literature review was to
summarize timely and current evidence of the relationship between
minimum staffing standards in nursing homes and the safety and quality
of care, as well as clarify the relative strengths and weaknesses of
the available literature. In addition, the systematic literature review
of existing peer-reviewed and ``gray literature'' (that is, published
outside the traditional research publications such as opinion pieces,
advocacy materials, and non-statistically rigorous research published
by government agencies) which includes printed articles, for the
initial period 2019-2022, and prior to 2019 if needed, focused on
addressing the following questions:
What is the relationship between nurse staffing levels and
safety and quality of care? What minimum staffing levels associated
with safety and quality of care have been identified in previous
studies, and what is the empirical basis for them?
What are the current State and Federal standards for
staffing level/types and outcomes in nursing homes for weekdays,
weekends, and evenings?
What is the role of different nurse types (that is, RNs/
LPN/LVNs/NAs) in ensuring safety and quality of nursing home care?
What are the costs associated with nurse staffing in
nursing homes? What are the costs associated with implementing minimum
nurse staffing standards and increasing nurse staffing levels/types?
Most importantly, an increase in nurse staffing was associated with
improved quality of care. In a 2021 study, where interview data were
examined, and multivariate analyses of resident outcomes were
conducted, authors concluded that higher total nurse staffing had a
significant correlation with a decreased number of pressure ulcers, an
increase in influenza vaccination, an increase in pneumonia
vaccination, and decreased number of
[[Page 61361]]
outpatient emergency department visits.\44\
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\44\ Wagner, L.M., Katz, P., Karuza, J., Kwong, C., Sharp, L., &
Spetz, J. (2021). Medical staffing organization and quality of care
outcomes in post- acute care settings. Gerontologist, 61(4),605-614.
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However, the OBRA of 1987,\45\ which amended sections 1819 and 1919
of the Act to mandate staffing standards in nursing homes, did not
mandate specific numerical minimum nurse staffing standards. As such
several States mandated variable staffing standards to help meet the
standards in sections 1819 and 1919 of the Act.
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\45\ chrome-extension://efaidnbmnnnibpcajpcglclefindmkaj/
https://static1.squarespace.com/static/602ac1a3ede5cc16ae72d619/t/6043c094b391303a2d1c1418/1615052948879/OBRA87summary.pdf.
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As stated in the 2022 Nursing Home Staffing Study report,\46\ which
will be published concurrently with this proposed rule, studies found
that States that established higher nurse staffing standards resulted
in increased staffing within nursing homes, but the magnitude of this
increase varied by the staff type. For example, authors found that when
the States of California and Ohio required increased licensed nurse or
total nurse staffing standards, this resulted in some actual increase
in staffing levels. California required facilities to increase the
hours for direct resident care per day from 3.0 to 3.2 and prohibited
the previous practice of allowing RN or LPN hours to be counted twice,
also known as ``doubling''. The rationale for doubling was to increase
the number of licensed staff. Ohio law required facilities to increase
total nurse staffing (RN, LPN/LVN, and NA) direct care hours from 1.6
to 2.75. Results showed that for both California and Ohio, nursing
homes that ranked in the bottom quartile at baseline on total nurse
staffing significantly increased their HPRDs for all three types of
nursing staff (RN, LPN/LVN, and NA). However, there was a reduction in
professional skill mix, meaning there were fewer RNs relative to other
direct care staff, 71 percent of the increase in nursing staff
represented an increase in NA hours.\47\
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\46\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
\47\ Chen, Min M, and David C Grabowski. ``Intended and
unintended consequences of minimum staffing standards for nursing
homes.'' Health economics vol. 24,7 (2015): 822-39. doi:10.1002/
hec.3063.
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Another study, when controlling for changes in State minimum direct
care staffing standards during the study period, in Arkansas, Delaware,
Florida, and Ohio, found that nursing homes serving a higher share of
Medicaid patients reported large increases in staffing, specifically
RNs, in response to a one HPRD increase in total nurse staffing from a
baseline of 2.0 HPRD requirement for total nurse staffing.\48\ In sum,
studies found that nursing homes in States with higher minimum staffing
standards employed more staff.
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\48\ Bowblis, John R. ``Staffing ratios and quality: an analysis
of minimum direct care staffing requirements for nursing homes.''
Health services research vol. 46,5 (2011): 1495-516. doi:10.1111/
j.1475-6773.2011.01274.x.
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Most LTC facilities typically have nurse teams providing care to
residents with very few RNs (8 percent) making up the team, compared to
other nurse team members, (that is, administrative RNs, LPN/LVNs and
unlicensed assisting staff)49 50 which suggests that LPN/
LVNs provide most of the clinical care with minimal supervision from
RNs.\51\ Other study findings suggest that some Directors of nursing
(DONs) view the roles of RNs and LPN/LVNs interchangeably despite the
difference in educational preparation and scope of practice. Yet, study
findings suggest that having more RNs in LTC facilities to provide
clinical skills and supervision of LPNs positively influences LPNs
contributions to improved quality care.\52\ In summary, the presence of
more RNs on a team influences the quality of care provided.
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\49\ American Health Care Association (2012) LTC stats: Nursing
facility operational characteristics report. Retrieved from http://www.ahcancal.org/research_data/oscar_data/Nursing%20Faciliry%20Operational%Characteristics/LTC+STATS_PVNFOPERATIONS_2012Q4_FINAL.pdf.
\50\ Siegel, Elena O et al. ``Leadership in Nursing Homes:
Directors of Nursing Aligning Practice With Regulations.'' Journal
of gerontological nursing vol. 44,6 (2018): 10-14. doi:10.3928/
00989134-20180322-03.
\51\ Corazzini, Kirsten N et al. ``Licensed practical nurse
scope of practice and quality of nursing home care.'' Nursing
research vol. 62,5 (2013): 315-24. doi:10.1097/NNR.0b013e31829eba00.
\52\ Corazzini, Kirsten N et al. ``Licensed practical nurse
scope of practice and quality of nursing home care.'' Nursing
research vol. 62,5 (2013): 315-24. doi:10.1097/NNR.0b013e31829eba00.
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Based on gray literature, a coalition of resident nursing home
advocates and the National Academies of Sciences, Engineering, and
Medicine recommended RN coverage, with at least one RN, for 24 hours a
day, 7 days a week, with additional RN coverage if needed, as part of
the minimum staffing standards.53 54
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\53\ California Advocates for Nursing Home Reform, Center for
Medicare Advocacy, Justice in Aging, Long Term Care Community
Coalition, Michigan Elder Justice Initiative, and The National
Consumer Voice for Quality Long-Term Care. (2021). Framework. for
nursing home reform post COVID-19. https://theconsumervoice.org/uploads/files/actionsand-newsupdates/Framework_and_overview_FINAL.pdf.
\54\ National Academies of Sciences, Engineering, and
Medicine.(2022).The national imperative to improve nursing home
quality: Honoring our commitment to residents, families, and staff.
The National Academies Press. https://doi.org/10.17226/26526.
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Several costs for increasing nurse staffing were cited in the
literature, we note that these costs differ from our estimated costs as
set out in this proposed rule. For example, in one study, by trade
groups representing the industry, 4.1 HPRD for total nurse staffing
(that is, RNs, LPN/LVNs and NAs) was found to cost the long-term care
industry more than $10 billion annually.\55\ Another study estimated
that the additional staffing costs to meet the 4.1 HPRD for total nurse
staffing as $7.25 billion.\56\ In summary, several studies found that
higher levels of nurse staffing, including RNs, were associated with
improved resident care outcomes and increased costs.
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\55\ CLA (CliftonLarsonAllen, LLC). (2022). Staffing mandate
analysis. In-depth analysis on minimum nurse staffing levels and
local impact. American Health Care Association and the National
Center for Assisted Living (AHCA/NCAL). https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/CLA-Staffing-Mandate-Analysis.pdf.
\56\ Hawk, T., White, E.M., Bishnoi, C., Schwartz, L.B., Baier,
R.R., & Gifford, D. R. (2022). Facility characteristics and costs
associated with meeting proposed minimum staffing levels in skilled
nursing facilities. Journal of the American Geriatrics Society,
70(4), 1198-1207. https://doi.org/10.1111/jgs.17678.
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(2) Qualitative Analysis
Thirty-one nursing homes were selected for scheduled site visits in
14 States, specifically California, Colorado, Florida, Illinois,
Massachusetts, Maryland, Missouri, North Carolina, New York, Ohio,
Pennsylvania, Virginia, Washington, and Wyoming. These site visits
started in September 2022, and ended in December 2022. nursing homes
were selected to ensure a national representation by size, ownership
type, geographic location, Medicaid population, and overall rating
under the Five-Star Quality Rating System. Nursing homes voluntarily
participated in these site visits and no incentives were offered. Site
visit protocols and interview guides were reviewed and approved by Abt
Associates Inc. Institutional Review Board.\57\ Site visits were
conducted under the Nursing Home Reform Law in the Omnibus Budget
Reconciliation Act of 1987 (OBRA '87) (Pub. L. 100-203), which is
exempt from the Paperwork Reduction Act (PRA).
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\57\ https://abtimpact.com/mission-impact-2020/ethics-and-governance/.
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During site visits, interviews (n=361) were conducted with 76
nursing home leadership, 195 direct care staff
[[Page 61362]]
(including RNs, LPN/LVNs, and NAs), 65 residents, and 25 family members
to better understand the relationship between staffing levels, staffing
mix (what types of staff are present), and resident outcomes and
experiences (that is, clinical outcomes, safety, health disparities).
Staff completed 168 Missed Nursing Care (MISSCARE) \58\ surveys to
determine any omitted or delayed care.
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\58\ Kalish, B.J., & Williams, R.A. (2009). Development and
psychometric testing of a tool to measure missed nursing care. The
Journal of Nursing Administration, 39(5), 211-219. https://doi.org/10.1097/nna.0b013e3181a23cf5.
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Findings from data analyses of surveys and interviews highlighted
that activities of daily living care tasks, including bathing,
toileting, and mobility assistance, are the most frequently delayed
tasks when shifts/units are short staffed. Family members also reported
that quality of life, quality of care, and resident safety are
adversely affected when nursing homes are short staffed. Some staff
stated that rushing through care due to having high-acuity residents,
meaning that their condition is severe and imminently dangerous, or a
high number of assigned residents led to medication errors and safety
issues. For example, one nurse stated that being assigned 33 patients
without any other staff is not safe. Respondents also noted that
different staffing requirements for NAs and licensed nurses, among
other factors, should be considered when developing minimum staffing
standards. Nursing home staff respondents also suggested minimum staff-
to-resident ratios. NA respondents proposed a ratio of 5 to 14
residents per NA, whereas RNs and LPN/LVNs suggested ratios from 8 to
25 residents per licensed nurse (RN and LPN/LVNs). Respondents worked
across a variety of shifts, units, and resident types (for example,
skilled nursing/rehabilitation, long-term care, total care, dementia
care, and behavioral issues), so the acuity of residents they typically
supported varied as did the ratios they proposed.
(3) Observation Study/Simulation Modeling
Twenty LTC facilities were selected based on a convenience sampling
method for the observation study. Time data of 8,249 unique care tasks
were collected via direct observations of licensed nursing staff (that
is, RN and LPN/LVNs) providing common clinical tasks including
medication pass, resident assessment, wound care, and catheter/device
care. Previous simulation modeling research focused on NAs providing
non-clinical tasks specifically, activities of daily living (ADL)
tasks,\59\ but not on clinical tasks. Thus, this simulation study was
aimed at addressing this gap in knowledge and focused exclusively on
specific clinical tasks provided by licensed nurses.
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\59\ Schnelle, J.F., Schroyer, L.D., Saraf, A.A., & Simmons,
S.F. (2016). Determining nurse aide staffing requirements to provide
care based on resident workload: A discrete event simulation model.
Journal of the American Medical Directors Association, 17(11), 970-
977. https://doi.org/10.1016/j.jamda.2016.08.006.
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These data were used to develop a simulation model to examine the
impact of different levels of licensed nurses and resident acuity, on
the quality and timeliness of providing certain care tasks defined as
delayed and omitted care respectively. This simulation model is
important to add to existing literature on delayed care and help the
staffing study reflect not just what staffing levels exist currently as
a descriptive model, but also what staffing levels are needed for safe,
quality care for residents at varying acuity levels for the studied
clinical tasks.
As stated in the 2022 Nursing Home Staffing Study report,\60\ which
will be published concurrently with this proposed rule, simulation
findings suggest that a staffing level of four licensed nurses (that
is, a combination of RNs and LPN/LVNs) in this setting, would reduce
the amount of delayed or omitted care for the clinical tasks studied to
a rate below 5 percent in a 70-resident nursing home. Five licensed
nurses would virtually eliminate delayed or omitted care in this
setting. The 4 to 5 licensed nurses correspond to approximately 1.4 to
1.7 HPRD at such a nursing home. However, the study has several
limitations. One is that these study observations did not differentiate
between RN and LPN/LVN tasks, so we are unable to separate estimates of
potential delayed or omitted care for an RN versus an LPN. Most
importantly, simulation studies did not incorporate any patient-level
data or facility-level data from site observations. Instead,
simulations estimated patient acuity using MDS data. Therefore, patient
acuity in simulations were based on population-level estimates, rather
than estimates at the nursing-home level or the individual patient
level.
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\60\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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Because the simulation did not use actual patient- or facility-
level data, facilities specializing in treatment of high or low acuity
residents were not properly represented in the staffing simulation
models. For example, different staffing needs may arise in facilities
specializing in care for persons experiencing disabilities resulting in
paraplegia/quadriplegia, or in facilities specializing in persons
experiencing advanced cognitive impairment. Analysis of specialized
care facilities was outside of the scope of this simulation research.
Furthermore, other existing simulation research focused on NAs only, so
NAs were considered as part of the evidence base for this work but were
not included in the analysis.
(4) Quantitative Analysis
Secondary Analysis: The quantitative analysis used secondary data
of nursing homes (n = 14,529) from the CMS' PBJ System, the MDS 3.0,
Medicare cost reports, and health inspection surveys to establish
minimum staffing standards for different types of nurse staff (that is,
total nurse staffing and individual RNs, LVN/LPNs, and NAs) and for
non-nurse staff (that is, social workers, feeding assistant, other
activities staff, and physical therapy assistant among others) that is
associated with an acceptable quality of care and safety in nursing
homes. Quality was defined based on a total composite quality measure
made up of Short-Stay Measures (that is, community discharge, hospital
readmissions, emergency department visits, Functional improvement) and
Long-Stay Measures (that is, activities of daily living decline,
antipsychotic medication use, mobility decline, high-risk pressure
ulcer, hospitalizations, and emergency department visits).\61\
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\61\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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Safety was measured based on the relative on-site health inspection
performance of nursing homes within a State using surveys for the
following deficiencies: Immediate jeopardy to resident health or
safety; Actual harm that is not immediate jeopardy; No actual harm with
potential for more than minimal harm that is not immediate jeopardy;
and, No actual harm with potential for minimal harm.
Similar to other CMS nursing home improvement quality initiatives
such as Value Based Payment for nursing homes, acceptable quality and
safety was defined using the 25th and 50th percentile cut-offs on the
current distribution of the total quality measure (QM) score and
within-State performance on health inspection survey data, based on the
predicted probability of nursing homes exceeding the threshold across
the full distribution of nurse staffing levels. Moreover, some
[[Page 61363]]
nursing homes are staffed at levels that place their residents at
substantially higher risk of poor quality (for example, being in the
lowest quartile of QM score, defined as the 25th percentile cut off)
and low safety (for example, lowest quartile of performance on health
inspection survey, defined as the 25th percentile cut off). The PBJ
System data for the fourth quarter of 2019 through the first quarter of
2022, for 14,688 Medicare and/or Medicaid certified nursing homes in
the United States were included in the analyses.
Descriptive analyses examined HPRD for nurse and non-nurse staff in
nursing homes (n=14,529) across all States. Regression modeling
analyses controlled for case-mix adjusted data for nurse staffing (that
is, RN, LPN/LVN, and NA), LTC facility ownership (for example, non-
profit, Government), percent of Medicaid residents, hospital-based
facility, Continuing Care Retirement Community (CCRC) facility, rural
location, number of certified beds (per 1-bed increase), and Special
Focus Facility status. Using a correlational descriptive analysis,
findings indicate that there is a consistent positive relationship
between higher RN staffing and better performance, regardless of the
measure (that is, total quality measure score or within-State health
inspection score), the performance standard (that is, acceptable
quality and safety at the 25th, or 50th percentile), or the case-mix
adjusted RN staffing decile measured in HPRD.
Among all nurse staffing types, RNs exhibit the strongest
association with acceptable quality (p<.0001, significant at [alpha] =
0.05) and safety (pHowever, similar to previous
analyses,62 63 64 this study found no relationship between
LPN/LVNs HPRD levels and quality care and safety. This finding may be
influenced by the LPN/LVN's role \65\ and the fact that nursing homes
with higher LPN/LVN staffing levels tend to have lower RN staffing
levels.\66\ The volume and number of HPRD reported in PBJ System for
non-nurse staff were very low, ranging from 0.00-0.11; as such were
insufficient to examine further for establishing minimum non-nurse
staffing standards.
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\62\ Akinci, Fevzi, and Diane Krolikowski. ``Nurse staffing
levels and quality of care in Northeastern Pennsylvania nursing
homes.'' Applied nursing research: ANR vol. 18,3 (2005): 130-7.
doi:10.1016/j.apnr.2004.08.004.
\63\ Yang, Bo Kyum et al. ``Nurse Staffing and Skill Mix
Patterns in Relation to Resident Care Outcomes in US Nursing
Homes.'' Journal of the American Medical Directors Association vol.
22,5 (2021): 1081-1087.e1. doi:10.1016/j.jamda.2020.09.009.
\64\ Spilsbury, Karen et al. ``The relationship between Nurse
staffing and quality of care in nursing homes: a systematic
review.'' International journal of nursing studies vol. 48,6 (2011):
732-50. doi:10.1016/j.ijnurstu.2011.02.014.
\65\ Firnhaber, G.C., Roberson, D.W., & Kolasa, K.M. (2020).
Nursing staff participation in end-of-life nutrition and hydration
decision-making in a nursing home: A qualitative study. Journal of
Advanced Nursing, 76(11), 305-3068.https://doi.org/10.1111/jan.14491.
\66\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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We considered findings from the 2022 Nursing Home Staffing Study,
specifically that there was no statistically significant difference in
safety and quality care below 2.45 HPRDs for NAs. In other words,
staffing below 2.45 HPRD for NAs did not improve safety and quality
care for LTC facility residents. Also, our proposed NA requirement of
2.45 HPRD which was developed using case-mix adjusted data sources, is
higher than the minimum requirements in all States and DC, based on
data reported in September 2022.
We also considered findings from the 2022 Nursing Home Staffing
Study that there was no correlation between safety and quality care,
and LVN/LPNs. We examined findings from the 2022 Nursing Home Staffing
Study, that there was a statistically significant difference in safety
and quality care at 0.45 HPRD for RNs and higher. We also factored the
minimum RN requirements in all States and the District of Columbia,
which with the exception of two States, all had less than the 0.45 HPRD
for RNs, which was the lowest level presented in the 2022 Nursing Home
Staffing Study. However, current State minimum RN staffing levels are
associated with increased risk for unsafe and poor quality care.
Therefore, we are proposing the level of 0.55 HPRD for RNs, which was
developed based on case-mix adjusted data sources and the 2022 Nursing
Home Staffing Study findings. In addition, 0.55 HPRD for RNs will
result in a large majority (78 percent) of LTC facilities increasing
staffing to provide safe and quality care. CMS is also seeking comments
on whether in addition to the 0.55 RN and 2.45 NA HPRD standards, a
minimum total nurse staffing standard, such as 3.48 among other
alternatives, discussed later in the rule, should also be required.
Furthermore, we considered striking a balance between cost and
benefit for LTC facilities, nursing staff, and residents, and the
minimum number of HPRDs by staff type that will improve safety and
quality care. Therefore, we proposed 0.55 and 2.45 HPRD for RNs and
NAs, respectively, which were developed using case-mix adjusted data
sources, because we believe that proposing lower staffing levels than
current State requirements would be insufficient to meet the statutory
goals of improving health and safety.
Impact Analysis: The impact of State minimum staffing policies on
nurse staffing, and safety and quality care in nursing homes during the
recent COVID-19 PHE, can inform policy makers on potential outcomes to
Federal minimum staffing standards. The study also provided analyses of
the recently revised Massachusetts minimum staffing standards, in the
wake of the COVID-19 PHE, making the findings the most timely and
relevant of various State-level analyses. The researchers determined
that the analysis of the Massachusetts staffing standard would be
particularly informative given that the State increased its HPRD to a
relatively high level and incorporated a Medicaid payment reduction of
2 percent for noncompliant facilities. As such a quasi-experimental
study was conducted to determine the impact of the Massachusetts
minimum staffing standards on quality of care and safety in nursing
homes.
The Massachusetts nursing home minimum staffing standards requires
3.58 HPRD for total nurse staffing (that is, RN, LPN, and NA), of which
0.508 HPRD was for an RN, and provided for a financial penalty for
noncompliance with the total nurse staffing standard. The study period
was defined as 2015 Q3 through 2022 Q2. The Massachusetts nursing home
minimum staffing policy was effective January 1, 2021. Impact analysis
of existing nursing homes (n=40) data from the PBJ System data (2015Q3-
2022Q2) and Care Compare (quality measure and health inspection survey
data) were used. The comparison group selected from the sample of
national nursing homes (n=1,617) was constructed using a synthetic
control approach. Synthetic control is a statistical method for
creating a comparison group of nursing homes from a region that did not
experience the same health policy intervention, but closely resembles
the nursing home staffing level and trend in Massachusetts using
weighted estimates. Difference-in-differences regression analyses were
conducted by stratified nursing home Medicaid share and staffing level.
Difference-in-differences regression is a statistical method for
estimating the causal effect of the Massachusetts minimum staffing
standards, when compared to a region that did not experience the same
policy intervention.
[[Page 61364]]
These regression models did not find a discernible impact on
quality of care nor safety within the time period studied. They did,
however, find an increase in total nurse staffing levels among low-
staffed nursing homes with a high share of residents with Medicaid in
Massachusetts. The observed staffing increase was significant for NAs
(average treatment effect on the treated (ATT)=.179, p=0.03). The
analysis thus demonstrates that nursing homes were able to expand
staffing in response to the new requirement, notwithstanding workforce
challenges since the pandemic.
One limitation of the analysis was the small number of nursing
homes included because the analysis focused on a subset of nursing
homes with the strongest incentive to respond to the new policy, that
is, those with high Medicaid resident shares (>= 75th percentile) and
initial staffing levels below the new Massachusetts minimum staffing
requirement (HPRD <= 3.58 for total nurse staffing), resulting in 1,617
out of 15,333 nursing homes nation-wide for the control group, and 40
out of 373 nursing homes in Massachusetts. Also, about one third of the
nursing homes did not complete health inspection surveys due to the
COVID-19 PHE, so there was a substantial amount of missing data for
examining the safety outcome. Furthermore, the analysis of quality of
care and safety outcomes was limited by the short post-implementation
study period of Massachusetts's minimum staffing standards, which does
not allow for sufficient time for a complete evaluation of the policy.
Additionally, the impact analysis was focused on data from roughly the
first year of implementation, which usually involves resource planning
and operational changes to meet the new policy standards, and thus may
not be representative.
These study results show that there was an increase in NA staffing,
which supports the proposed policy to require facilities to meet the
minimum staffing standards or otherwise be subject to, civil money
penalties and denial of payment for all Medicare and/or Medicaid
individuals among other penalties in accordance with 42 CFR 488.406.
(5) Cost and Savings Analysis
The cost analyses were conducted to determine any associated
incremental costs that nursing homes would likely experience to meet
minimum staffing standards, as well as any Medicare savings. Cost
analyses used the 2021 Q2 PBJ System (staffing data), facility-specific
information on hourly costs for RNs, LPN/LVNs, and NAs from Worksheet
S-3, FY 2021 Part V of the Medicare Cost Report for 14,688 SNFs, and
information on resident census that is available from files produced
for comparison to evaluate any associated incremental costs. We note
that the cost analyses were independent of a facility's case-mix.
Study findings indicate that the staffing costs for increasing RN
and NA staffing levels in nursing homes to meet the minimum staffing
standards ranges from $2.2 to $6.0 billion per year. The minimum
estimated cost savings to Medicare, based on savings from the RN
staffing requirement, are from the decreased use of acute care services
(fewer hospitalizations and emergency department visits) and increased
community discharges (defined as a reduction in Medicare-covered SNF
days); cost savings ranges from $187 to $465 million. The decision to
focus on estimated savings for RNs only, was because RN staffing levels
were found to have a much stronger and a more consistent positive
correlation with hospitalizations and emergency department visits than
NAs or LPNs.
These quantitative analyses of savings to Medicare were limited to
quality metrics for which there are extant secondary data. However,
there are likely additional benefits to quality of care and life that
cannot be fully identified through the analysis in the 2022 Nursing
Home Staffing Study. Moreover, these analyses do not consider
facilities' existing resources, ability to pay for possible staffing
levels, or access to trained healthcare professionals.
Overall, the study \67\ was unable to examine the relationship
between staffing levels by shift and quality/patient safety because the
PBJ System does not include information on staffing by shift. In
addition, there was limited information on non-nurse staffing, so the
study team was unable to examine minimum staffing standards for non-
nurse staff.
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\67\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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c. Listening Sessions
In addition to commissioning the 2022 Nursing Home Staffing Study
and issuing the FY 2023 SNF PPS RFI, we also held two listening
sessions on June 27, 2022, and August 29, 2022, to provide information
on the study and solicit additional input on the study design and
approach for establishing minimum staffing standards. The first
listening session was attended by 18 interested parties representing
various groups within the LTC community. During this session, this
small group discussed several ``big picture'' questions about minimum
staffing standards and provided input on the overall study approach.
The second listening session was attended by 668 participants who
offered feedback on specific questions that were included on the
registration form, such as how to ensure that health equity/health care
disparities are addressed when establishing minimum nurse staffing
standards and how minimum staffing standards should consider
differences in costs for job categories and variations across States.
During the August 2022 listening session,\68\ participants shared
their opinions that the current state of staffing standards was not
adequate, and there was consensus that minimum staffing standards
should be the same across the country. Participants recommended that
CMS consider resident characteristics and care needs when developing
staffing standards. Participants indicated that the interdisciplinary
team and the care provided by non-nursing staff such as physical,
occupational, speech therapists, respiratory therapists (especially
with pediatric specialty/ventilator units), podiatrists, and
psychiatrists also need to be considered. Others also suggested that
the inclusion of non-nurse staff to meet staffing standards may
positively contribute to aspects of quality of life for residents.
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\68\ https://www.cms.gov/nursing-homes.
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Similar to the suggestions received in the FY 2023 SNF PPS RFI,
some participants suggested that CMS create a staff-to-resident ratio
minimum standard, which can further support a HPRD staffing standard.
Participants also suggested that facilities should report and display
staff-to-resident ratios on a daily basis for all shifts. Participants
in favor of a staff-to-resident ratio requirement noted that increased
transparency will help residents and family members to easily determine
if the facility is in compliance with minimum staffing standards.
Lastly, some participants indicated that minimum staffing standards
should consider the need for consistent NA qualifications across all 50
States and to allow for more online training to eliminate the backlog
of availability for NAs testing and increase the availability of
classes near candidates to support staff shortages.
[[Page 61365]]
4. Ongoing CMS Initiatives and Programs Impacting LTC Facilities
In establishing the proposed minimum staffing standards, we also
considered ongoing CMS policies, programs, and operations, including
Medicaid institutional payment and transparency, the SNF prospective
payment system, the SNF Value-based Purchasing Program (SNF VBP),
oversight and enforcement, and CMS policies intended to enhance access
to Medicaid home and community-based services and promote community-
based placements.
a. Medicaid Institutional Payments and Payment Transparency
In this proposed rule we are also proposing a Medicaid
Institutional Payment Transparency provision that is intended to
promote public payment transparency. Greater transparency will help us
assess the extent to which LTC facilities with a large Medicaid
population have challenges achieving compliance with minimum staffing
standards. State Medicaid Agencies would be required to publicly report
the percentage of payments expended for direct care workers and support
staff services in Medicaid-participating nursing facilities and
Intermediate Care Facilities for Individuals with Intellectual
Disabilities (ICF/IID) (see section III. of this proposed rule). We
expect that as a result of this transparency requirement, some
facilities would likely increase staffing independent of our proposed
minimum staffing standards.
b. Medicare Skilled Nursing Facility Prospective Payment System
The Medicare Skilled Nursing Facility Prospective Payment System is
a comprehensive per diem rate under Medicare for all costs for
providing covered Part A SNF services (that is, routine, ancillary, and
capital-related costs). There are over 15,000 Medicare-certified SNFs.
The FY 2023 SNF PPS proposed rule published on April 4, 2023 updated
Medicare payment policies and rates for SNFs for FY 2024. The FY2023
SNF PPS proposed rule estimated that the aggregate impact of the
payment policies in the rule would result in a net increase of 3.7
percent, or approximately $1.2 billion, in Medicare Part A payments to
SNFs in FY 2024. We note that Section 1888(e)(4)(E) of the Act requires
the SNF PPS payment rates to be updated annually. These updates take
into account a number of factors, including but not limited to, wages,
salaries, and other labor-related costs. Specifics regarding the
process to update SNF PPS payment rates are discussed in the rule.\69\
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\69\ Medicare Program; Prospective Payment System and
Consolidated Billing for Skilled Nursing Facilities; Updates to the
Quality Reporting Program and Value-Based Purchasing Program for
Federal Fiscal Year 2024. https://www.federalregister.gov/documents/2023/04/10/2023-07137/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities.
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c. Skilled Nursing Facility (SNF) Value-Based Payment (VBP) Program
Staffing Measure
In the FY 2023 SNF PPS final rule, we adopted a new Total Nurse
Staffing quality measure under the SNF VBP Program, which is used to
provide an incentive to LTC facilities for improving quality of care
provided to residents.\70\ Performance on the Total Nurse Staffing
measure begins in FY 2024, and payment adjustments based on performance
on this measure (as well as others) occurs in FY 2026. This is a
structural measure that uses auditable electronic data reported to CMS'
PBJ system to calculate HPRD for total nurse staffing. Our proposal is
not to be duplicative of this existing measure; rather, we expect our
proposed minimum staffing standards to be complementary by establishing
a consistent and broadly applicable national floor at which residents
are at a significantly lower risk of receiving unsafe and low-quality
care. At the same time, the Total Nurse Staffing quality measure will
drive continued improvement in staffing across LTC facilities.
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\70\ https://www.cms.gov/newsroom/fact-sheets/fiscal-year-fy-2023-skilled-nursing-facility-prospective-payment-system-final-rule-cms-1765-f.
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d. Nursing Home Survey and Enforcement
The LTC minimum staffing standards proposed in this regulation are
part of the Federal participation requirements for LTC facilities and
these Federal participation requirements are the basis for survey
activities and for the minimum health and safety requirements that must
be met and maintained to receive payment and remain as a Medicare or
Medicaid provider. As such compliance with these requirements will be
assessed through CMS' existing survey, certification, and enforcement
process.\71\ Enforcement actions taken against LTC facilities that are
not in compliance with these Federal participation requirements are
called remedies. The agency that conducts on-site surveys cites
deficiencies that indicate the specific Federal participation
requirements that the facility did not meet. Sections 1819(h) and
1919(h) of the Act, as well as 42 CFR 488.404, 488.406, and 488.408,
provide that CMS or the State may impose one or more remedies in
addition to, or instead of, termination of the provider agreement when
the CMS or the State finds that a facility is out of compliance with
the Federal participation requirements. Specifically, enforcement
remedies that may be imposed include the following:
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\71\ https://www.cms.gov/medicare/provider-enrollment-and-certification/surveycertificationenforcement/nursing-home-enforcement.
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Termination of the provider agreement;
Temporary management;
Denial of payment for all Medicare and/or Medicaid
individuals by CMS;
Denial of payment for all new Medicare and/or Medicaid
admissions;
Civil money penalties;
State monitoring;
Transfer of residents;
Transfer of residents with closure of facility;
Directed plan of correction;
Directed in-service training; and
Alternative or additional State remedies approved by CMS.
In general, to select the appropriate enforcement remedy(ies), the
scope and severity levels of the deficiencies is assessed. The severity
level reflects the impact of the deficiency on resident health and
safety and the scope level reflects how many residents were affected by
the deficiency. The survey agency determines the scope and severity
levels for each deficiency cited at a survey.
As part of these survey and enforcement activities, we currently
publish data for all LTC facilities on the Care Compare website,
including number of certified beds, an overall Five Star rating, and
three individual star ratings in the categories of inspections,
staffing, and quality measurement.\72\ In addition, individual
performance measures are included on Care Compare. With respect to
staffing, this includes the following staffing data: total number of
nurse staff HPRD, RN HPRD, LPN/LVN HPRD, and NA HPRD, as well as some
additional staffing measures, including weekend hours. These published
data are collected through a variety of mechanisms, including during
CMS surveys (inspection data), through the reporting
[[Page 61366]]
of PBJ System and are also self-reported by LTC facilities to us.
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\72\ Centers for Medicare & Medicaid Services Medicare.gov. Find
and Compare Nursing Homes Providers near you https://www.medicare.gov/care-compare/?providerType=NursingHome&redirect=true.
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In general, facilities report employing three types of nursing
staff: RNs, LPNs/LVNs, and NAs. We have been moving towards more data-
driven enforcement, including use of the self-reported PBJ System data
to guide monitoring, surveys and enforcement of existing staffing
requirements. We continue to recognize the value of assessing the
sufficiency of a facility's staffing based on observations of resident
care conducted during the onsite survey. For example, while compliance
with numeric minimum staffing standards could be assessed using PBJ
System data, it is possible that due to a facility's layout,
management, and staff assignments, a facility could meet the numeric
staffing standards but not provide the sufficient level of staffing
needed to protect residents' health and safety. Resident health status
and acuity (for example, proportion of residents with cognitive decline
or use of ventilators) are also factors in determining adequate
staffing. Therefore, when assessing the sufficiency of a facility's
staffing it is important to note that any numeric minimum staffing
requirement is not a target and facilities must assess the needs of
their resident population and make comprehensive staffing decisions
based on those needs. The additional requirements proposed in this rule
to bolster facility assessments are intended to address this need and
guard against any attempts by LTC facilities to treat the minimum
staffing standards included here as a ceiling, rather than a floor.
In summary, the benefits and success of minimum staffing standards
are heavily dependent on the survey process. Therefore, in establishing
numerical minimum staffing standards our goal is to ensure that they
are both implementable and enforceable, as determined through both the
PBJ System as well as on-site surveys.
e. Medicaid Home and Community-Based Services
We remain committed to a holistic approach to meeting the long-term
care needs of Americans and their families. This requires a focus on
access to high-quality care in the community while also ensuring the
health and safety of those who receive care in LTC facilities. In the
proposed April 2023 Ensuring Access to Medicaid Services (Access NPRM)
and Medicaid and CHIP Managed Care Access, Finance, and Quality
(Managed Care NPRM), we proposed several policies intended to work
alongside those included in this proposed rule. These proposals require
that at least 80 percent of Medicaid payments for personal care,
homemaker and home health aide services be spent on compensation for
the direct care workforce (as opposed to administrative overhead or
profit); establish standardized reporting requirements related to
health and safety, beneficiary service plans and assessments, access,
and quality of care; and promote transparency through public reporting
on quality, performance, compliance as well as Medicaid managed care
plans' payment rates for direct care workers. Additionally, we remain
committed to facilitating transfers from LTC facilities to the
community through the continued implementation of the Money Follows the
Person program.\73\
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\73\ Money Follows the Person [bond] Medicaid, https://www.medicaid.gov/medicaid/long-term-services-supports/money-follows-person/index.html.
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Notably, we believe that the proposed minimum staffing standards
will improve quality of care which includes facilitating the transition
of care to community based care services; similar to findings that are
reported in the 2022 Nursing Home Staffing Study as well as potential
Medicare savings.
B. Provisions of the Proposed Regulations
As discussed above, meeting minimum staffing standards may be
influenced by and/or affect existing CMS initiatives and programs, and
programs within LTC facilities. Given these factors and the broad
spectrum of suggestions and inputs discussed, we acknowledge that there
are many considerations and potential policy options for establishing
minimum staffing standards. Therefore, we propose a comprehensive
staffing approach that consists of the three following elements: (1)
establishing new minimum nurse staffing standards based on case-mix
adjusted staffing; (2) revising the on-site RN requirement; and (3)
revising the existing facility assessment requirement. We believe, when
taken together, these three elements will establish a consistent and
broadly applicable national minimum staffing standards as a floor,
while also ensuring that LTC facilities staff beyond the minimum
staffing standards as needed, based on their resident population.
While we expect LTC facilities to meet the comprehensive staffing
standards, we acknowledge that there may be circumstances related to
the nursing workforce that require efforts to both ensure access to
care and maintain quality care and safety. Therefore, we are proposing
options for exemptions and a staggered implementation of the proposal's
components for meeting the minimum staffing standards. This
comprehensive approach aims to strike the appropriate balance between
ensuring resident health and safety, while guarding against unintended
consequences, and preserving access to care.
Our goal is to protect resident health and safety and ensure that
facilities are considering the unique characteristics of their resident
population in developing staffing plans, while balancing operational
requirements and supporting access to care. Moreover, the comprehensive
staffing standards will provide staff with the support they need to
safely care for residents.
We believe that the elements of the proposed comprehensive staffing
standards discussed in this rule support these goals and align with the
key function of the LTC facility participation requirements, which is
to establish minimum standards to ensure safety and quality care for
all residents.
We also acknowledge the impact that proposed minimum staffing
standards will have on the LTC facility industry and recognize the
potential for unintended consequences, such as facilities'
misinterpretation of the minimum staffing standards. Such
misinterpretation could result in inappropriate behaviors, such as
choosing to staff only at the minimum RN and NA HPRD requirements,
without adequate consideration of facility characteristics and resident
acuity and needs; healthcare workforce substitution (hiring for one
position by eliminating another); task diversion (assigning non-
standard tasks to a position); or gamesmanship around composition of
the patient population (avoiding residents with more complex medical
needs). Such actions would not result in the improved safety, quality,
and person-centered care that we seek in facilities. As such, we are
soliciting public comments on the policy proposals outlined below, in
particular the feasibility of the proposals, any unintended
consequences, and alternatives that we should consider. We will
consider all feedback to inform the final policy.
1. Nursing Services (Sec. 483.35)
a. Sufficient Staff (Sec. 483.35(a)(1))
In general, LTC facilities report employing three types of nursing
staff: RNs, LPN/LVNs, and NAs. RNs are assigned both administrative
roles and resident assessment and care planning, which typically
results in less hands-on
[[Page 61367]]
time with residents and more non-clinical skills (for example,
managerial and time management skills). They are able to assess
resident health problems and needs, develop and implement care plans,
and maintain medical records. LPN/LVNs are entry-level licensed nurses
providing basic level care under a RN or physician supervision such as
checking blood pressure, changing bandages and dressings, and
documenting patient care records. NAs spend the most time providing
care to residents by assisting with activities of daily living (for
example, feeding, bathing, and dressing). Moreover, roles for NAs may
differ from LPN/LVNs depending on the State.
NAs are paid on average $16.90/hour, whereas RNs and LVN/LPNs are
paid an average hourly wage of $37.11 and $28.17 in Nursing Care
Facilities.\74\ While the work of NAs and other direct care workers,
like home health aides and personal care assistants, requires
considerable technical and interpersonal skills, these workers
historically receive low pay, rarely receive benefits, and experience
high injury rates.\75\ Despite the rising demand for services, direct
care workers continue to earn poverty-level low wages. Almost one-half
of the direct care workforce (45 percent) live below 200 percent of the
Federal poverty level and about one-half (47 percent) rely on public
assistance. Recent research by the U.S. Assistant Secretary for
Planning and Evaluation finds that wages for direct care workers,
including NAs, lag behind workers in other industries with similar
entry-level requirements, exacerbating recruitment and retention
challenges. According to its findings, average hourly wages also vary
considerably State to State--as low as $10.90 for NAs in Louisiana to
as high as $18.66 in Alaska.
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\74\ Nursing and Residential Care Facilities--May 2022 OEWS
Industry-Specific Occupational Employment and Wage Estimates
(bls.gov).
\75\ Wages of Direct Care Workers Lower than Other Entry Level
Jobs in most States, Assistant Secretary for Planning and
Evaluation, April, 2023 https://aspe.hhs.gov/reports/dcw-wages.
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Current regulations at Sec. 483.35(a)(1)(i) and (ii) require
facilities to have sufficient numbers of licensed nurses and other
nursing personnel, including but not limited to NAs, available 24 hours
a day to provide nursing care to all residents in accordance with the
resident care plans.\76\ In the 2016 LTC final rule mentioned
previously,\77\ CMS described the complexity of establishing minimum
staffing standards at that time given that the PBJ System reporting
program had only been recently implemented. Therefore, we did not have
adequate information in terms of facility-level staffing data that
would be needed to establish minimum staffing standards. We further
stated that once a sufficient amount of data was collected and
analyzed, we could re-visit the establishment of minimum staffing
standards in LTC facilities. As of calendar year 2022, we have access
to about 6 years of self-reported data from the PBJ System which are
sufficient to examine the staffing issues in LTC facilities that still
persist and were exacerbated by the COVID-19 PHE.
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\76\ 42 CFR 483.35 https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.
\77\ Medicare and Medicaid Programs; Reform of Requirements for
Long-Term Care Facilities. (81 FR 68688) https://www.federalregister.gov/documents/2016/10/04/2016-23503/medicare-and-medicaid-programs-reform-of-requirements-for-long-term-care-facilities.
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According to CMS survey and enforcement data, over 1,000 facilities
were cited for insufficient staffing in 2022 and residents, family,
ombudsmen, researchers, and others continue to report to CMS that
understaffing negatively affects care. There is also considerable
variation in State staffing requirements. As previously stated, a
review of State staffing requirements indicates that 38 States and the
District of Columbia currently have minimum staffing standards in LTC
facilities, but these standards differ across States by staff types,
hours and measurement across States, and more so during the COVID-19
PHE.\78\ The proposed RN requirement of 0.55 HPRD is higher than every
State, and only lower than the District of Columbia. The proposed NA
requirement of 2.45 HPRD is higher than all States and the District of
Columbia, based on data from September 2022.
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\78\ State Policies Related to Nursing Facility (NF) Staffing
https://www.macpac.gov/wp-content/uploads/2022/03/State-Policies-Related-to-Nursing-Facility-Staffing.xlsx.
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For example, only 10 States out of the 38 States have minimum HPRD
standards for NAs ranging from 1.04 to 2.44 (see Table 2).
Table 2--HPRD Requirement for NAs by State
------------------------------------------------------------------------
CNAs
State (HPRD)
------------------------------------------------------------------------
1. California................................................ 2.4
2. Delaware.................................................. 1.6
3. Florida [Dagger].......................................... 2.0
4. Montana................................................... 1.2
5. New Jersey................................................ 1.04
6. New York.................................................. 2.2
7. Oregon.................................................... 2.16
8. Rhode Island.............................................. 2.44
9. South Carolina............................................ 1.63
10. Vermont.................................................. 2.0
------------------------------------------------------------------------
Notes: CNAs= certified nursing assistants or nursing assistants; HPRD=
hours per resident day.
[Dagger] FL revised CNA HPRD from 2.45 to 2.0 on 4/2022.
Source: RTI International, 2021, Review of State Policies Related to
Nursing Facility Staffing.
Some States have implemented a total hour per resident day (HPRD)
model, with some including licensed nurses in this calculation, whereas
others exclude LPN/LVNs but include RNs, DONs, and NAs only. For
example, the District of Columbia requires a minimum daily average of
4.1 hours of direct nursing care per resident per day (with an
opportunity to adjust the requirements above or below this level, as
determined by the Director of the Department of Health), an RN on site
24 hours a day, 7 days a week, plus additional nursing and medical
staffing requirements.\79\ Some States implemented a ratio of numbers
of full-time equivalent NAs per resident. For example, California
requires 3.5 HPRD for total nurse staffing with at least 0.24 of those
hours provided by RNs, and 2.4 HPRD for NAs, and no HPRD required for
LPN/LVNs. Massachusetts requires 3.58 HPRD for total nurse staffing
with at least 0.508 of those hours provided by a RN.\80\ Arkansas
requires at least 3.36 average HPRD for nurse and non-nurse staff each
month to include licensed nurses, NAs, medication assistants,
physicians, physician assistants, licensed physical or occupational
therapists or licensed therapy assistants, registered respiratory
therapists, licensed speech language pathologists, infection
preventionists, and other healthcare professionals licensed or
certified in the State, plus requirements for minimum numbers of
licensed nurses per residents per shift. There is also limited evidence
on how these different staffing standards were developed and their
impact.
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\79\ https://doh.dc.gov/sites/default/files/dc/sites/doh/publication/attachments/Nursing_Facility_Regulations_Health_Care_Facilities_Improvement_2012.pdf.
\80\ https://theconsumervoice.org/uploads/files/issues/CV_StaffingReport.pdf.
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[[Page 61368]]
The 2022 Nursing Home Staffing Study \81\ included an analysis of
PBJ System data for the fourth quarter of 2019 through the first
quarter of 2022. The 2022 Nursing Home Staffing Study, as discussed
previously, provided CMS with findings to inform the proposal for
minimum staffing standards, and discussed trade-offs associated with
balancing cost and feasibility with implications for acceptable quality
care and safety, especially among the lowest performing facilities
(that is, at or below the 25th percentile for total safety and quality
measure scores) that are at the most risk for providing unsafe care.
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\81\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare
and Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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After considering all of the available evidence and extensive
comments provided, we are proposing revisions to the Nursing Services
regulations at Sec. 483.35 to establish national, quantitative minimum
staffing standards to ensure all facilities provide at least the same
baseline level of high-quality and safe care to residents across all
participating LTC facilities. We propose to revise Sec.
483.35(a)(1)(i) and (ii) to further define ``sufficient numbers'' by
establishing a numerical minimum level for HPRD for RNs and NAs. We
also propose to revise Sec. 483.5 to include the definition of ``hours
per resident day'' (HPRD), that is, staffing hours per resident per day
is the total number of hours worked by each type of staff divided by
the total number of residents as calculated by CMS.\82\ Specifically,
at Sec. 483.35(a)(1)(i) we propose individual nurse staffing type
standards for RNs and NAs. We propose to require facilities to have
minimum staffing standards of 0.55 HPRD of RNs and 2.45 HPRD of NAs as
well as to maintain sufficient additional nursing personnel, including
but not limited to LPN/LVNs, and other clinical and non-clinical staff,
to ensure safe and quality care, based on the proposed facility
assessment requirements at Sec. 483.71. CMS is also seeking comments
on a minimum total nurse staffing standard of 3.48 HPRD discussed later
in the rule.
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\82\ https://data.cms.gov/provider-data/dataset/4pq5-n9py.
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We are not proposing minimum nurse staffing standards that include
HPRD for licensed nurses (that is, RNs plus LPN/LVNs) nor for total
nurse staffing (that is, RNs, LPN/LVNs, and NAs). This proposed policy
is based on the 2022 Nursing Home staffing study findings and other
literature evidence demonstrating that RNs and NAs have a larger effect
on quality than LPN/LVNs. In addition, literature and statistical
evidence suggests that improved clinical outcomes are associated with
increasing the HPRD rates of RNs and NAs \83\ especially among nursing
homes that have a high reliance on Medicaid.\84\ Moreover, when LPN/
LVNs work with higher numbers of HPRD for RNs and NAs (that is, total
nurse staff) it appears to reduce delayed or omitted care and increase
gross cost savings to Medicare.\85\ We believe that establishing
national, numerical standards of direct care hours will improve safety
and quality in many LTC facilities. By creating a consistent Federal
floor for staffing expectations, we will better define the minimum
number of care hours residents should receive to protect health and
safety, while also facilitating strengthened oversight and enforcement.
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\83\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare
&and Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
\84\ Bowblis J.R. (2011). Staffing ratios and quality: an
analysis of minimum direct care staffing requirements for nursing
homes. Health services research, 46(5), 1495-1516. https://doi.org/10.1111/j.1475-6773.2011.01274.x.
\85\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare &
Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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As an example, when establishing the proposed HPRD level of 0.55
for RNs and 2.45 for NAs, we note that the minimum number of RN hours
(that is 0.55 HPRD) provided in a facility that has 100 residents and
runs an 8-hour shift per 24 hours, would require a total of 55 RN hours
per 24 hours.\86\ In other words, at least two RNs on staff each 8-hour
shift, plus a third RN for one shift, would be necessary in this
scenario although no per shift minimum is being established in this
rule. Similarly, the minimum number of NA hours (that is 2.45 HPRD)
provided in a facility that has 100 residents and runs an 8-hour shift
per 24 hours will require at least a total of 245 NA hours per 24
hours.\87\ In other words, at least 10 NAs on staff each 8-hour shift,
plus a third NA for one shift would be necessary in this scenario
although no per shift minimum is being established in this rule.
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\86\ 100 residents x 0.55HPRD = 55 RN hours for 24 hours; or 18
RN hours/8-hour shift; that is ~2 RNs.
\87\ 100 residents x 2.45HPRD = 245 NA hours for 24 hours; or 81
NA hours/8-hour shift; that is ~10 NAs.
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These proposed levels for hours of care would establish the minimum
nurse staffing levels needed to provide safe and high-quality nursing
services to each resident per day. We underscore that these standards
reflect only the absolute minimum floor adjusting for the average
acuity across all LTC facilities, and the required hours of nursing
care may be greater but never lower than the proposed minimum
standards, if the acuity needs of residents in a facility requires a
higher level of care. Additionally, the proposed staffing levels
require all facilities to meet at least this minimum floor, even if the
facility has below average acuity, given that resident population can
shift more rapidly than staffing plans; most facilities have either an
average acuity or higher of resident population; and as noted above,
the evidence can also support a higher range of staffing thresholds.
Notably, we are proposing to specify HPRD for RNs and NAs in the
minimum staffing requirement at Sec. 483.35(a) and are not proposing a
total nurse staffing level under which facilities have the flexibility
to decide between types of licensed nurses to meet the minimum
requirement. We have taken this approach given the evidence that shows
a strong positive association between RN staffing levels and safety and
quality, as well as NA staffing levels at higher HPRDs. Literature
evidence also indicates that the increased presence of RNs in nursing
facilities would help address several issues.
First, research evidence suggests that greater RN presence has been
associated with higher quality of care and fewer deficiencies. Second,
it has been reported in the literature that where standards provide
flexibility as between types of licensed nurses (that is, do not
specify RN hours), LPN/LVNs may find themselves practicing outside of
their scope of practice partly because there are not enough RNs
providing direct patient care and supervision of LPN/LVNs. The
specificity of this approach would increase the number of hours per day
that a LTC facility must have RNs in the facility and would alleviate
concerns about LPN/LVNs engaging in activities outside their scope of
practice in the face of resident need during times when no RN is on
site (80 FR 42168, 42200). Moreover, to prevent a high rate of unusual
patient safety events, the National Academy of Medicine (NAM) (formerly
the Institute of Medicine (IOM)) suggests having adequate staffing
levels, specifically NAs, who provide most of the care to nursing home
residents.\88\ In addition, our proposal,
[[Page 61369]]
which focuses on sufficient numbers of nursing staff, does not
contemplate staffing levels for non-nursing staffing because nursing
staff are most critical to ensuring minimum standards of care, and
there is insufficient information on non-nurse staffing levels in the
PBJ System and other available data sources that limits our efforts to
examine staffing requirements for non-nurse staff at this time. We
solicit comment on the need to allow for substitution, such as
substituting LPN/LVNs for NAs, in extraordinary cases and specifically
what extreme circumstances would appropriately allow for such
substitution.
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\88\ Institute of Medicine (US) Committee on the Work
Environment for Nurses and Patient Safety. Keeping Patients Safe:
Transforming the Work Environment of Nurses. Edited by Ann Page,
National Academies Press (US), 2004. doi:10.17226/10851.
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As noted, based on the findings reported in the 2022 Nursing Home
Staffing Study, information gathered through the FY2023 SNF PPS RFI,
listening sessions, assessment of the PBJ System data, and review of
the literature evidence, we are proposing individual minimum staffing
levels at 0.55 HPRD for RNs and 2.45 HPRD for NAs. In establishing this
proposal, we considered the context of substantial cost that the
proposed policy may impose on LTC facilities, especially those with
limited resources that may face difficult decisions in terms of how to
allocate funding and resources (see Regulatory Impact Section for more
detail). Likewise, the evidence from the 2022 Nursing Home Staffing
Study supports the proposed minimum staffing level for RNs and NAs for
improving safety and leading to higher quality care. As such, we are
proposing minimum nurse staffing standards for these two types of
nursing staff that we believe are reasonable and creates meaningful,
positive impact on resident quality and safety. These standards will
especially help ensure all facilities reach acceptable levels of safety
and quality care, working in tandem with CMS' other quality improvement
programs that focus on raising performance beyond minimum requirements.
The proposed minimum nurse staffing standards would create broadly
applicable minimum standards at which all residents across all LTC
facilities would be at a significantly lower risk of receiving unsafe
and low-quality care. LTC facilities would be required to staff above
these minimum adjusted baseline levels, as appropriate, to address the
specific needs of their unique resident population. This additional
staffing should be based at the facility level using the facility
assessment and an examination of resident acuity levels.
LTC facilities are also responsible for compliance with other
requirements for participation, including but not limited to Sec.
483.24, which requires that each resident must receive and the facility
must provide the necessary care and services to attain or maintain the
highest practicable physical, mental, and psychosocial well-being,
consistent with the resident's comprehensive assessment and plan of
care. Therefore, we propose to add a new Sec. 483.35(a)(1)(v) to
reinforce this standard. Specifically, at Sec. 483.35(a)(1)(v), we
propose to specify that compliance with minimum HPRD for RN and NA
should not be construed as approval for a facility to have fewer
nursing and non-nursing staff than the number of staff with the
appropriate competencies and skills sets necessary to assure resident
safety, and to attain or maintain the highest practicable physical,
mental, and psychosocial well-being of each resident, as determined by
resident assessments, acuity and diagnoses of the facility's resident
population in accordance with the facility assessment required at
current Sec. 483.70(e)), which we propose to be redesignate as new
Sec. 483.71.
The acuity and characteristics of residents in LTC facilities has
continued to evolve and change over the years. For example, there are
more residents with a psychiatric diagnosis with reports showing that
the proportion of residents with schizophrenia increased from 6.5
percent in 2000 to 12.4 percent in 2017.\89\ There has also been an
increase in the percentage of facilities with an Alzheimer's unit and
more residents appear to need assistance with activities of daily
living. For example, it was reported that on average 96 percent of
residents at the facility level needed assistance with bathing in 2015,
compared to the national average of 89 percent of residents in
1985.\90\ Also the percentage of residents with bladder incontinence
has also increased over the years from 49.3 to 62.1 percent.\3\
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\89\ M. Barton Laws, Aly Beeman, Sylvia Haigh, Ira B. Wilson,
Ren[eacute]e R. Shield, Prevalence of Serious Mental Illness and
Under 65 Population in Nursing Homes Continues to Grow. Journal of
the American Medical Directors Association,Volume 23, Issue 7, 2022,
Pages 1262-1263, https://doi.org/10.1016/j.jamda.2021.10.020.
\90\ Fashaw, Shekinah A et al. ``Thirty-Year Trends in Nursing
Home Composition and Quality Since the Passage of the Omnibus
Reconciliation Act.'' Journal of the American Medical Directors
Association vol. 21,2 (2020): 233-239. doi:10.1016/
j.jamda.2019.07.004.
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Furthermore, there appears to be an increase in the proportion of
younger residents, under 65 years of age, in part due to severe mental
illness and substance use disorders, who have different needs from the
traditional nursing home population.\91\ Given the variation in
resident acuity and complexity of care required for a facility's unique
resident population, facilities must make thoughtful, informed staffing
plans and decisions that are focused on meeting resident needs,
including maintaining or improving resident safety and quality of life,
which will often result in the need for a facility to staff above the
minimum nurse staffing requirement. Based on the needs of its resident
population, an individual facility may need to maintain levels of HPRD
for RN, NA and other staffing that surpasses the proposed minimum nurse
staffing HPRD.
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\91\ Laws, M Barton et al. ``Changes in Nursing Home Populations
Challenge Practice and Policy.'' Policy, politics & nursing practice
vol. 23,4 (2022): 238-248. doi:10.1177/15271544221118315.
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This need for increased staff would be evidenced by the facility
assessment (Sec. 483.70(e)) and resident assessments (Sec. 483.20)
which would require facilities to make staffing and care planning
decisions that account for resident acuity, physical/cognitive
abilities, conditions, diagnoses, etc . . . Compliance with the
numerical minimum staffing requirement is necessary but not necessarily
sufficient to meet staffing needs for every facility. Later in this
proposed rule, we discuss an additional element of this comprehensive
proposal, revising the facility assessment requirement at Sec.
483.70(e) which we believe would help avoid the unintended consequence
of facilities inappropriately staffing at the minimum staffing
requirement.
We note that, as discussed previously, while the 0.55 and 2.45 HPRD
standards were developed using case-mix adjusted data sources, the
standards themselves will be implemented and enforced independent of a
facility's case-mix. In other words, facilities must meet the 0.55 RN
and 2.45 NA HPRD standards, regardless of the individual facility's
patient case-mix. Based on the October 2021 Care Compare data, we
estimate that approximately 6,094 facilities are staffed below a level
of 0.55 for RNs, and approximately 9,998 are currently staffed below a
level of 2.45 for NAs out of an estimated 14,688 total facilities with
complete information. These estimates do not reflect proposed
exemptions discussed below. Similarly, we recognize that there are
facilities currently staffing at levels greater than or equal to 0.55
RN HPRD (n=8,594) and 2.45 NA HPRD (n=4,690) who would not be directly
impacted by this proposed policy at this time. However, staffing should
be assessed on an ongoing basis and we emphasize that
[[Page 61370]]
the facility must provide adequate nursing care to meet the needs of
each resident.
Typical characteristics of LTC facilities that may need to staff up
to meet this minimum requirement, based on having current staffing,
below the proposed levels are:
For-profit facilities (compared to government and non-
profit facilities).
Larger facilities.
Freestanding LTC facilities (relative to hospital-based).
Facilities that are part of a Continuing Care Retirement
Community.
Facilities with higher shares of Medicaid residents.
Facilities that are Special Focus Facilities (SFF) or SFF
candidates.
Rural facilities.
We note that the existing statutory waiver for Medicaid NFs,
authorized by section 1919(b)(4)(C)(ii) of the Act and implemented at
Sec. 483.35(e) for a State to waive the requirements of Sec.
483.35(b) to provide licensed nurses on a 24-hour basis would still be
in place for NFs to pursue through the current waiver process. The
statutory waiver is discussed further under Section II.B. 3. ``Hardship
Exemption from the Minimum Hours Per Resident Day Requirements for RNs
and NAs.'' In addition, we propose to add new paragraphs (a)(1)(iii)
and (iv) to existing Sec. 483.35 to specify that facilities may be
exempted from the minimum HPRD requirement for RNs and NAs using
separate criteria, and to indicate the period of time that will be
assessed to determine compliance.
At new Sec. 483.35(a)(1)(iii), we propose facilities that are
found non-compliant with the HPRD requirement for RNs and NAs and meet
certain eligibility criteria may be exempted from the 0.55 HPRD for RNs
and/or 2.45 HPRD for NAs requirements. The details of this exemption
framework and the specific eligibility criteria are discussed further
in section II.B.3. ``Hardship Exemption from the Minimum Hours Per
Resident Day Requirements for RNs and NAs.'' of this rule. At new Sec.
483.35(a)(1)(iv), we propose that determinations of compliance with
minimum HPRD requirements for RNs and NAs will be made based on the
most recent available quarter of PBJ System data submitted in
accordance with the requirements at existing Sec. 483.70(p)
(``Mandatory Submission of Staffing Information Based on Payroll Data
in a Uniform Format'').
We solicit comments on the timeframe used to determine compliance
with the minimum HPRD, specifically if the lookback period should be
longer, for example 1 year to cover a full certification period, or
some other timeframe to ensure the most reliable and realistic
assessment of staffing data. We also invite public comments on the
following proposals discussed in this section. As highlighted
throughout the discussion, we acknowledge multiple avenues for
establishing a minimum nurse staffing requirement. Based on the
proposed policy presented in this rule, we are seeking feedback
regarding whether or not alternative policy options are necessary to
meet and maintain acceptable quality and safety within LTC facilities,
while balancing a facility's ability to comply and ensure access to
care.
In developing the proposed rule, we considered varying staffing
models that are available and different approaches we could have
adopted for establishing minimum nurse staffing standards. For example,
we could have adopted multiple different types of combinations of
staffing requirements, such as a four-part requirement (inclusive of a
total nurse staffing ratio, RNs, LPN/LVNs, and NAs) or a three-part
requirement (inclusive of a total nursing staffing ratio, RNs, NAs or
separate standards for RNs, LPN/LVNs, and NAs). We also considered that
LTC facilities differed across States in their reliance on LPN/LVNs,
which was one of the reasons that we did not set a minimum requirement
for LPN/LVNs, in addition to available evidence on LPN/LVN associations
with safety and high--quality care. Alternatively, we could have
proposed staffing requirements for professionals such as social
workers, therapists, feeding assistants and other non--nurse staff in
the minimum staffing requirement. However, the HPRD reported in PBJ
System data for non-nurse staff were insufficient for use in
establishing minimum staffing requirements at this time.
We propose to use HPRD that LTC facilities self-report to CMS and
currently reported and auditable in the CMS' PBJ System. However, we
recognize that staffing levels can be measured in at least 19 different
ways with HPRD being the most frequently used.\92\ This includes
measuring staffing levels as either full time equivalent per resident,
full time equivalent per 100 beds, minutes per resident day, or nursing
staff to resident ratios. Alternative minimum staffing policy options
could also focus on the need to increase or decrease the number of HPRD
or FTEs by nurse staff and/or type or on specifying the number by shift
(including day, evening, night, or weekends or over a 24-hour period).
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\92\ Clemes, S., Wodchis, W., McGilton, K., McGrail, K., &
McMaho, M. (2021). The relationship between quality and staffing in
long-term care: A systematic review of the literature 2008-2020.
International Journal of Nursing Studies, 122, https://doi.org/10.1016/j.ijnurstu.2021.104036.
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We are soliciting comments on establishing a total nurse staffing
standard such as 3.48 HPRD among other alternatives, in place of a
requirement only for RNs and NAs, or in addition to a requirement for
RNs and NAs. For example, we considered an alternative 3.48 HPRD for
the total nurse staffing standard--inclusive of the 0.55 HPRD RN and
2.45 HPRD NA minimum standards--based on the evidence from the 2022
Nursing Home Staffing Study, in addition to other factors discussed
throughout the proposed rule. We considered 0.55 HPRD for RNs and 2.45
HPRD for NAs as a part of this alternative total nurse staffing
standard based on the evidence from the 2022 Nursing Home Staffing
Study and other inputs; 0.55 HPRD for RN and 2.45 HPRD for NA staffing
were found to be positively associated with safety and quality.
Furthermore, NAs spend the most time providing care to residents by
assisting with activities of daily living (for example, feeding,
bathing, and dressing). Including an overarching minimum total staffing
standard, such as 3.48 HPRD, could enable LTC facilities flexibility on
staffing while protecting residents from preventable negative outcomes
and would discourage facilities that currently meet the individual RN
and NA minimums from decreasing total staffing. We seek comments on the
necessity of a total staffing standard and whether a total staffing
standard should be adopted alongside individual standards. We
specifically seek comment on a standard of 3.48 HPRD among other
alternatives.
To maximize the usefulness of the feedback from interested parties
on alternative policy options, we emphasize that the recommended policy
must support and promote acceptable quality and safety in LTC
facilities as the intended goal. We seek comments on the effectiveness
of a minimum staffing standard in maintaining quality and safety and
ways to minimize administrative burden, both for LTC facilities and for
CMS in maintaining and enforcing such a standard and enhance compliance
among LTC facilities through the use of automated data collection
techniques or other forms of information technology.
We encourage commenters to submit evidence and data to support
their recommendations to the extent possible. All comments will be
reviewed and analyzed, including consideration for
[[Page 61371]]
potential future rulemaking. We welcome comments on the following
questions:
What are the benefits and trade-offs associated with a
two-part minimum nurse staffing standard as proposed (inclusive of RNs
and NAs) relative to a three-part standard (inclusive of a 3.48 HPRD
for total nurse staffing, RNs, and NAs) or a four-part standard
(inclusive of a total nurse staffing ratio, RNs, LPNs/LVNs, and NAs)?
What evidence did States rely on when they adopted their
specific minimum nurse staffing standards, both with respect to HPRD
and the inclusion or exclusion of certain nursing staff, and what is
the rate of compliance?
Whether we should consider a case-mix adjusted staffing
HPRD for each facility to assess compliance with the minimum staffing
standards? A case-mix adjusted staffing HPRD would adjust the minimum
staffing levels based on the health status of the residents in each
facility (known as ``case-mix adjustment''). Specifically, the case-mix
adjustment methodology aggregates data from each resident's assessment
(the Minimum Data Set (MDS)) to identify the general level of acuity of
each facility's residents. The level of acuity is then combined with
the facility's self-reported (that is, unadjusted) staffing information
to calculate the level of staff the facility has that is equivalent to
other facilities.
If we were to adjust the minimum staffing levels based on the
health status of the residents in each facility to ensure that staffing
levels are adequate to meet the unique needs of the residents in each
facility--
What steps can CMS take to support LTC facilities in
predicting what their case-mix adjusted staff might be and hire in
expectation of that adjusted staffing level? What resources will
facilities need to proactively calculate their existing HPRD for
nursing staff, and what may be needed?
What alternative policies or strategies should we consider
to ensure that we enhance compliance, safeguard resident access to
care, and minimize provider burden? Are there are other alternative
policy strategies we should consider?
b. Registered Nurse (Sec. 483.35(b)(1))
The existing LTC facility staffing regulations require an RN to be
on site 8 consecutive hours a day for 7 days a week (Sec.
483.35(b)(1)).\93\ This requirement serves as a minimum to protect the
health and safety of LTC facility residents. In other words, an RN is
required to be onsite for a total of 8 consecutive hours out of 24
hours a day. The LTC facility may decide to allocate all 8 consecutive
hours of RN time to one day shift or an evening shift for a 24-hour
day, similarly to the HPRD proposed for RNs.
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\93\ 42 CFR 483.35, https://www.whitehouse.gov/briefing-room/statements-releases/2022/02/28/fact-sheet-protecting-seniors-and-people-with-disabilities-by-improving-safety-and-quality-of-care-in-the-nations-nursing-homes/.
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However, to prevent avoidable patient safety events, some
organizations have recommended higher recommendations to each RN
staffing levels. For example, in 2022, the National Academies of
Science, Engineering, and Medicine (NASEM) published a report that
recommended direct-care RN coverage 24 hours a day, 7 days a week.\94\
Like NASEM, we are concerned that even with minimum HPRD standards,
these residents are at risk for preventable safety events when there is
no RN on site, particularly during evenings, nights, weekends, and
holidays. Therefore, to avoid placing LTC facility residents at risk of
preventable safety events due to the absence of an RN, we are proposing
to revise Sec. 483.35(b)(1) to require LTC facilities to have an RN
onsite 24 hours a day, 7 days a week.
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\94\ National Academies of Sciences, Engineering, and Medicine.
2022. The National Imperative to Improve Nursing Home Quality:
Honoring Our Commitment to Residents, Families, and Staff.
Washington, DC: The National Academies Press. https://doi.org/10.17226/26526.
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LTC facilities provide care for residents with increasing medically
complex and acute health conditions that require substantial resources
and care. This care is provided or supervised by an RN. In the FY 2016
final rule, we indicated that CMS was proposing changes to the LTC
facility participation requirements to ensure that LTC facilities are
providing quality and safe care to medically complex residents among
others (81 FR 68688). We noted that not only has the acuity of the
resident population generally increased, but there has also been a
dramatic increase in the number of residents recovering from an acute
episode of major surgery, injury, or illness (sub-acute resident
population).
Medicare payment policy has also contributed to higher acuity
levels in LTC facilities. After Medicare implemented the prospective
payment system for hospitals in 1983, there were shorter hospital stays
for Medicare beneficiaries and increased funding for post-acute stays
in LTC facilities (80 FR 42168, 42174-42175). This payment policy
resulted in a growing sub-acute resident population in LTC facilities
that would have previously experienced longer hospital stays. Also,
with the increase in alternatives to LTC facilities, such as assisted-
living facilities and home care, LTC facilities are caring for more
dependent residents who require more complex basic medical care and
rehabilitative services. In addition, LTC facilities are caring for a
significant number of residents with dementia, depression, or other
behavioral health issues. LTC facilities today have even been referred
to as ``mini-hospitals.'' \95\
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\95\ Three challenges of long-term care (LTC) nursing. Health.
Accessed at https://www.wolterskluwer.com/en/expert-insights/three-challenges-of-longterm-care-ltc-nursing. Published on May 5, 2015.
Accessed on February 13, 2023.
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While RNs and LPNs/LVNs appear to provide some similar nursing
services, such as administering medications, there are crucial
differences. Compared to LPNs and LVNs, RNs' scope of practice is
broader and they receive more education.\96\ Most importantly, RNs
practice independently and are qualified to conduct clinical nursing
assessments, whereas LPNs and LVNs require an RN or a physician's
supervision. This is a critical feature in the RN scope of practice
given the higher acuity of today's LTC facility resident population and
the need to properly clinically assess residents to ensure they are
receiving the appropriate care. Also, it has been reported in the
literature that LPN/LVNs may find themselves practicing outside their
scope of practice when there is not sufficient RN staffing in a
facility to provide direct or supervised resident care (80 FR 42168,
42200). Thus, we are also proposing that the RN be available to provide
direct resident care around the clock.
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\96\ Jividen, S. RN vs. LPN. Nurse.org. Accessed at https://nurse.org/resources/rn-vs-lpn/. Published on July 15, 2021. Accessed
on February 13, 2023.
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For several decades, studies and gray literature materials other
than traditional research publications, such as opinion pieces,
advocacy materials, and non-statistically rigorous research published
by government agencies have recommended an RN onsite 24-7 in LTC
facilities for similar reasons. As noted previously in this proposed
rule, the 2022 NASEM report, recommended that LTC facilities have 24
hours a day, 7 days a week RN onsite coverage. NASEM noted that most
LTC facilities provide care for both short-term residents who require
rehabilitation or subacute care and long-term care for residents. While
the acuity of short-term residents would vary greatly depending upon
their reason for admission and condition, NASEM noted that the long-
term care residents typically have multiple chronic conditions that
require professional nursing surveillance to
[[Page 61372]]
monitor the residents for changes that might require hospitalization or
potentially be life-threatening.\97\ As noted previously in this rule,
it is the RN that has the education, training, and qualifications to
conduct clinical nursing assessments. The report also suggested that
there be additional RN coverage when needed and that the DON not be
counted towards this requirement.
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\97\ FN #93, NASEM, p. 58.
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In the 2016 LTC facility final rule,\98\ we noted that several
commenters, including the Center for Medicare Advocacy and the
California Advocates for Nursing Home Reform, recommended that LTC
facilities have 24-hours RN onsite coverage. These commenters argued
that 24-hours RN coverage was necessary due to the increased acuity in
residents and that expert nursing skill is needed to ``anticipate,
identify and respond to changes in [a resident's] condition,'' as well
as for the residents to have appropriate rehabilitation services and
the best chance for being discharged home in a safe and timely manner
(80 FR 68754). Other commenters noted that RN staffing was essential
for safe and effective resident care.\99\ While we agreed with the
commenters on the importance of staffing, and noted that due to their
education and licensure, RNs possess the skills that are ``essential
for timely assessment, intervention and treatment,\100\ we did not
establish a minimum nursing staff standard at that time for the reasons
noted in the 2016 final regulation. Instead, at Sec. 483.35, we
finalized an approach that required the LTC facility to have sufficient
nursing staff to assure safety and well-being of each resident as
determined by resident assessments and individual plans of care and
considering the number and acuity of diagnoses of the facility's
resident population in accordance with the facility assessment required
at Sec. 483.70(e). Among other reasons, we did not propose a 24-hour
RN onsite requirement due to lack of sufficient data including PBJ
System data. As discussed previously in this proposed rule, we did not
yet have the data from the PBJ System or another reliable source upon
which to base a minimum staffing requirement. We now also have the Abt
study discussed above that demonstrated the importance of RNs to the
quality-of-care residents receive. Others, including professional
nursing organizations, also contended that the requirements should be
focused on resident acuity and the competencies and skill sets of the
nursing staff than a specific numerical requirement for categories of
staff (80 FR 42168, 42200 and 42201). We were also concerned that some
LTC facilities, especially those in rural and underserved areas, might
find complying with such a requirement especially challenging (81 FR
68694, 68752, 68755).
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\98\ Medicare and Medicaid Programs; Report of Requirements for
Long-Term Care Facilities. 81 FR 68688. Published on October 4,
2016.
\99\ FN #24, p. 68754.
\100\ FN #24, p. 68754.
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We also heard these same concerns reiterated in the FY 2023 SNF PPS
RFI comments and the interested parties listening sessions discussed
previously. These commenters noted that RNs, by the virtue of their
education and training, have diagnostic and assessment skills that
other types of nurse staff do not. They noted that LTC facilities have
populations with the highest needs and complex medical issues and the
availability of RNs for resident assessments is necessary and could
prevent avoidable resident hospitalizations. Based on comments received
in the FY 2023 SNF PPS RFI, NASEM's recommendations, and other gray and
peer-reviewed literature, we propose that all LTC facilities must have
an RN onsite 24 hours a day, 7 days a week at Sec. 483.35(b)(1).
An existing statutory waiver for Medicare SNFs, set out at section
1819(b)(4)(C)(ii) of the Act and implemented at Sec. 483.35(f),
permits the Secretary to waive the requirements of Sec. 483.35(b) to
provide the services of a RN for more than 40 hours a week, including
the director of nursing. This waiver would still be in place for SNFs
to pursue through the current waiver process. Facilities would also use
this process to pursue a waiver of the 24 hours a day, 7 days a week
requirement. However, we discuss certain criteria that may exempt a LTC
facility (SNF or NF) from meeting the proposed HPRD levels for RNs and
NAs specifically established in Sec. 483.35(a)(1)(i) and (ii) in
section III.B.4 of this rule. We welcome comments regarding our
proposed requirements for each LTC facility to have an RN on site 24
hours a day, 7 days a week that is available for direct resident care.
In addition to our proposed 24-hour, 7 days a week requirement for
an RN, we continue to maintain a separate requirement for the DON. All
LTC facilities must designate an RN to serve as the DON on a full-time
basis (Sec. 483.35(b)(2)). The current rule stipulates that the DON
can serve as a charge nurse only if the facility has an average daily
occupancy of 60 or fewer residents (Sec. 483.35(b)(3)). Since the DON
must be an RN, the DON is included in the proposed nurse minimum
staffing requirements as an RN. All RNs with administrative duties,
including the DON, should be available for direct resident care when
needed. However, the DON, as well as other nurses with administrative
duties, would probably have limited time to devote to direct resident
care. We are concerned that for some LTC facilities having the DON as
the only RN on site might be insufficient to provide safe and quality
care to residents. This concern was also expressed in the NASEM 2022
publication discussed previously, in which the NASEM recommended that
the DON not be counted in the requirement for an RN 24 hours, 7 days a
week.\101\ All comments regarding these questions will be reviewed and
analyzed, including consideration for potential future rulemaking.
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\101\ National Academies of Sciences, Engineering, and Medicine.
2022. The National Imperative to Improve Nursing Home Quality:
Honoring Our Commitment to Residents, Families, and Staff,
Recommendation 2B.
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We welcome comments on the following questions:
Does your facility, or one you are aware of, have an RN
onsite 24 hours a day, 7 days a week? If not, how does the facility
ensure that staff with the appropriate skill sets and competencies are
available to assess and provide care as needed?
If a requirement for a 24 hour, 7 day a week onsite RN who
is available to provide direct resident care does not seem feasible,
could a requirement more feasibly be imposed for a RN to be
``available'' for a certain number of hours during a 24 hour period to
assess and provide necessary care or consultation provide safe care for
residents? If so, under what circumstances and using what definition of
``available''?
Should the DON be counted towards the 24/7 RN requirement
or should the DON only count in particular circumstances or with
certain guardrails? Please explain why or why not.
Are there alternative policy strategies that we should
consider to address staffing supply issues such as nursing shortages?
2. Administration (Sec. 483.70)
We believe that a comprehensive approach to establishing staffing
requirements is necessary to ensure that facilities are making
thoughtful, informed staffing plans and decisions to support the
health, safety, and well-being of residents. In particular, we want to
avoid unintended consequences of establishing a minimum nurse
[[Page 61373]]
staffing requirement that could lead to a regression by those
facilities currently staffing above the staffing requirement or
facilities only staffing at the minimum level proposed without
considering whether resident acuity or resident census, requires
additional staffing above that floor. It is our expectation that LTC
facilities will consider their capabilities and capacity, as well as
the number, acuity, and diagnoses of their residents when developing
staffing schedules.
As previously discussed, in 2016, we released a final rule that
revised the requirements that LTC facilities must meet to participate
in the Medicare and Medicaid Programs.\102\ As part of those revisions,
we finalized revisions at Sec. 483.70(e), Administration, to require
facilities to conduct, document, and annually review a facility-wide
assessment to determine what resources are necessary to care for its
residents competently during both day-to-day operations and
emergencies. This facility-wide assessment requires LTC facilities to
determine adequate staffing type and level based on the number of
residents, resident acuity, range of diagnoses, the content of care
plans, and other factors. LTC facilities are also required to address
and document in their facility assessments their resident population
(that is, number of residents, overall types of care and staff
competencies required by residents, and cultural aspects), resources
(for example, equipment, and overall personnel), and a facility-based
and community-based risk assessment.
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\102\ https://www.federalregister.gov/documents/2016/10/04/2016-23503/medicare-and-medicaid-programs-reform-of-requirements-for-long-term-care-facilities.
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While we assumed when we finalized the 2016 rule that most LTC
facilities already conducted some type of facility assessment of the
resident population and resources required as part of their normal
strategic planning, our revisions aimed to ensure that facilities had a
formal process for consistently conducting and documenting these
assessments and keeping them up-to-date. The formal facility assessment
process requires facilities to make thoughtful, person-centered
staffing plans and decisions focused on meeting resident needs that may
help improve the safety of residents. We believe this approach will
help facilities comply with the requirement to have sufficient staff,
which is investigated during surveys.
One of the goals of the 2016 revisions to the LTC facility
participation requirements for health and safety was to ensure that our
regulations align with current clinical practice and allow flexibility
to accommodate multiple care delivery models to meet the needs of
diverse populations that receive services in these facilities. As noted
previously, given the limitations of the PBJ System data in 2016, we
enacted a competency-based approach in the 2016 final rule, that
focused on achieving the statutorily mandated outcome of ensuring that
each resident is provided care that allows the resident to maintain or
attain their highest practicable physical, mental, and psychosocial
well-being. The facility assessment requirement was central to the
revised 2016 LTC facility participation requirements, and was intended
to be used by the facility for multiple purposes, including, but not
limited to, determining adequate staffing and other resources,
establishing a Quality Assurance and Performance Improvement (QAPI)
program, and conducting emergency preparedness planning.
Our expectation was that the application and development of the
facility assessment requirement and competence-based staffing decisions
would involve every service provided by a LTC facility and apply to all
staff, including the interdisciplinary team. For example, a facility
that provides dementia care would need to ensure that it has a
sufficient number of staff with the necessary skill sets and
competencies to care for individuals living with dementia. In addition,
CMS intended for facilities to use the facility assessment as a
resource and planning tool for both short-term (day-to-day) and long-
term (strategic) purposes.
As part of the FY2023 SNF PPS proposed rule, we sought public input
on how the facility assessment requirement should impact the minimum
staffing requirement (87 FR 22720). Many commenters suggested that the
facility assessment requirement should be used to complement the
minimum staffing requirement and to determine any additional nursing
staff that the facility needs, based on the acuity and needs of its
resident population. Other commenters shared concerns that the Federal
regulations established in 2016 requiring nursing homes to conduct a
facility self-assessment have never been adequately enforced or
surveyed.
As discussed earlier in this proposed rule, the recent 2022 Nursing
Home Staffing Study \103\ included in-person interviews and surveys
with facility leadership, direct care staff, and residents and their
family members to better understand the relationship among nurse
staffing levels, staffing mix, and the safety and quality of resident
care. During interviews, staff respondents (RNs, LPNs, NAs) were asked
to identify the number of residents that they could provide with
quality and safe care and to recommend minimum staffing requirements.
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\103\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare
and Medicaid Services https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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Respondents consistently noted that resident acuity was more important
than the actual number of assigned residents in determining whether
they could provide quality and safe care based on their staffing
assignments. Some respondents suggested minimum staffing requirements
in terms of the number of residents per shift/unit, accounting for
acuity, that they could safely manage and reported that their usual
shift/unit is frequently short-staffed. Some respondents also reported
concerns about a potential minimum staffing requirement being set too
low, fearing that administrators will understaff shifts, or that the
minimum will become the maximum.
Furthermore, we share the concern that there may be facilities who
currently exceed the proposed minimum staffing level and could
potentially be perversely incentivized to lower their staffing levels
to the required minimum staffing levels, rather than continuing to
staff above that level to meet the unique care needs of their
residents. Therefore, we underscore that in addition to meeting the
proposed minimum staffing levels, the facility assessment must continue
to be used to determine the necessary resources and staff that the
facility requires to care for its residents, regardless of whether or
not the facility is staffed at or above the new minimum staffing
requirement. Furthermore, we emphasize that a LTC facility's staffing
decisions should be based on the specific needs of its resident
population and not motivated by cost-savings. Thus, while each LTC
facility must comply with the minimum nurse staffing requirements set
forth at Sec. 483.35(a), unless the facility qualifies for a hardship
exemption under Sec. 483.35(g), the facility must also provide
sufficient staff (RNs, licensed nurses, and NAs) to provide nursing
care to all residents in accordance with the residents' assessments and
individual care plans (Sec. 483.35--introductory statement). Lastly,
we note that this proposed rule is not intended to, and would not
preempt the applicability of any State or local law providing a higher
standard (in this case, a higher HPRD ratio or an RN
[[Page 61374]]
coverage requirement in excess of one RN on site 24-hours per day, 7
days a week) than would be required by these proposed rules. To the
extent Federal standards exceed State and local minimum staffing
standards, no Federal pre-emption is implicated because facilities
complying with Federal law would also be in compliance with State law.
We are not aware of any State or local law providing for a maximum
staffing level. However, we note that this proposed rule is intended to
and would preempt the applicability of any State or local law providing
for a maximum staffing level, to the extent that such a State or local
maximum staffing level would prohibit a Medicare and Medicaid certified
LTC facility from meeting the minimum HPRD ratios and RN coverage
levels proposed in this rule.
To ensure that facilities are utilizing the facility assessment as
intended, we are proposing to redesignate the existing requirements for
the facility assessment to its own standalone section from Sec.
483.70(e) to proposed Sec. 483.71. We note that we are also proposing
technical changes throughout the CFR to replace references to Sec.
483.70(e) with Sec. 483.71 based on this proposed change. Given the
importance of the facility assessment requirement and the multiple
program ways in which the assessment may be used to inform a facility's
decision-making and planning, we believe that the requirements should
be set out as a standalone section rather than in the Administration
section. In addition, while the responsibility to implement and utilize
the facility assessment to inform facility operations belongs to the
facility's administrator and governing body, we acknowledge that a
multitude of facility leadership and management contribute to the
development of the assessment given its importance and broad
applicability.
In addition to redesignating (this is, relocating or moving) the
existing requirements to a standalone section, we are also proposing
clarifications throughout the section to further specify what the
facility assessment must be used for. We propose to redesignate the
stem statement for current Sec. 483.70(e) to the stem statement for
proposed Sec. 483.71. Existing paragraphs Sec. 483.70(e)(1) through
(3) identify the key elements of the facility assessment and specify
the considerations that the assessment must account for, including the
facility's resident population, resources, and the facility and
community-based risk assessment which is required to complete as part
of the facility's emergency planning. This includes using their
assessment of resident needs to determine the competencies and skill
sets their staff needs to provide safe and quality care for the
residents. The LTC facility should also use the information from the
facility assessment to determine their training needs for its staff. We
propose to redesignate Sec. 483.70(e)(1) through (3) as proposed Sec.
483.71(a)(1) through (3), respectively. We note the discussion of the
proposed revisions follows the organization of the requirements as
presented in the new standalone section we are proposing at Sec.
483.71.
At new paragraph Sec. 483.71(a)(1)(ii), we propose to clarify that
facilities would have to address in the facility assessment details of
its resident population, including the care required by the resident
population, using evidence-based, data driven methods that consider the
types of diseases, conditions, physical and behavioral health issues,
cognitive disabilities, overall acuity, and other pertinent facts that
are present within that population, consistent with and informed by
individual resident assessments as required under existing Sec. 483.20
``Resident Assessment.''. Specifically, we propose to revise this
paragraph by specifying the ``use of evidence-based, data driven
methods'' and create a link to the requirements for the resident
assessment. Facilities are expected to update their facility assessment
as needed, no less than annually, using evidence-based, data-driven
methods, that consider the needs of their residents and the
competencies of their staff. For example, facilities need to be able to
describe residents' acuity levels in order to understand the care and
services required, and we would expect that they refer to data sources
such as the resident assessments; comprehensive care plans; MDS; RUG-IV
categories, if available; or, other resident acuity tools. Assessing
acuity levels and effectively using MDS and discharge planning are also
an important part of ensuring that an individual can return to the
community whenever possible in the least restrictive environment.
In addition, existing regulations at Sec. 483.40 require LTC
facilities to provide each resident with the necessary behavioral
health care and services for the resident to attain or maintain the
highest practicable physical, mental, and psychosocial well-being, in
accordance with his or her comprehensive assessment and plan of care.
Hence, we also propose to revise this paragraph to add ``behavioral
health issues'' to clarify that LTC facilities must consider their
residents' physical and behavioral health issues. We are also concerned
with issues of inaccurate MDS coding of residents with a diagnosis of
schizophrenia and are taking action to reduce the inappropriate use of
antipsychotics without clinical indication in nursing homes.\104\
Therefore, we believe these revisions are necessary to ensure that
facilities are providing residents with appropriate services and care
for behavioral health. At new Sec. 483.71(a)(1)(iii), we propose to
add ``and skill sets'' so the requirement reads, ``(iii) The staff
competencies and skill sets that are necessary to provide the level and
types of care needed for the resident population.'' At new Sec.
483.71(a)(3), we propose to add a cross-reference to the existing
requirements for facilities to conduct a facility and community-based
risk assessment as part of their emergency planning resources.
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\104\ https://www.cms.gov/files/document/qso-23-05-nh.pdf.
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At new Sec. 483.71(a)(4), we propose to require facilities to
include the input of facility staff, including but not limited to
categories such as nursing home leadership, management, direct care
staff and their representatives, and staff providing other services. A
comprehensive assessment of what resources are required for a LTC
facility to provide safe care for its resident population requires the
input from facility staff familiar with all of its essential services.
Nursing staff working in facilities can provide information to facility
management regarding their caseload and how many residents they believe
they can safely provide quality care to on a daily basis. Nursing staff
are also familiar with the unique needs of their resident population
and can speak to the staffing needs at both a shift and unit level.
In addition, direct care employee representation in the facility
assessment is critically important to securing an accurate analysis of
staffing needs required to ensure resident health and safety. Direct
care employees and their representatives are uniquely positioned to
assess and communicate what staffing competencies and levels, as well
as equipment and other resources are needed to provide appropriate
care. These individuals have a unique understanding of the resident
population's health needs because of their on-the-ground knowledge of
residents' care needs and facility operations. As examples, direct care
employees have distinct perspectives into what additional training is
needed to manage increased acuity in resident
[[Page 61375]]
needs; what ethnic, cultural, and religious factors are critical to the
provision of culturally competent resident care; and how health
information technology may be better leveraged to deliver consistent,
quality care according to resident preferences.
Input into the facility assessment from any authorized
representatives of direct care employees serves several important
functions. Such representatives may sometimes be better positioned to
directly communicate about facility conditions and the needs of the
resident population on behalf of direct care employees who may fear
retaliation from their employer. There may also be circumstances where
direct care employees are not fluent in English or not familiar with
translating observations into resource categories and want a trusted
representative to enable open and effective communication in the
facility assessment. Alongside direct care employees, their
representatives may also help ensure facility assessments are up-to-
date and used to inform facility staffing.
Representatives of direct care employees may take different forms.
One scenario of representation may involve union workplaces where
employees have designated a union representative, such as an employee
or third-party elected local union representative, business agent, or
safety and health specialist. Representation may also arise in
workplaces without collective bargaining agreements where at least one
employee or a subset of employees have designated a representative from
amongst themselves or a third-party worker advocacy group, community
organization, local safety organization, or labor union to serve as
their representative in a facility assessment. For example, employees
may choose to authorize a union safety and health specialist to help
compile staff observations regarding unmet training needs or
communicate safety concerns regarding outdated medical equipment, which
they may not otherwise feel comfortable sharing as part of their direct
reflections on resident needs.
These benefits of enabling the participation of direct employee
representatives are consistent with the demonstrated positive
association between union representation and resident well-being.
According to a recent study, resident mortality and worker infection
rates were lower in nursing homes with union representation compared to
those without; specifically, the study found unions were associated
with 10.8 percent lower resident COVID-19 mortality rates and 6.8
percent lower worker infection rates.\105\ We are soliciting public
comments on additional studies and data that demonstrate the benefits
of the participation of direct employee representatives in the facility
assessment process.
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\105\ Dean, A., McCallum, J. et al. Resident Mortality And
Worker Infection Rates From COVID-19 Lower In Union Than Nonunion US
Nursing Homes, 2020-21. April 20, 2022. https://doi.org/10.1377/hlthaff.2021.01687.
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Other staff, including but not limited to those in food and
nutrition, pharmacy, and facility services, could provide vital
information on essential services and resources required to care for
the resident population. If the LTC facility provides other services
including but not limited to physical therapy or dialysis, it should
include input from staff familiar with these services as well. A
comprehensive assessment of what resources are required for a LTC
facility to provide safe care for its resident population requires the
input from facility staff familiar with all of its essential services.
We encourage LTC facilities to include the input of not only those
personnel from the specifically mentioned areas in the proposed
requirement, but also of staff from all areas and their representatives
that provide essential services or resources for residents. We request
comments on the operational challenges or burdens of this provision as
well as how CMS can best provide oversight of this proposed
requirement.
We propose at new Sec. 483.71(b)(1) to require facilities to use
the facility assessment to inform staffing decisions to ensure
appropriate staff are available with the necessary competencies and
skill sets necessary to care for its residents' needs as identified
through resident assessments and plans of care as required in Sec.
483.35(a)(3). This requirement will help to address some outstanding
concerns due to limitations in the PBJ System. While PBJ System data
has allowed for additional insight into the staffing levels of
facilities, there remain some limitations as to what that data can tell
us regarding how facilities are staffed. For example, PBJ System data
cannot give us insight into how different resident units are staffed.
There are some units in LTC facilities that require higher levels of
care based upon the resident acuity, such as memory care or ventilator
units. PBJ System data also does not provide information regarding how
different shifts are staffed within a LTC facility. The Government
Accountability Office, HHS, and OIG have raised concerns related to
inadequate staffing in LTC facilities on the weekends and at
night.106 107 The new requirement at Sec. 483.71(b)(1) will
help address that.
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\106\ Additional Reporting on Key Staffing Information and
Stronger Payment Incentives Needed for Skilled Nursing Facilities,
July 2021, GAO-21-408, https://www.gao.gov/assets/gao-21-408.pdf.
\107\ CMS Use of Data on Nursing Home Staffing: Progress and
Opportunities To Do More, March 2021, OEI-04-18-00451, https://oig.hhs.gov/oei/reports/OEI-04-18-00451.asp.
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In addition, we propose at new Sec. 483.71(b)(2) to require
facilities to use the facility assessment to assess the specific needs
for each resident unit in the facility, and to adjust as necessary
based on any significant changes in the resident population. Facilities
would also be required, at new Sec. 483.71(b)(3), to consider the
specific staffing needs for each shift, such as day, evening, night,
weekends, and to adjust as necessary based on any significant changes
to the resident population.
We propose at new Sec. 483.71(b)(4) that LTC facilities would have
to use their facility assessment to develop and maintain a staffing
plan to maximize recruitment and retention of nursing staff. This
staffing plan requirement is consistent with the aims President Biden
articulated in the April 2023 ``Executive Order on Increasing Access to
High-Quality Care and Supporting Caregivers''.\108\ That E.O. directs
the Secretary of HHS to consider actions to encourage LTC facilities to
reduce nursing staff turnover.\109\ This action may help improve
quality in LTC facilities since literature evidence suggests that
decreases in quality are associated with even a low-to-moderate
increase in RN turnover.\110\ This E.O. also directs the Secretary to
consider additional actions to improve retention of nursing staff by
advancing efforts to measure and adjust payments based on staff
turnover.\111\ For LTC facilities to not only comply with both the
current and proposed staffing requirements in this rule but also to
achieve the E.O.'s goal of increasing access to higher quality care for
LTC facility residents and supporting LTC facility nursing staff, it
would be necessary for these facilities to be able to recruit and
retain
[[Page 61376]]
sufficient numbers of nursing staff with the appropriate education,
training, competencies, and skill sets. To meet these objectives, we
believe LTC facilities would need a staffing plan to address staff
turnover and consider ways to support staff retention. We have not
specified how the staffing plan should be developed or what it must
contain because we believe that LTC facilities should have flexibility
in developing these plans. However, we encourage LTC facilities to
assess the compensation package the facility offers its direct care
staff as part of developing the staffing plan. We request comments on
the operational challenges or burdens of this provision, as well as how
CMS can best provide oversight of this proposed requirement.
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\108\ Executive Order on Increasing Access to High-Quality Care
and Supporting Caregivers. White House. Accessed at https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/18/executive-order-on-increasing-access-to-high-quality-care-and-supporting-caregivers/. Published on April 18, 2023. Accessed on
April 19, 2023.
\109\ FN #107, Section 2(b)(ii).
\110\ Castle, Nicholas G, and John Engberg. ``Staff turnover and
quality of care in nursing homes.'' Medical care vol. 43,6 (2005):
616-26. doi:10.1097/01.mlr.0000163661.67170.b9.
\111\ FN #107, Section 2(b)(ii).
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We are aware that the COVID-19 PHE has had an impact on the
availability of nursing staff in many States, with more facilities
needing to use temporary staffing agencies to fill positions, and we
want to ensure that facilities have a plan in place should staffing
shortages impact their ability to safely provide care to their
residents. At proposed Sec. 483.71(b)(5), we are proposing to require
facilities to use the facility assessment to inform contingency
planning for events that do not require the activation of the
facility's emergency plan but do have the potential to impact resident
care. For example, facilities should have a contingency plan in place
in the event that there is unavailability of direct care nursing staff
or other resources needed for resident care.
In summary, we note that the facility assessment works in
conjunction with the minimum nursing staff requirements proposed in
Sec. 483.35. While we propose to require all LTC facilities (subject
to exemptions) to comply with the minimum nursing staffing requirements
as set forth at Sec. 483.35(a), those minimum standards are only the
beginning. By conducting the facility assessment, the facility will be
able to determine what is sufficient staffing, as required by Sec.
483.35(a), for its resident population. The facility assessment will
determine not only the sufficient number of staff, but also what
competencies and skill sets that staff needs to provide safe care for
the resident population. Thus, we emphasize that all LTC facilities
must comply with the nursing staff minimums; however, these minimums
alone are not targets nor a safe harbor, and facilities may need to
staff above the minimum requirements proposed in this rule to satisfy
the requirement for sufficient staffing. Conducting the facility
assessment will determine not only the number of staff but also the
competencies and skill sets that staff must possess to provide safe and
high-quality care for the facility's resident population as identified
through resident assessments and plans of care as required in existing
Sec. 483.35(a)(3).
3. Hardship Exemption From the Minimum Hours per Resident Day
Requirements for RNs and NAs
As noted earlier, we are proposing a hardship exemption to the HPRD
requirements portion of the minimum staffing standards. The exemption
would apply only to the RN and/or NA HPRD requirements and is separate
and distinct from existing the existing statutory waiver process that
addresses, in particular, overarching RN staffing requirements. While
we acknowledge the potential for overlap between the exemption and the
waiver (that is, a 24/7 RN may meet the HPRD requirement), each of the
minimum staffing requirements independently supports resident health
and safety. Therefore, meeting the 24/7 requirement does not also count
as meeting the 0.55 RN HPRD and 2.45 NA HPRD and vice versa.
Specifically, as discussed elsewhere in this rule, the presence of an
RN in a LTC facility on a 24-hour basis improves overall quality of
care. Similarly, but separately, a minimum number of RN and NA hours
per resident per day improve overall quality of care. Both
independently and collaboratively, these requirements support meeting
statutory mandates to provide services to attain or maintain the
highest practicable physical, mental, and psychosocial well-being of
each resident, in accordance with a written plan of care. Both the
exemptions and the waiver are discussed in more detail below.
We fully expect that LTC facilities will be able to comply with our
proposed standards for nursing staff. However, we recognize that some
interested parties have expressed that, in some instances, external
circumstances may prevent a LTC facility from meeting our proposed
minimum staffing requirements, despite the LTC facility's best efforts.
We note, for example, that the COVID-19 PHE exacerbated workforce
unavailability issues for some LTC facilities. Some LTC facilities may
be challenged in hiring and retaining nursing staff such as registered
nurses and certified nursing assistants due to local workforce
unavailability, while others may need to improve pay and job quality in
order to attract and retain staff, given competition from higher-paying
positions or alternate career paths. A 2020 Assistant Secretary for
Planning and Evaluation (ASPE) Report found that the COVID-19 PHE
contributed to staffing shortages and health care worker attrition,
pushing nursing homes to create and implement new recruitment
infrastructures, increase wages, and augment benefits to retain
staff.\112\ As noted in the FY 2023 SNF PPS RFI comments and by
interested parties during the CMS hosted listening sessions previously
discussed, there is concern from LTC trade associations about whether
there is adequate staffing available to meet resident needs and about
the feasibility of increasing staffing over a short timeframe given
workforce and cost considerations. LTC facility staff interviewees who
were part of the qualitative portion of the 2022 Nursing Home Staffing
Study \113\ also shared concerns about unintended consequences of
requiring minimum staffing levels, with fears that some nursing homes
could be forced to close if they cannot come into compliance with the
minimum requirements.
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\112\ COVID-19 Intensifies Nursing Home Workforce Challenge,
Danny-Brown et al., 2020.
\113\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare
and Medicaid Services https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
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According to the Bureau of Labor Statistics (BLS), in March 2020,
there were 3,372,000 health care staff working in nursing homes and
other LTC facilities. This dropped to a low of 2,961,200 in January
2022, a loss of 410,000 staff. This is rebounding, as of June 2023
there are roughly 235,900 fewer health care staff working in nursing
homes and other LTC facilities compared to March of 2020.\114\ The
decline in staff coincided with decreasing LTC facility census
beginning in March 2020, as noted below. A January 2023 AHCA/NCAL
Report analyzing BLS data notes that other health care sectors
(Physician Offices, Outpatient settings, Home Health, and Hospitals)
rebounded more quickly than the nursing home sector. This difference in
return to employment may have been driven by the comparatively low pay
and difficult working conditions for nursing home workers.\115\
Commenters to the FY 2023
[[Page 61377]]
SNF PPS RFI noted concerns such as, ``We are losing many long-term
employees to jobs with better salaries and many of these jobs are not
in healthcare. New hires are demanding a higher starting salary as well
as large sign on bonuses.'' Several labor and consumer advocacy groups
noted competitive wages as a driving factor in staff retention/
recruitment. Based on our estimations detailed in section VI.
(Regulatory Impact Analysis), of this rule, we expect that a total of
12,639 additional RNs and 76,376 additional NAs will be needed to meet
our proposed HPRD requirements, before accounting for any exemptions.
In particular, we recognize that lower staffed nursing homes are more
likely to be for-profit, larger, rural, and have a higher share of
Medicaid residents.\116\ Some recent developments, however, should ease
staffing difficulties at LTC facilities. According to BLS data, as of
January 2022, the number of LTC facility staff has begun to rebound.
The number of health care staff working in nursing homes and other LTC
facilities as of June 2023 is 3,136,100, with preliminary data
indicating continued rebound.\117\ Furthermore, beginning in March
2020, facility census declined. By the end of September 2020, nursing
home census had declined by an average of nine residents per nursing
home, going from an average of 86 residents in January 2020 to 77
residents in September 2020.\118\
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\114\ Bureau of Labor Statistics. https://data.bls.gov/timeseries/CES6562300001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true. Accessed 08/09/2023.https://data.bls.gov/timeseries/CES6562300001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true. Accessed 08/09/2023.
\115\ https://www.ahcancal.org/News-and-Communications/Fact-Sheets/FactSheets/LTC-Jobs-Report-Jan2023.pdf.
\116\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Report prepared for the Centers for Medicare
and Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
\117\ Employment, Hours, and Earnings from the Current
Employment Statistics survey (National) https://data.bls.gov/timeseries/CES6562300001?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true Accessed 08/09/2023.
\118\ Nursing Home Nurse Staff Hours Declined Notably during the
COVID-19 Pandemic, with CNAs Experiencing the Largest Decreases
Issue Brief (hhs.gov), https://aspe.hhs.gov/sites/default/files/documents/95b3a0f6294c7bb021cfbdc245cd9820/nh-nurse-staff-hours-brief.pdf.
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We recognize that LTC facility workers--disproportionately women of
color--are among the lowest-paid in the country and often have to rely
on public benefits despite working complex and demanding jobs. In
addition, poor working conditions in LTC facilities have been found to
influence the quality of care provided to residents.\119\ Investments
in the care workforce, including competitive wages, are foundational to
helping to retain LTC facility workers and improving health and
educational outcomes. Unfortunately, lack of transparency regarding
nursing home finances, operations, and ownership impedes the ability to
fully understand how current resources are allocated.\120\ This
obscures evaluation of the industry's ability to absorb the costs of
increased staffing and improved working conditions. It is the policy of
the Biden-Harris Administration to ensure that the LTC workforce is
supported, valued, and well-paid. Indeed, as previously noted, on April
18, 2023, President Biden issued an E.O. on Increasing Access to High
Quality Care and Supporting Caregivers. Section 2 of that E.O.
addresses Increasing Compensation and Improving Job Quality for Family
Caregivers, Early Educators, and Long-Term Care Workers.\121\
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\119\ Perruchoud, Elodie et al. ``The Impact of Nursing Staffs'
Working Conditions on the Quality of Care Received by Older Adults
in Long-Term Residential Care Facilities: A Systematic Review of
Interventional and Observational Studies.'' Geriatrics (Basel,
Switzerland) vol. 7,1 6. 28 Dec. 2021, doi:10.3390/
geriatrics7010006.
\120\ National Academies of Sciences, Engineering, and Medicine;
Health and Medicine Division; Board on Health Care Services;
Committee on the Quality of Care in Nursing Homes. The National
Imperative to Improve Nursing Home Quality: Honoring Our Commitment
to Residents, Families, and Staff. Washington (DC): National
Academies Press (US); 2022 Apr 6. Summary. Available from: https://www.ncbi.nlm.nih.gov/books/NBK584660/.
\121\ https://www.whitehouse.gov/briefing-room/presidential-actions/2023/04/18/executive-order-on-increasing-access-to-high-quality-care-and-supporting-caregivers/.
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To improve working conditions and job quality in federally-funded
LTC facility programs, we are encouraging providers to establish
incentives to recruit and retain LTC facility workers, help prevent
burnout, make it as easy as possible for LTC facility workers to access
behavioral health services, and improve the care that individuals
receive. The considerations described above, ranging from workforce
issues exacerbated by the COVID-19 pandemic, to persistently low wages
and benefits, and poor working conditions for the direct care
workforce, have informed our approach to the proposed minimum staffing
standards, including the 0.55 RN and 2.45 NA HPRD requirements and the
proposed exemptions.
The goal of the proposed minimum nursing staffing requirement is to
ensure that residents receive safe and high-quality care. It is our
intention to balance this goal with the need to ensure access to care,
which is an important health and safety consideration. Therefore, CMS
is proposing a hardship exemption to the minimum staffing standards,
either the 0.55 RN or the 2.45 NA HPRD requirements, or both, proposed
at Sec. 483.35(a)(1)(i) and (ii). These proposed exemptions will help
to address the current workforce constraints in certain jurisdictions
and other potential barriers that some LTC facilities may be
experiencing in the wake of the COVID-19 PHE, and to ensure that our
proposals do not unintentionally create access issues. Specifically, we
propose to re-designate the existing requirements for nurse staffing
information at existing Sec. 483.35(g) to a new paragraph (h). We
propose at new Sec. 483.35(g) to allow LTC facilities with a
verifiable hardship that precludes the LTC facility from achieving or
maintaining compliance to be exempt from one or both of the proposed
requirements at Sec. 483.35(a)(1)(i) and (a)(1)(ii). Given the complex
health needs of LTC residents, to protect resident health and safety,
we believe that it is important for exempted LTC facilities to maintain
compliance with the 24/7 RN requirement as there are longstanding
concerns related to low staffing levels in LTC facilities on weekends
and evenings and ongoing RN presence is needed to provide care and
monitor resident health. That requirement may be waived only through
the waiver process implemented at Sec. 483.35(f) and described below.
In developing our proposed minimum standards for nurse staffing, we
recognized that sections 1819(b)(4)(C)(ii) and 1919(b)(4)(C)(ii) of the
Act established a waiver process for RN/licensed nurse staffing in LTC
facilities. We therefore considered whether or not a similar mechanism
would be appropriate for minimum HPRD requirements. We determined, in
the same spirit as the existing waiver process, to propose exemptions
intended to address underlying workforce unavailability concerns,
especially in rural and other underserved areas, while balancing the
need for efforts by LTC facilities to recruit staff and improve quality
of care. While allowing for these exemptions, we note that each LTC
facility must still comply with its statutory and regulatory
obligations to have sufficient staff to assure resident safety, and to
attain or maintain the highest practicable physical, mental, and
psychosocial well-being of each resident.
These exemptions, while serving a similar purpose, differ from, but
are not inconsistent with the waiver for RN and licensed nurse staffing
under sections 1819(b)(4)(C)(ii) and 1919(b)(4)(C)(ii) of the Act. The
waiver provisions are implemented at Sec. 483.35 (e) and (f). The
proposed exemptions will be located at Sec. 483.35(g). We emphasize
that the exemptions apply only to the
[[Page 61378]]
requirements at Sec. 483.35(a)(1)(i) and (ii) for LTC facilities to
meet minimum HPRD staffing requirements for RNs and NAs, while the
statutory waiver applies specifically to either RN or licensed nurse
services more broadly. Both take into consideration ensuring staff
sufficiency to achieve resident safety and well-being, but will be
different processes.
The proposed exemption process would be implemented with as little
administrative burden on LTC facilities as possible, while also
limiting opportunities for inappropriate granting of exemptions; it
would also ensure that we are aware of the staffing status of the LTC
facility. To obtain an exemption, a LTC facility must demonstrate that
it has been unable to recruit appropriate personnel. In addition, the
facility remains obligated to ensure the health and safety of facility
residents. Therefore, prior to being granted an exemption, the LTC
facility must be surveyed to assess the health and safety of the
residents. If a LTC facility is found noncompliant with the minimum
staffing requirements and does not meet the exclusionary criteria
discussed below, the LTC facility's documentation of a good faith
effort to hire and retain staff and the LTC facility's documentation of
financial commitment must be submitted to CMS. If a LTC facility meets
the exclusionary criteria, it will not be considered for an exemption.
Such criteria include that the LTC facility must not have failed to
submit PBJ System data in accordance with re-designated Sec.
483.70(p), must not be an SFF facility, and must not have been cited by
us as having ``widespread'' or ``a pattern of insufficient staffing
with resultant resident harm'' or at an ``Immediate Jeopardy to
resident health and safety'' level of severity with respect to
understaffing within the 12 months preceding the survey during which
the facility's non-compliance is identified. We note that the
exemptions do not have a separate requirement for the availability of
an RN or physician for immediate response, as the exemptions do not
relieve the LTC facility of its obligation to have 24/7 RN presence. If
a LTC facility were to obtain a waiver of RN/licensed nurse staffing
through the existing waiver process, the LTC facility would provide
assurances related to having necessary staff availability, among other
assurances, as part of that process to obtain such a waiver. We intend
to make publicly available information on LTC facilities that have an
exemption to the minimum staffing requirements, to assist residents and
families in choosing a LTC facility.
To qualify for a hardship exemption, we are proposing that LTC
facilities must meet all of the criteria specified at Sec.
483.35(g)(1) through (4). Those criteria include:
1. Location (proposed Sec. 483.35(g)(1)): To meet the criterion
for location, a LTC facility must either be located:
a. In an area where the supply of the applicable health care staff
(either RN, or NA, or both) is not sufficient to meet geographic area
needs as evidenced by either a medium (that is, 20 percent below the
national average) or low (that is, 40 percent below national average)
provider-population ratio for nursing workforce (Sec.
483.35(g)(1)(i)), as calculated by us, currently by using Bureau of
Labor Statistics and Census Bureau data, or
b. Twenty miles or more from the next closest LTC facility, as
determined by CMS (Sec. 483.35(g)(1)(ii)).
2. Demonstrated Good Faith Effort to Hire and Retain Staff
(proposed Sec. 483.35(g)(2)): To meet the criterion for demonstrated
good faith effort to hire and retain nursing staff, a LTC facility must
be surveyed and cited as noncompliant with the minimum staffing
requirements, while not meeting the exclusionary criteria in section 4.
To meet this good faith effort criterion, a LTC facility must have
developed and implemented a recruitment and retention plan, as required
at proposed Sec. 483.71(b)(5), and must demonstrate that it has been
unable, despite diligent efforts including offering prevailing wages,
to recruit and retain appropriate nursing staff including NAs. The LTC
facility must document recruitment efforts. Such documentation is
expected to include job listings in commonly used recruitment forums
found online, at American Job Centers (coordinated by the U.S.
Department of Labor's Employment and Training Administration), and
other forums as appropriate (Sec. 483.35(g)(2)(i)), job vacancies
including the number and duration of vacancies, and offers made (Sec.
483.35(g)(2)(ii)). The documentation must show that offers are made at
prevailing wages or better, as reflected by looking at data on the
average wages in the Metropolitan Statistical Area in which the LTC
facility is located, and vacancies by industry as reported by the
Bureau of Labor Statistics or by the State's Department of Labor (Sec.
483.35(g)(2)(iii)). This look-back would occur for the time period
following when the vacancies occurred. Generally, we would expect that
to be a 4- to 6-month period, but could encompass the full year, based
on circumstances around the vacancies. Finally, the documentation must
include the LTC facility's staffing plan in accordance with proposed
Sec. 483.71(b)(4).
3. Demonstrated Financial Commitment (proposed Sec. 483.35(g)(3)):
To meet the criterion for financial commitment, a LTC facility must be
surveyed and cited as noncompliant with the minimum staffing
requirements, while not meeting the exclusionary criteria in section 4.
Once a finding of noncompliance has occurred, the LTC facility must
demonstrate through documentation the financial resources that the LTC
facility expends annually on nurse staffing relative to revenue.
4. Exclusions. LTC Facilities must not have failed to submit PBJ
System data in accordance with re-designated Sec. 483.70(p), must not
have been determined by us to be an SFF facility, and must not have
been cited by us as having ``widespread insufficient staffing with
resultant resident harm'' or ``a pattern of insufficient staffing with
resultant resident harm'', or at an ``Immediate Jeopardy to resident
health and safety'' level of severity with respect to understaffing
within the 12 months preceding the survey during which the facility's
non-compliance is identified.
With respect to location, we are proposing that LTC facilities meet
one of two distinct sub criterion to qualify for an exemption. If an
LTC meets one of those criteria, they would then be evaluated for
fulfilling the remaining criteria listed above.
The first sub criterion applies to LTC facilities that are located
in a geographical area that has a shortage of RNs and/or NAs. We define
the geographical area as the metropolitan statistical area (MSA) or
non-metropolitan statistical area (non-MSA) where the LTC facility is
located using data from the U.S. Bureau of Labor Statistics (available
at https://www.bls.gov/oes/current/msa_def.htm). We determine that
there is a ``shortage'' when the MSA or non-MSA has a RN and/or NA to
population ratio that is 20 percent below the national average. We
provide the definitions of both medium and low provider to population
ratio to facilitate comment on the appropriate level to use.
To calculate whether a LTC facility is in an area with a shortage
of RNs or NAs, we first use the Care Compare data to identify the State
and county where each LTC facility is located. We then combine these
data with information from the U.S. Bureau of Labor Statistics
(available at https://www.bls.gov/oes/
[[Page 61379]]
current/msa_def.htm) on the counties in each MSA and non-MSA to
identify the MSA or non-MSA where each LTC facility is located. Next,
we identify the total number of RNs and NAs in each MSA and non-MSA
using the Bureau of Labor Statistic's Occupational Employment and Wage
Statistics Query System (available at https://data.bls.gov/oes/#/home).
Afterwards, we calculate the population for each MSA or non-MSA using
population estimates from the United States Census Bureau by summing
the population for all counties in the MSA or non-MSA (available at
https://www.census.gov/data/tables/time-series/demo/popest/2020s-counties-total.html#v2022).
Finally, we calculate whether the LTC facility is located in an MSA
or a non-MSA with a medium or low provider-to-population ratio by
comparing the area's provider-to-population ratio to the average
provider-to-population ratio for the United States.
The second location sub criterion is distance to the next closest
LTC facility. We are proposing this alternative distance criterion to
address potential workforce unavailability within an MSA or non-MSA
that overall has adequate workforce availability, but may have pockets
within it that are experiencing shortages. We note that MSA and non
MSA's may be quite large--for example, one MSA extends from Arlington,
VA to West Virginia. Particularly for NAs, the availability, or lack
thereof, of public transportation in some areas, and the costs and
availability of private transportation can make long work commutes
unfeasible. We also recognize there may be access to care concerns
should a LTC facility limit admissions or close as a result of staff
unavailability within a particular community. In addition to access to
care and workforce availability issues, we also recognize the burden on
residents and resident families when loved ones have to be located in
LTC facilities (or relocated to LTC facilities) at a distance that
makes family visitation and participation in care difficult. According
to a 2021 study, ``travel time has a substantively and statistically
significant negative association on visit probability for all age
groups''.\122\
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\122\ Weimer, David L., Ph.D., Saliba, Debra, MD, MPH, Ladd,
Heather, MS, Mukamel, Dana B., Ph.D. ``Who Visits Relatives in
Nursing Homes? Predictors of at Least Weekly Visiting'' The Journal
of Post-Acute and Long-Term Care Medicine. VOLUME 23, ISSUE 7, JULY
2022. Accessed 6/27/2023 https://www.jamda.com/article/S1525-8610(21)00831-8/fulltext#%20.
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We considered mileage increments from 15 to 50 miles for this
alternative criterion. After considering the number of LTC facilities
impacted, the overlap of the provider-population ratio, and
consideration of travel for both staff and visitors, we determined that
20 miles best addressed these factors compared to a 15-mile increment.
As noted below, we welcome comment on this mileage and the factors we
should consider in determining an appropriate mileage criterion. We
note that all certified nursing homes are geocoded into CMS' online
survey and enforcement system. This allows us to easily and accurately
calculate the exact distance of LTC facilities to one another. The
following chart provides our analyses of distances.
Table 3--LTC Facilities at Various Distances From Next Closest LTC
Facility
------------------------------------------------------------------------
% of LTC
# of LTC Facilities without
Distance Facilities without any other LTC
any other LTC facility nearby
facility nearby (percent)
------------------------------------------------------------------------
Within 15 miles................. 852 5.6
Within 20 miles................. 422 2.8
Within 25 miles................. 223 1.5
Within 30 miles................. 155 1.0
Within 35 miles................. 106 0.7
Within 50 miles................. 40 0.3
------------------------------------------------------------------------
Note: The analysis includes 15,089 LTC facilities (1) active as February
2023 and (2) with non-missing values in latitude or longitude.
There are three exclusions from the exemption criteria. First, LTC
facilities must be in compliance with requirements for the submission
of PBJ System data. This data is critical to our evaluation of LTC
facility staffing. Next, sections 1819(f)(8) and 1919(f)(10) of the Act
require us to maintain a SFF program for enforcement of participation
requirements for LTC facilities that have been identified as having
substantially failed to meet applicable health and safety requirements.
We are statutorily-required to survey these LTC facilities once every 6
months. LTC Facilities designated as SFFs have a history of serious
quality issues and are included in this program to stimulate
improvements in their quality of care. A LTC facility that is
designated as a SFF is excluded from receiving an exemption from the
minimum HPRD staffing requirements.
Finally, most LTC facilities have some deficiencies, but some LTC
facilities have significantly more problems than others (about twice
the average number of deficiencies), or have more serious problems than
most other LTC facilities (including harm or injury experienced by
residents, and a pattern of serious problems that have persisted over a
long period of time). An OIG report on adverse events in nursing homes
noted that 59 percent of adverse events and temporary harm events were
clearly or likely preventable, and attributed much of the preventable
harm to substandard treatment, inadequate resident monitoring, and
failure or delay of necessary care.\123\ Therefore, while we are
acknowledging the potential for LTC facility constraints that may
create access to care issues and providing for exemptions as it relates
to the minimum nursing staffing requirement, we must ensure that LTC
facilities are providing safe and acceptable care despite any
exemption. Therefore, we propose at Sec. 483.35(g)(4)(ii) that LTC
facilities that have been cited for ``widespread insufficient staffing
with resultant resident harm'' or ``a pattern of insufficient staffing
with resultant resident harm'' or are cited at the immediate jeopardy
level of severity with respect to insufficient staffing within the 12
months preceding the survey during which the facility's non-compliance
is identified would also not meet the criteria for an exemption from
the requirements at Sec. 483.35(a)(1)(i) and
[[Page 61380]]
(ii). Due to the serious quality issues with these LTC facilities and
the intent of the proposed requirement, we believe it is necessary to
exclude these LTC facilities from the exemption to maintain the health
and safety of residents residing in these LTC facilities.
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\123\ Adverse Events in Skilled Nursing Facilities: National
Incidence Among Medicare Beneficiaries, Department of Health and
Human Services, Office of Inspector General.
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We emphasize again that the exemptions apply only to the
requirements at Sec. 483.35(a)(1)(i) and (ii) for LTC facilities to
meet minimum HPRD staffing requirements for RNs and NAs. As such, LTC
facilities that qualify for an exemption would still be required to
comply with the base requirement at Sec. 483.35(a)(1) that LTC
facilities provide services by a sufficient number of [nursing] staff
on a 24-hour basis to provide nursing care to all residents in
accordance with resident care plans, as well as the proposed
requirement at Sec. 483.35(b)(1), for a LTC facility to provide onsite
RN coverage 24 hours a day, 7 days a week; the proposed requirements at
Sec. 483.71, to conduct a facility assessment; as well as the
multitude of additional minimum health and safety standards for LTC
facilities in 42 CFR part 483, subpart B. They are expected to make the
effort to hire as many RNs and NAs as necessary to meet resident needs.
We note that LTC facilities remain able to apply for a waiver of the RN
and licensed nurse staffing requirements, as required by statute and as
applicable to the LTC facility. The requirements for such a waiver are
set forth in Sec. 483.35 (e) and (f).
Finally, we propose at Sec. 483.35(g)(5) to specify that
determinations of eligibility for an exemption are based on paragraphs
(g)(1) through (3) and that facilities must provide supporting
documentation when requested. At Sec. 483.35(g)(5), we propose that
hardship exemptions would be granted for a period of 1-year and could
be extended in increments of one additional year, after the initial 1-
year period, if the LTC facility continued to meet the exemption
criteria without experiencing additional issues that would prevent them
from eligibility.
It is our expectation that LTC facilities that qualify for an
exemption would make ongoing efforts to increase their capabilities to
achieve compliance with the minimum nurse staffing requirement.
Likewise, we expect that additional CMS programs, such as the SNF VBP
quality measures, will also incentivize facilities to improve staffing
at higher levels to both ensure their ability to address resident needs
day to day and also to capitalize on incentives that are at their
disposal for quality improvements. We solicit comment on these
opportunities for hardship exemptions for facilities. We welcome all
feedback but are particularly interested in the following:
What are additional data sources that CMS can use to
verify LTC facility hardships based on location or workforce
unavailability and shortages or grant hardship exemptions? For example,
the review of health professional shortage areas (HPSAs). Which data
source or criterion, or combination of data sources or criteria, could
accurately indicate hardship while minimizing burden to facilities?
Is 20 miles the right distance from the next closest LTC
facility to warrant a hardship exemption? What distance from the next
closest LTC facility results in a hardship for resident families?
Are there other criteria CMS should consider for a
facility to demonstrate good faith effort to hire and retain nursing
staff. Should CMS use BLS's median OES data to determine prevailing
wage?
Are there additional approaches to mitigating access to
care concerns that CMS should consider without allowing for exemptions
to the minimum nurse staffing requirement?
Are there additional exclusions to the proposed exemptions
that CMS should consider to protect resident health and safety? For
example, should we exclude candidates for the SFF program from
receiving an exemption?
Is 12 months the right look-back time frame for
exclusions? If not, what is the best time frame? Should it be 15
months? Should it be to and including the last recertification survey?
Are there additional hardships that CMS should consider?
If so, how will such considerations support quality care and protect
resident health and safety?
Should CMS provide an exemption for facilities based on
financial difficulty/constraints? If so, what would be an appropriate
judgment of a LTC facility's financial status and/or financial effort?
Considering the Medicaid transparency proposal discussed in this
proposed rule, should CMS identify minimum spending thresholds for
direct care staff that facilities must meet before being considered for
an exemption? Is there a specific spending to revenue threshold that
would be appropriate? What type of data and/or data sources can be used
to maximize transparency and provide an objective determination?
Are there additional steps that CMS can take to increase
transparency and address staffing shortages? For example, this
regulation discusses a proposal to require States to report to CMS on
the percentage of payments for Medicaid-covered nursing facility
services that are spent on direct care workers and support staff. Are
there additional efforts that CMS and facilities can take to promote
transparency and accountability related to funding for and supporting
staffing?
4. Implementation Timeframe
As discussed, we are proposing a minimum nurse staffing requirement
for LTC facilities of 0.55 and 2.45 HPRD by RNs and NAs, respectively.
We also propose revisions to the existing RN staffing to require an RN
on site 24 hours a day, 7 days a week to provide nursing care to all
residents in accordance with resident care plans; and propose revisions
to the facility assessment requirement. The adoption of these
requirements would improve the safety and quality of care of residents
and provide direct care workers with the support needed to provide
high-quality care.
We are proposing to implement these proposed requirements in three
phases, to avoid any unintended consequences or unanticipated risks to
resident care when a facility is developing new policies and procedures
necessary to comply with these requirements.
We acknowledge that these proposed requirements would require
approximately 79 percent of LTC facilities to increase their staff
levels to meet either the RN onsite 24 hours a day, 7 days a week
requirement or the minimum RN and NA HPRD requirements to ensure full
compliance with the new proposals discussed in the rule.\124\ In
addition, we anticipate that additional time would be needed to develop
revised interpretive guidance and survey processes, conduct surveyor
training on the changes, and implement the software changes in the
Long-Term Care Survey Process system.
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\124\ Calculations use the October 2021 Care Compare data set
that provides each nursing home's average daily resident census and
HPRD for each nurse type (that is, RNs, LPNs/LVNs, NAs) using the
PBJ System data for 2021 Q2.
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For facilities located in urban areas, we propose that
implementation of the final requirements be achieved in three phases,
over a 3-year period. Specifically, we propose that--
Phase 1 would require facilities to comply with the
Facility assessment requirements (Sec. 483.71) 60-days after the
publication date of the final rule.
Phase 2 would require facilities to comply with the
requirement for a RN onsite 24 hours a day, 7 days a week (Sec.
483.35(b)(1)) 2 years after the publication date of the final rule.
Phase 3 would require facilities to comply with the
minimum staffing
[[Page 61381]]
requirement of 0.55 and 2.45 HPRD for RNs and NAs respectively (Sec.
483.35(a)(1)(i) and Sec. 483.35(a)(1)(ii)) 3 years after the
publication date of the final rule.
Given that there are fewer rural LTC facilities and a higher
percentage of rural LTC facilities have greater distances between
neighboring facilities, if a facility was not able to comply with the
staffing requirement, it can have a more pronounced impact on access of
care. Therefore, we expect that facilities in rural areas will require
more time to comply with these requirements, compared to facilities in
urban areas.
For facilities located in rural areas, we propose the
implementation of the final requirements be achieved in three phases,
over a 5-year period. Specifically, we propose that--
Phase 1 would require facilities to comply with the
Facility assessment requirements (Sec. 483.71) 60-days after the
publication date of the final rule.
Phase 2 would require facilities to comply with the
requirement for a RN onsite 24 hours a day, 7 days a week (Sec.
483.35(b)(1)) 3 years after the publication date of the final rule.
Phase 3 would require facilities to comply with the
minimum staffing requirement of 0.55 and 2.45 HPRD for RNs and NAs
respectively (Sec. 483.35(a)(1)(i) and (ii)) 5 years after the
publication date of the final rule.
We note that the final regulations would be effective 60 days
following the publication of the final rule in the Federal Register.
The implementation date for the specific requirements are listed in
detail in Tables 4 and 5.
Table 4--Implementation Timeframes for Facilities in Urban Areas
------------------------------------------------------------------------
Regulatory section(s) Implementation date
------------------------------------------------------------------------
Proposed Sec. 483.71................. Phase 1: 60-days after the
publication date of the final
rule.
Sec. 483.35(b)(1).................... Phase 2: 2 years after the
publication date of the final
rule.
Sec. 483.35(a)(1)(i) and (ii)........ Phase 3: 3 years after the
publication date of the final
rule.
------------------------------------------------------------------------
Table 5--Implementation Timeframes for Facilities in Rural Areas
------------------------------------------------------------------------
Regulatory section(s) Implementation date
------------------------------------------------------------------------
Proposed Sec. 483.71................. Phase 1: 60-days after the
publication date of the final
rule.
Sec. 483.35(b)(1).................... Phase 2: 3 years after the
publication date of the final
rule.
Sec. 483.35(a)(1)(i) and (ii)........ Phase 3: 5 years after the
publication date of the final
rule.
------------------------------------------------------------------------
We are defining ``rural'' in accordance with the Census definition.
``Rural'' encompasses all population, housing, and territory not
included within an urban area.\125\ We solicit public comments on
whether a different definition should be used. Also, we seek feedback
on the following:
---------------------------------------------------------------------------
\125\ United States Census Bureau Urban and Rural https://www.census.gov/programs-surveys/geography/guidance/geo-areas/urban-rural.html.
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Is the proposed implementation timeframe appropriate? If
not, are there any alternative implementation approaches for these
requirements?
Do other underserved communities similarly require longer
implementation timeframes?
To what extent are facilities and State governments
planning to phase in, budget for, and prepare for the requirements
before they go into effect? Additionally, what are the anticipated
effects on resident health and safety that may be associated with these
preparations?
We seek input from State Medicaid programs and Medicaid interested
parties. Specifically:
Are there any alternative implementation approaches for
these requirements?
How might the proposed implementation timeframe impact
their finances and their ability to recruit in the same labor market?
How do you foresee potential interactions with other
Medicaid initiatives, including implementing access standards on home
and community-based services (HCBS)?
Finally, to the extent a court may enjoin any part of the rule, the
Department intends that other provisions or parts of provisions should
remain in effect. Any provision of this section held to be invalid or
unenforceable by its terms, or as applied to any person or
circumstance, shall be construed so as to continue to give maximum
effect to the provision permitted by law, unless such holding shall be
one of utter invalidity or unenforceability, in which event the
provision shall be severable from this section and shall not affect the
remainder thereof or the application of the provision to persons not
similarly situated or to dissimilar circumstances.
5. Consultation With State Agencies, and Other Organizations
Section 1863 of the Act (42 U.S.C. 1395z), requires the Secretary
to consult with appropriate State agencies and recognized national
listing or accrediting bodies, and appropriate local agencies, in
relation to the determination of conditions of participation for
providers of services.
Pursuant to section 1863 of the Act, in addition to publishing the
proposed rule we will consult further with the relevant entities
following the publication of the proposed rule.
III. Medicaid Institutional Payment Transparency Reporting Provision
(Sec. Sec. 438.72 and 442.43)
A. Background and Scope
Millions of Americans, including children and adults of all ages,
need long-term services and supports (LTSS) because of disabling
conditions, chronic illness, and other factors. Medicaid allows for the
coverage of these services through several authorities and over a
variety of settings, ranging from institutional facilities to home and
community-based settings. Medicaid programs are required to provide a
nursing facility benefit for eligible individuals aged 21 or older.
Medicaid programs may also provide other institutional LTSS as optional
services, including services in Intermediate Care Facilities for
Individuals with Intellectual Disabilities (ICF/IID). Medicaid is the
largest payer nationally of LTSS. In 2019, 1.5 million Medicaid
beneficiaries received nursing facility or ICF/IID services,\126\ which
accounted for
[[Page 61382]]
over $61 billion in Medicaid expenditures, or 13 percent of the $478
billion in total Medicaid expenditures during that year.\127\ Demand
for LTSS, whether delivered in institutional settings or in the home,
is expected to continue rising due to the growing needs of the aging
population.128 129
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\126\ Kim, Min-Young, Edward Weizenegger, and Andrea Wysocki.
Medicaid Beneficiaries Who Use Long-Term Services and Supports:
2019. Chicago, IL: Mathematica, July 22, 2022. Accessed at https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltss-user-brief-2019.pdf. Disclaimer: This document contains links
to non-United States Government websites. We are providing these
links because they contain additional information relevant to the
topic(s) discussed in this document or that otherwise may be useful
to the reader. We cannot attest to the accuracy of information
provided on the cited third-party websites or any other linked
third-party site. We are providing these links for reference only;
linking to a non-United States Government website does not
constitute an endorsement by CMS, HHS, or any of their employees of
the sponsors or the information and/or any products presented on the
website. Also, please be aware that the privacy protections
generally provided by United States Government websites do not apply
to third-party sites.
\127\ Murray, Caitlin, Alena Tourtellotte, Debra Lipson, and
Andrea Wysocki. Medicaid Long Term Services and Supports Annual
Expenditures Report: Federal Fiscal Year 2019. Chicago, IL:
Mathematica, December 9, 2021. Accessed at https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltssexpenditures2019.pdf.
\128\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\129\ Centers for Medicare & Medicaid Services. November 2020.
Long-Term Services and Supports Rebalancing Toolkit. Accessed at
https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltss-rebalancing-toolkit.pdf.
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As discussed in the section on Minimum Staffing Standards (section
II. of this proposed rule), anecdotal, quantitative, and qualitative
evidence indicates that consistent, adequate direct care nurse staffing
is vital to residents' health and safety. Through our regular
interactions with State Medicaid agencies, provider groups, and
beneficiary advocates, we have observed that all these interested
parties routinely express the concern that chronic understaffing and
high rates of worker turnover of direct care workers in Medicaid-
participating nursing facilities and ICF/IIDs make it difficult to
ensure access to high-quality institutional services for people with
disabilities and older adults. In addition to direct care nursing
staff, other types of direct care workers--such as physical therapists
or feeding assistants--provide long-term care services and supports
(including, if applicable, components of active treatment as defined at
Sec. 483.440) to allow residents to attain or maintain the highest
practicable physical, mental, and psychosocial well-being.
Additionally, direct care workers play a critical role in helping some
residents develop the daily living skills needed to transition out of
facilities and back to the community, as well as with assessing
individuals' readiness for discharge and assisting with discharge
planning. Also critical to residents' quality of life and quality of
care are support staff who maintain the physical environment of the
care facility or provide other supports to residents, such as
housekeeping or transportation.
Understaffing in nursing facilities and ICF/IIDs can reduce the
efficiency of Medicaid payment for services, most clearly when the
payment methodology is based on the actual cost of delivering services
and such costs are increased due to reliance on overtime and temporary
staff, which can have higher hourly costs than non-overtime wages paid
to permanent staff. Further, understaffing can reduce quality of care,
which can lead to poorer outcomes for people in institutional settings
and result in costly emergency department visits and
hospitalizations.130 131 132 Accordingly, understaffing can
reduce the cost-effectiveness of Medicaid institutional services.
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\130\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing
Facility Staffing Shortages During the COVID-19 Pandemic. Apr 04,
2022. Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\131\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\132\ Min A., Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the US Nursing
Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-165.
doi: 10.1016/j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
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In response to these concerns about the institutional workforce, we
are proposing new Federal requirements that are intended to promote
public transparency around States' statutory obligation under section
1902(a)(30)(A) of the Act and around the quality requirements in
section 1932(c) of the Act for services furnished through managed care
organizations (as well as for prepaid inpatient health plans (PIHPs)
under our authority under section 1902(a)(4) of the Act), to make
Medicaid payments that are sufficient to enlist enough providers so
that quality LTSS are available to the beneficiaries who want and
require such care. Specifically, we are proposing to add new Federal
requirements that are intended to promote better understanding and
transparency related to the percentages of Medicaid payments for
nursing facility and ICF/IID services that are spent on compensation to
direct care workers and support staff. We note that this proposal is
specific to nursing facility and ICF/IID services, which we at times
may refer to collectively in this preamble as ``institutional
services.'' We also note that unlike in sections I. and II. of this
proposed rule, we will not be referring to LTC facilities, as the term
``LTC facility,'' for our purposes in this section, is both over-
inclusive (because it can refer to both Medicare- and Medicaid-
certified nursing facilities) and under-inclusive (because the term
typically is not used to describe ICF/IIDs.)
We are focusing in this proposal on compensation because many
direct care workers and support staff earn low wages and receive
limited benefits.\133\ Evidence suggests that there is a connection
between wages and high rates of turnover among some workers in the
institutional workforce.\134\ However, we recognize that other factors,
such as local labor market conditions, worker satisfaction, facility
culture, and management practices, also play important roles in worker
turnover and shortages.\135\ Many of these other factors lie outside of
our regulatory purview or the scope of this proposal. This proposal is
centered on our authority under sections 1902(a)(4), 1902(a)(30), and
1932(c) of the Act to examine specific ways in which Medicaid payments
in fee-for-service (FFS) and managed care delivery systems are
allocated to support efficient, effective, and high-quality LTSS.
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\133\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\134\ Sharma, H. and Liu, X. Association between wages and
nursing staff turnover in Iowa. Innov Aging. 2022; 6(4): igac004.
Published online 2022 Feb 5. doi: https://academic.oup.com/crawlprevention/governor?content=%2finnovateage%2farticle%2fdoi%2f10.1093%2fgeroni%2figac004%2f6522981.
\135\ See, for instance, the discussion of potential factors
contributing to turnover of direct care nursing staff in: Zheng Q,
Williams CS, Shulman ET, White AJ. Association between staff
turnover and nursing home quality--evidence from Payroll Based
journal data. J Am Geriatr Soc. 2022 Sep;70(9):2508-2516. doi:
10.1111/jgs.17843. Epub 2022 May 7. PMID: 35524769.
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We are aware that some interested parties, including commenters who
responded to the FY2023 SNF PPS RFI, have expressed concerns about
whether some States' Medicaid rates have kept pace with rising labor
costs.\136\ We are
[[Page 61383]]
also aware of the growing scrutiny of nursing facilities that have been
purchased by companies such as private equity organizations, and
evidence suggests that these business models have an impact on the
quality of institutional care.\137\ We do not intend through this
proposal to express an opinion about amounts of States' expenditures on
nursing facility and ICF/IID services, nor to comment on corporate
organizational structures within the long-term care industry. As will
be discussed in greater detail below, we are focusing in this proposal
on data collection and transparency around the issue of compensation to
direct care workers and support staff for some types of Medicaid-
covered institutional services, not on proposing minimum reimbursement
or payment standards for State Medicaid agencies or providers.
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\136\ Referring to the Request for Information released April
2022, included in Medicare Program; Prospective Payment System and
Consolidated Billing for Skilled Nursing Facilities; Updates to the
Quality Reporting Program and Value-Based Purchasing Program for
Federal Fiscal Year 2023; Request for Information on Revising the
Requirements for Long-Term Care Facilities To Establish Mandatory
Minimum Staffing Levels. A proposed rule by the Centers for Medicare
& Medicaid Services on 04/15/2022 https://www.federalregister.gov/documents/2022/04/15/2022-07906/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities.
\137\ Centers for Medicare & Medicaid Services. February 13,
2023. Biden-Harris Administration Continues Unprecedented Efforts to
Increase Transparency of Nursing Home Ownership. Accessed at https://www.cms.gov/newsroom/press-releases/biden-harris-administration-continues-unprecedented-efforts-increase-transparency-nursing-home.
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We also recognize that there are workforce challenges that may
impact access to other Medicaid-covered services aside from
institutional services. We are focusing in this proposed rule on
addressing the workforce in certain institutional services. We are
proposing to address HCBS workforce challenges outside of this
rulemaking in the Ensuring Access to Medicaid Services proposed rule
(88 FR 27960), published in the May 3, 2023 issue of the Federal
Register. We will continue to assess the feasibility and potential
impact of other possible actions to address workforce shortages in
other parts of the health care sector.
B. Purpose and Statutory Basis
Title XIX of the Act established the Medicaid program as a joint
Federal and State program to provide medical assistance to eligible
individuals. Under the Medicaid program, each State that chooses to
participate in the program and receive Federal financial participation
(FFP) for program expenditures establishes eligibility standards,
benefits packages, and payment rates, and undertakes program
administration in accordance with Federal statutory and regulatory
requirements. The provisions of each State's Medicaid program are
described in the Medicaid ``State plan'' and, as applicable, in
documents related to a State's use of other authorities, such as
demonstration projects and waivers of State plan requirements. Among
other responsibilities, we approve State plans, State plan amendments,
demonstration projects authorized under section 1115 of the Act, and
waivers authorized under section 1915 of the Act; monitor activities;
and review expenditures for compliance with Federal Medicaid law,
including the requirements of section 1902(a)(30)(A) of the Act
relating to efficiency, economy, quality of care, and access, to ensure
that all applicable Federal requirements are met.
Section 1902(a)(30)(A) of the Act requires State Medicaid programs
to ensure that payments to providers are consistent with efficiency,
economy, and quality of care and are sufficient to enlist enough
providers so that care and services are available to beneficiaries at
least to the extent as to the general population in the same geographic
area. High-quality institutional services require hands-on services
delivered by direct care workers. In institutional settings, direct
care workers provide a variety of services, including nursing services,
assistance with activities of daily living (such as mobility, personal
hygiene, and eating), therapies, and recreation. High-quality
institutional services also require support staff who maintain the
physical environment of the care facility or provide other services for
residents (such as housekeeping, janitorial and environmental services,
food preparation, and transportation.) We discuss our proposed
definitions of direct care workers and support staff in more detail
later in the next section.
Without a sufficient number of people joining or remaining in the
direct care and support staff workforce, facilities may be less able to
meet the care needs of their residents, whether due to understaffing or
the hiring of workers without the appropriate training, expertise, or
experience to deliver high-quality services and maintain the physical
environment of the care facility. Insufficient numbers of qualified
direct care workers and support staff can lead to poorer health
outcomes and quality of life for people who need institutional
services.138 139 140 141 142 Further, these challenges can
result in facility closures that in some cases result in residents
being relocated to other facilities far from their friends and
families, due to a lack of immediately-available alternative LTSS
options in their geographical area or due to a lack of sufficient time
to seek other options for care.\143\ Therefore, as discussed in greater
detail in the next section, we propose at Sec. 442.43(b) to require
that States report annually on the percent of payments claimed by the
State for Medicaid-covered services delivered by nursing facilities and
ICF/IIDs that are spent on compensation to direct care workers and
support staff. As discussed later in this section, this proposal is
intended to promote transparency around compensation for direct care
workers and support staff. We believe that gathering and sharing data
about the amount of Medicaid dollars that are going to the compensation
of workers is a critical step in the larger effort to understand the
ways we can enact policies that support the institutional care
workforce and thereby help advance access to high quality care for
Medicaid beneficiaries.
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\138\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\139\ Yaa Akosa Antwi and John R. Bowblis. The Impact of Nurse
Turnover on Quality of Care and Mortality in Nursing Homes: Evidence
from the Great Recession. Upjohn Institute Working Paper 16-249.
January 2016. Accessed at https://research.upjohn.org/cgi/
viewcontent.cgi?article=1267&context=up_workingpapers#:~:text=Turnove
r%20in%20health%20facilities%20reduces,health%20outcomes%20(Thomas%20
et%20al.
\140\ Zheng Q, Williams CS, Shulman ET, White AJ. Association
between staff turnover and nursing home quality--evidence from
Payroll Based journal data. J Am Geriatr Soc. 2022 Sep;70(9):2508-
2516. doi: 10.1111/jgs.17843. Epub 2022 May 7. PMID: 35524769.
\141\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\142\ Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the US Nursing
Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-165.
doi: 10.1016/j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
\143\ Holder, J., & Jolley, D. (2012). Forced relocation between
nursing homes: Residents' health outcomes and potential moderators.
Reviews in Clinical Gerontology, 22(4), 301-319. doi:10.1017/
S0959259812000147.
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Section 1902(a)(6) of the Act requires State Medicaid agencies to
make such reports, in such form and containing such information, as the
Secretary may from time to time require, and to
[[Page 61384]]
comply with such provisions as the Secretary may from time to time find
necessary to assure the correctness and verification of such reports.
Under our authority at section 1902(a)(6) of the Act, and consistent
with section 1902(a)(30)(A) of the Act, we propose to newly require
that State Medicaid agencies report, at the facility level, on the
portion of payments for nursing facility and ICF/IID services that are
spent on compensation for the direct care and support staff
workforce.\144\ While some States have voluntarily established similar
transparency policies or initiatives, we believe a Federal requirement
is necessary and would be more effective to generate more meaningful
and comparable data and support transparency nationwide.
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\144\ Throughout this discussion, we use the term ``States'' to
include all States, Washington, DC, and the territories that include
nursing facility services or ICF/IID services in their State plans.
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We find no basis for applying these proposed requirements only when
States' LTSS delivery systems are FFS, and thus for the same reasons we
are proposing them for FFS delivery systems, we are also proposing to
apply them when LTSS systems are covered through managed care. For
States that contract with MCOs and PIHPs to cover services delivered by
nursing facilities and ICF/IIDs, we propose that States report annually
on the percent of payments made to nursing facilities and ICF/IIDs that
is spent for compensation to direct care workers and support staff.
Section 1932(c) of the Act lays out quality assurance standards with
which States must comply when delivering Medicaid services through
managed care organizations. Including services delivered by managed
care organizations is authorized under section 1932(c), which requires
the Secretary to both monitor States and consult with States on
strategies to ensure quality of care. Additionally, based on our
authority under section 1902(a)(4) of the Act to specify ``methods of
administration'' that are ``necessary for proper and efficient''
administration of the State plan, we also propose to include prepaid
inpatient health plans (PIHPs) in this proposed rule. Again, we see no
basis for excluding services furnished through a PIHP from the proposed
requirements; throughout this document, the use of the term ``managed
care plan'' means MCOs and PIHPs and is used only when the discussion
applies to both arrangements.
This proposal is intended to promote transparency around
compensation for direct care workers and support staff. We believe that
gathering and sharing data about the amount of Medicaid dollars that
are going to the compensation of workers is a critical step in the
larger effort to understand the ways we can enact policies that support
the institutional care workforce, which plays an essential part in the
economy, efficiency, and quality of institutional services. We believe
that compensation levels are a factor in the creation of a stable
workforce, and that a stable workforce will result in better qualified
employees, lower turnover, and safer and higher quality
care.145 146 If individuals are attracted to the
institutional LTSS workforce and incentivized to remain employed in it,
the workforce is more likely to be comprised of workers with the
training, expertise, and experience to meet the diverse and often
complex needs of individuals with disabilities and older adults
residing in institutions. A stable and qualified workforce will also
enable beneficiaries to access providers of the services they have been
assessed to need.
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\145\ See, for example, the discussion of low wages among direct
care workers in Campbell, S., A. Del Rio Drake, R. Espinoza, K.
Scales. 2021. Caring for the future: The power and potential of
America's direct care workforce. Bronx, NY: PHI http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\146\ See, for example, the discussion of the relationship
between staff turnover and nursing home quality in Zheng Q, Williams
CS, Shulman ET, White AJ. Association between staff turnover and
nursing home quality--evidence from Payroll Based journal data. J Am
Geriatr Soc. 2022 Sep;70(9):2508-2516. doi: 10.1111/jgs.17843. Epub
2022 May 7. PMID: 35524769.
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As we discuss below, we are not proposing a minimum percentage of
Medicaid payments for nursing facility services and ICF/IID services
that must be spent on compensation to direct care workers and support
staff. We do not have adequate information at this time to determine
such a minimum percentage, nor what impact requiring a minimum
percentage would have on Medicaid institutional payments. We are aware
that data collected from nursing facilities as part of the PBJ
reporting program in Sec. 483.70(q) provides the potential to begin
extrapolating information about the relationships between staffing
hours and staff compensation in nursing facilities that serve Medicaid
residents.\147\ We also understand that the variability among States'
Medicaid institutional payment rate methodologies and payment rates
presents challenges to national studies on issues related to staffing
and compensation. In addition, we note that, because there are
comparatively fewer reporting requirements for ICF/IIDs than there are
for nursing facilities, there is a need for greater data and
transparency on the workforce in these facilities. We view this
proposed transparency requirement as a necessary step in gathering and
making publicly available more information about Medicaid institutional
payments that can aid in further analyses, which in turn can inform
future policy development and potential rulemaking. Please refer to the
discussion in section IV. (Collection of Information) of this proposed
rule where we discuss in greater detail the specifics of the activities
and resources we anticipate would be required from States, managed care
plans, and providers to implement and comply with these proposed
requirements.
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\147\ See, for example, the use of Payroll Based Journal data to
analyze staffing hours and compensation in Bowblis, J., Brunt, C.,
Xu, H., and Grabowski, D. Understanding Nursing Home Spending And
Staff Levels In The Context Of Recent Nursing Staff Recommendations.
Health Affairs. 2022:42(2) 197-206.
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We also note that while aspects of this proposal are intended to
complement the goals expressed in section II of this preamble, the
following proposals presented below would be, if finalized, distinct
provisions. To the extent a court may enjoin any part of a final rule,
the Department intends that other provisions or parts of provisions
should remain in effect. Should they be finalized, we intend that any
provision of the proposals described in this section or in another
section held to be invalid or unenforceable by its terms, or as applied
to any person or circumstance, would be construed so as to continue to
give maximum effect to the provision permitted by law, unless such
holding is one of utter invalidity or unenforceability, in which event
we intend that the provision would be severable from the other
finalized provisions described in this section and in other sections
and would not affect the remainder thereof or the application of the
provision to persons not similarly situated or to dissimilar
circumstances
C. Proposed Provisions
We are proposing to create a new provision, Sec. 442.43, which
would specify requirements for States to report on compensation for
direct care workers and support staff as a percentage of Medicaid
payments for nursing facility and ICF/IID services. At Sec.
442.43(a)(1), we propose to define compensation to include salary,
wages, and other remuneration as defined by the Fair Labor Standards
Act and implementing regulations (29 U.S.C. 201 et seq., 29 CFR parts
531 and 778), and benefits (such as health and dental benefits, sick
leave, and tuition reimbursement). In
[[Page 61385]]
addition, we propose to define compensation to include the employer
share of payroll taxes for direct care workers and support staff
delivering Medicaid-covered nursing facility and ICF/IID services
(which, while not necessarily paid directly to the workers, is paid on
their behalf). We considered whether to include training or other costs
in our proposed definition of compensation. However, we believe that a
definition that more directly addresses the financial benefits to
workers would better measure the portion of the payment for services
that went to direct care workers and support staff, as it is unclear
that the cost of training and other workforce activities is an
appropriate way to quantify the benefit of those activities for
workers. We are also concerned that requesting providers to quantify
and include costs of non-financial benefits in their reporting would
prove burdensome and could introduce a lack of uniformity in
determining and reporting related costs. We request comment on our
proposed definition of compensation, particularly whether the
definition of compensation should include other specific financial and
non-financial forms of compensation for the workers included in these
proposed provisions.
At Sec. 442.43(a)(2), for the purposes of the proposed reporting
provision at Sec. 442.43(b), we propose to define direct care workers
to include: nurses (registered nurses, licensed practical nurses, nurse
practitioners, or clinical nurse specialists) who provide nursing
services to Medicaid-eligible individuals receiving nursing facility
and ICF/IID services; certified nurse aides who provide such services
under the supervision of one of the foregoing nurse provider types;
licensed physical therapists, occupational therapists, speech-language
pathologists, and respiratory therapists; certified physical therapy
assistants, occupational therapy assistants, speech-language therapy
assistants, and respiratory therapy assistants or technicians; social
workers; personal care aides; medication assistants, aides, and
technicians; feeding assistants; activities staff; and other
individuals who are paid to provide clinical services, behavioral
supports, active treatment (as defined at Sec. 483.440 \148\), or
address activities of daily living (such as those described in Sec.
483.24(b), which includes activities related to mobility, personal
hygiene, eating, elimination, and communication), for individuals
receiving Medicaid-covered nursing facility and ICF/IID services. Our
proposed definition of direct care worker is intended to broadly define
such workers to ensure that the definition appropriately captures the
diversity of roles and titles that direct care workers may have.
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\148\ Active treatment services, as defined in 42 CFR 483.440,
are services required in ICF/IIDs as part of their Medicaid
Conditions of Participation.
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We recognize that our proposed definition of direct care worker
differs from the definition of direct care staff at Sec. 483.70(q)(1),
which was established for the PBJ reporting program at Sec. 483.70(q).
The PBJ reporting program requires that LTC facilities report on the
staffing hours of specified direct care staff (but does not require
reporting on the compensation for direct care staff). In particular,
our proposed definition does not include administrators (or staff whose
primary function is administrative or supervisory), nor do we propose
to include physicians or physician assistants. This difference is
intentional as we are more closely aligning our proposed definition of
direct care worker with the definition of direct care worker for a
similar provision focused on HCBS in the Ensuring Access to Medicaid
Services proposed rule (88 FR 27960), published in the May 3, 2023
issue of the Federal Register. We believe that closer alignment of the
definition in this proposed rule with the definition in the Ensuring
Access to Medicaid Services proposed rule would help to provide a more
consistent picture of the direct care workforce for individuals
receiving Medicaid-covered LTSS across settings. We also believe that
this may reduce State reporting burden. Additionally, we believe the
definition of direct care workers proposed in this rule represents a
subset of the categories of direct care staff that nursing facilities
are already familiar with as part of the PBJ reporting
requirement.\149\ Further, we note that ICF/IIDs are currently not
required to participate in the PBJ reporting, and thus, we do not
expect them to be affected by the definition of direct care staff at
Sec. 483.70(q)(1).
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\149\ Centers for Medicare & Medicaid Services, Electronic
Staffing Data Submission Payroll Based Journal: Long-Term Care
Facility Policy Manual. https://www.cms.gov/Medicare/Quality-Initiatives-Patient-Assessment-Instruments/NursingHomeQualityInits/Downloads/PBJ-Policy-Manual-Final-V25-11-19-2018.pdf.
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We request feedback on our proposed definition of direct care
worker at Sec. 442.43(a)(2). We specifically request whether there are
categories of staff we should add to, or remove from, our proposed
definition. Additionally, we are particularly interested in ensuring
that this provision includes staff who can be instrumental in helping
residents achieve the level of health or develop skills needed to
transition from nursing facilities back into the community, assess
residents for readiness for transition, and support in discharge
planning. We request feedback from the public as to whether our
proposed definition appropriately includes workers who provide these
services, or if we would need to include such staff as a distinct
category of staff within this provision. We also request comment on
whether we should adopt the definition of direct care staff at Sec.
483.70(q)(1), instead of our proposed definition of direct care worker.
If commenters support adopting the definition of Sec. 483.70(q)(1), we
request that they also provide information on whether this definition
would include the staff who help residents achieve the level of health
or develop the skills needed to transition from nursing facilities back
into the community, assess residents for readiness for transition, and
support in discharge planning, or if these staff would still need to be
specified as a separate category.
We also propose in Sec. 442.43(a)(2) to define direct care workers
to include individuals employed by or contracted or subcontracted with
a Medicaid provider or State or local government agency. This proposal
is in recognition of the varied ownership and employment relationships
that can exist in Medicaid institutional services. For instance,
differences may include: institutions that are privately owned and
operated or facilities owned and operated by a local or State
government; facilities that are partially or wholly staffed through a
third-party staffing organization through a contractual arrangement; or
staff who are employed directly or as independent contractors. We
solicit comment on whether this component of our proposed definition
adequately captures the universe of potential employment or contractual
relationships between institutional facilities and relevant direct care
workers.
At Sec. 442.43(a)(3), for the purposes of the proposed reporting
requirement at Sec. 442.43(b), we propose to define support staff to
include individuals who are not direct care workers and who maintain
the physical environment of the care facility or support other services
(such as cooking or housekeeping) for residents. Similar to our
proposed definition of direct care worker, our proposed definition of
support staff is intended to broadly define such workers to ensure that
the definition appropriately captures the diversity of roles and titles
that such workers may have. Specifically, we
[[Page 61386]]
propose to define support staff to include: housekeepers; janitors and
environmental services workers; groundskeepers; food service and
dietary workers; drivers responsible for transporting residents; and
any other individuals who are not direct care workers and who maintain
the physical environment of the care facility or support other services
for individuals receiving Medicaid-covered nursing facility and ICF/IID
services. We request comment on whether there are other specific types
of workers, such as security guards, who should be included in the
definition. We are also soliciting comment on whether any of the types
of workers listed in this proposal should be excluded from the
definition of support staff. We also request comment, generally, on our
proposal to include support staff in this proposed reporting
requirement.
We propose to define support staff to include individuals employed
by or contracted or subcontracted with a Medicaid provider or State or
local government agency. Similar to our discussion of the proposed
definition of direct care worker in Sec. 442.43(a)(2), our intention
with this proposal is to recognize the varied employment relationships
that can exist in Medicaid institutional services, including the use of
third-party employers. (For instance, a facility may contract with a
third-party transportation company to provide transportation services
to residents.) We solicit comment on whether this component of our
proposed definition adequately captures the universe of potential
employment or contractual relationships between institutional
facilities and relevant support staff.
Based on our authority at sections 1902(a)(6) and (a)(30)(A) of the
Act with respect to FFS, and sections 1902(a)(4) and 1932(c) of the Act
with respect to managed care plans, we are proposing new reporting
requirements at Sec. 442.43(b) to require States to report annually,
by delivery system (if applicable) and by facility, on the percent of
Medicaid payments for nursing facility and ICF/IID services that is
spent on compensation for direct care workers and on compensation for
support staff, at the time and in the form and manner specified by CMS.
We believe that this information would help identify national trends
and would also help States identify facilities that appear to be
outliers in terms of the amount of Medicaid payment going to direct
care worker and support staff compensation. We believe that
contextualizing direct care worker and support staff compensation
information in this manner would help States understand whether current
payment rates for nursing facility and ICF/IID services are consistent
with economy, efficiency, and quality, and sufficient to ensure
meaningful beneficiary access.
We are proposing that the reporting to CMS would be for all
Medicaid payments made to nursing facility and ICF/IID providers. For
FFS payments, this would include base payments and supplemental
payments for nursing facility and ICF/IID services. We note that for
FFS base and supplemental payments, we are relying on the definition of
``supplemental payments'' provided in section 1903(bb)(2) of the Act,
which defines supplemental payments as Medicaid payments to a provider
that are in addition to any base payment made to providers under the
State plan or under demonstration authority. As discussed in guidance
released in 2021, we interpret ``base payment'' (as used in the
definition of ``supplemental payment'' in section 1903(bb)(2)(A) of the
Act), to refer to a standard payment to the provider on a per-claim
basis for services rendered to a Medicaid beneficiary in an FFS
environment. The base payment can include: (1) any payment adjustments;
(2) any add-ons; and/or (3) any other additional payments received by
the provider that can be attributed to services identifiable as having
been provided to an individual beneficiary, including those that are
made to account for a higher level of care, complexity, or intensity of
services provided to an individual beneficiary.\150\
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\150\ Centers for Medicare & Medicaid Services, State Medicaid
Directors Letter # 21-006, New Supplemental Payment Reporting and
Medicaid Disproportionate Share Hospital Requirements under the
Consolidated Appropriations Act, 2021, December 10, 2021. https://www.medicaid.gov/federal-policy-guidance/downloads/smd21006.pdf.
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We are proposing that States report on FFS base and supplemental
payments made to facilities because we believe this would provide a
comprehensive picture of Medicaid FFS payments made for these services.
However, we recognize that, given the variability in both base and
supplemental payments across (and even within) States, there may be
value in understanding the percent of the base payments alone that is
going to compensation for direct care workers and support staff. We
solicit comment on whether, for FFS payments, we should instead request
reporting on only the percent of base payments spent on such
compensation, or separate reporting on the percent of base payments and
on the percent of aggregated payments (base plus supplemental payments)
spent on such compensation.
We also propose at Sec. 442.43(b) that for States that contract
with MCOs and/or PIHPs to cover services delivered by nursing
facilities and/or ICF/IIDs, that States report on the percent of
payments made by the MCO or PIHP to nursing facilities and ICF/IIDs
that is spent for compensation to direct care workers and support
staff. For these managed care plans, payments would include the managed
care plan's contractually negotiated rate, State directed payments
defined in Sec. 438.6(a), pass-through payments defined in Sec.
438.6(a) for nursing facilities, and any other payments from the MCO or
PIHP to the nursing facility or ICF/IID. We are also proposing to
require that States, if they deliver the relevant services through both
FFS and managed care, they report separately for each delivery system.
We note that we are proposing that the reporting be performed
annually. We solicit comment on this timeframe. We request comment on
whether annual reporting is reasonable, or if we should reduce the
frequency of reporting to every other year or every 3 years.
We propose at Sec. 442.43(b)(1) to require this reporting for
payments, including FFS base and supplemental payments and payments
from managed care plans, to nursing facilities and ICF/IIDs for
Medicaid-covered services, with the exception of services offered in
swing bed hospitals (as described in Sec. 440.40(a)(1)(ii)(B)). We are
proposing to exclude swing bed hospitals, as we do not want to pose a
burden on rural hospitals that provide LTSS to a comparatively small
number of beneficiaries. We welcome comment on this proposal.
At Sec. 442.43(b)(2), we propose that States exclude from the
reporting payments for which Medicaid is not the primary payer. If
finalized, this would mean that States would exclude Medicaid payments
to cover only cost-sharing payments on behalf of residents who are
dually eligible for Medicare and Medicaid and whose skilled nursing
care services are paid for by Medicare. We are proposing this exclusion
for two reasons. The first is that, given that facilities (particularly
nursing facilities) receive revenue from sources other than Medicaid,
we wish to reiterate that this reporting is limited to only the percent
of Medicaid payments going to compensation for direct care workers and
support staff (and thus would not include Medicare or private
payments). The second reason for this exclusion is that the goal of
this reporting, as discussed throughout this preamble, is to collect
data demonstrating the
[[Page 61387]]
relationship between Medicaid payments for nursing facility and ICF/IID
services and the wages paid to direct care workers and support staff.
We believe that including cost-sharing payments for services that were
primarily paid for by Medicare is outside the scope of this data
collection. However, we solicit feedback from the public on whether
including cost-sharing payments for services that were primarily paid
for by Medicare would provide a more accurate picture of the
relationship between Medicaid payments and worker compensation. We also
request comment on whether excluding cost-sharing payments would
increase or decrease burden on States and providers.
We also note that we are not proposing to exclude beneficiary
contributions to their care when Medicaid is the primary payer of the
services. For FFS programs, base payments included in the reporting
should be representative of the total payment amount a provider would
expect to receive as payment-in-full for the provision of Medicaid
services to individual beneficiaries. (We note that Sec. 447.15
defines payment-in-full as ``the amounts paid by the agency plus any
deductible, coinsurance or copayment required by the plan to be paid by
the individual.'') For managed care delivery systems, although the term
``payment-in-full'' as defined at Sec. 447.15 is not applicable, for
consistency between FFS and managed care delivery systems, any
deductible, coinsurance or copayment required to be paid by the
individual would similarly be included in the total amount used to
determine the percent of Medicaid payments for nursing facility and
ICF/IID services that is spent on compensation for direct care workers
and support staff. Therefore, we believe the rate used for comparison
should be inclusive of total payment from the Medicaid agency, MCO, or
PIHP plus any applicable coinsurance, copayments and deductibles, to
the extent that a beneficiary is expected to be liable for those
payments. We note that this understanding helps promote consistency
with a proposal regarding payment reporting in the Ensuring Access to
Medicaid Services proposed rule (see, in particular, the discussion at
88 FR 28012). We welcome feedback on whether commenters believe
beneficiary contributions should be excluded.
We considered whether to allow States, at their option, to exclude
from their reporting payments to providers that have low Medicaid
revenues or serve a small number of Medicaid beneficiaries, based on
Medicaid revenues for the service, the number of Medicaid beneficiaries
receiving the service, or other Medicaid utilization data including but
not limited to Medicaid bed days. We considered this option as a way to
reduce State, managed care plan, and provider data collection and
reporting burden based on the experience of States that have
implemented similar reporting requirements. However, we are concerned
that such an option could discourage providers from serving Medicaid
beneficiaries or increasing the number of Medicaid beneficiaries
served. We request comment on whether we should allow States the option
to exclude, from their reporting to us, payments to providers that have
low Medicaid revenues or serve a small number of Medicaid
beneficiaries, based on Medicaid revenues for the service, the number
of Medicaid beneficiaries receiving the service, or other Medicaid
utilization data including but not limited to Medicaid bed days. We
also request comment on whether we should establish a specific limit on
such an exclusion and, if so, the specific limit we should establish,
such as to limit the exclusion to providers in the lowest 5th, 10th,
15th, or 20th percentile of providers in terms of Medicaid revenues for
the service, number of Medicaid beneficiaries served, or other Medicaid
utilization data (including but not limited to Medicaid bed days.)
At Sec. 442.43(c)(1), we propose that the reporting must provide
information necessary to identify, at the facility level, the percent
of Medicaid payments spent on compensation to: direct care workers at
each nursing facility, support staff at each nursing facility, direct
care workers at each ICF/IID, and support staff at each ICF/IID. We
anticipate that States and providers would be able to obtain the
information needed to calculate the percent of Medicaid payments made
to direct care workers and support staff using data used in rate
setting, internal wage information, cost reports, and resident census
numbers (which would indicate the number of days residents had
Medicaid-covered stays during the year.) However, we solicit comment on
our proposal that information be reported at the facility level,
particularly on any concerns about potential burden on providers and
States.
In constructing this proposal, we sought to balance the need for
useful data with burden on States and providers, and we do not want to
request more information than is necessary to get basic insight into
the relationship between Medicaid payments and direct worker and
support staff compensation. To that end, we are proposing to include in
the reporting requirement the percentages of Medicaid payments to each
nursing facility or ICF/IID that are going towards compensation to
direct care workers and support staff at those facilities. However, we
would consider adding to the proposed reporting requirements additional
elements for States to report on median hourly compensation for direct
care workers and median hourly compensation for support staff, in
addition to the percent of Medicaid payments going to overall
compensation for these workers. If commenters believe reporting on
median compensation would yield useful information, we request that
commenters also provide feedback on whether the reporting should be on
salary/wages, or on total compensation (salary/wages and other
remuneration, including employer expenditures for benefits and payroll
taxes), and whether the information should be calculated for all direct
care workers and for all support staff, or further broken down by the
staff categories specified in our proposal at Sec. 442.43(a)(2) and
(3).
At Sec. 442.43(c)(2), we propose that States must report the
information required at Sec. 442.43(c)(1) (the percent of Medicaid
payment going to compensation for direct care workers and support staff
and, if added to the provision, median hourly wages) according to a
methodology that we provide. We believe it is important to have States
use a consistent methodology when collecting and reporting information
from facilities. If this proposal is finalized, we would specify a
reporting methodology as part of the reporting instrument, which would
be submitted separately for formal public comment under the processes
set forth by the Paperwork Reduction Act. We are not proposing to
codify a specific reporting methodology to allow for increased
flexibility to refine and adapt the reporting methodology as States and
CMS gain experience with the process. At this time, we solicit initial
suggestions for an appropriate methodology for identifying the
percentage of Medicaid payment that has gone to direct care worker and
support staff compensation (noting that the underlying elements of the
methodology could change should any final reporting requirements change
in response to comments received on this proposed rule). We also
solicit initial suggestions whether separate methodologies would be
appropriate for base payments and supplemental payments, and if so,
suggestions for each. Commenters who support adding
[[Page 61388]]
a requirement to report median hourly wages are also welcome to provide
suggestions for a methodology for those calculations.
To support our goal of transparency, we are considering adding a
provision requiring that States make publicly available information
about the underlying FFS payment rates themselves for nursing facility
and ICF/IID services. We believe it is likely that being able to view
the reported information (percent of Medicaid payments going to
compensation for direct care workers and support staff and, if added to
the provisions, the median hourly wages) might be more meaningful if
interested parties could review this data with the added context of
information about typical nursing facility and ICF/IID FFS per diem
payments in those States that use a FFS delivery model for these
services. While we approve States' FFS methodologies for setting the
rates for nursing facility and ICF/IID services as part of the State
plan amendment process, we do not currently require States to report
the rates for these services. Further, the amounts can change over time
without further State plan review according to the CMS-approved rate
methodology (for example, when the State plan rate methodology is based
on Medicare rates for services and not a fixed fee schedule). We have
also heard from interested parties that members of the public would be
interested in comparing the per diem rates nationally. Additionally, we
have heard from providers that, as Medicaid payments to individual
facilities may vary due to differences in acuity, add-on payments, or
other factors, providers would be interested in comparing their own
Medicaid revenues against an average or typical per diem rate in their
State. We are considering adding to the proposed reporting provisions a
requirement that, as applicable, States report a single average
statewide FFS per diem rate (one reported rate for nursing facility
services and one reported rate for ICF/IID services.) If commenters
agree that this information should be added to the reporting
requirements, we request comment on whether the reported average should
be the average of only the per diem base payment rates, or the average
of the per diem base payment rates plus supplemental payments. We are
weighing both options, as reporting on the average of the per diem base
payment rate (without including supplemental payments) would provide an
average that is more representative of the ``typical'' per diem rate
(since not all facilities necessarily receive supplemental payments.)
On the other hand, an average that includes both the per diem base
payment rate and supplemental payments would provide a more complete
picture of the total Medicaid spending on these services. We request
comment on which option interested parties believe would provide the
most useful snapshot of payment for these services.
We do note that in the Ensuring Access to Medicaid Services
proposed rule (88 FR 27960), we are proposing at Sec. 447.203(b)(1)
that States publish all Medicaid FFS rates. This new proposed process
would require States to publish their FFS Medicaid base payment rates
in a clearly accessible, public location on the State's website. In
Sec. 447.203(b)(2) and (3) of the Ensuring Access to Medicaid Services
proposed rule, we proposed that States would be required to conduct a
comparative payment rate analysis between the States' Medicaid payment
rates and Medicare rates for certain services, and provide a payment
rate disclosure for certain HCBS that would include an average hourly
rate for those specified HCBS.
We believe that the proposal we are considering here is both
complementary to, and distinguishable from, the proposals in the
Ensuring Access to Medicaid Services proposed rule. The payment rate
transparency proposal in the Ensuring Access to Medicaid Services
proposed rule at Sec. 447.203(b)(1), while comprehensive, would
request specifically payment rates made to providers delivering
Medicaid services to Medicaid beneficiaries through the FFS delivery
model. To the extent rates are bundled, we are proposing publication of
unbundled rates by constituent service. This is distinct from the
proposal in this proposed rule, which is proposing to examine per diem
rates, solely in nursing facilities and ICF/IID. A per diem rate is
akin to a bundled rate and typically is not reflective of the cost of
an individual service; as such, the proposals generally would examine
different payment rates. Additionally, the comparative payment rate
analysis proposed in the Ensuring Access to Medicaid Services proposed
rule at Sec. 447.203(b)(2) focuses on comparing to Medicare rates for
specified services, which is not an element included in this proposal.
Finally, the proposal in the Ensuring Access to Medicaid Services
proposed rule at Sec. 447.203(b)(3) that would require disclosure of
hourly payment rates is for HCBS and would therefore not overlap with
nursing facility and ICF/IID services.
We also note that this potential reporting requirement would only
be for FFS systems. For managed care programs, we are not considering
requiring the public reporting of the contractually negotiated rates
for individual providers. .
We considered whether to propose a requirement that a minimum
percentage of all Medicaid payments, including but not limited to base
payments and supplemental payments, with respect to Medicaid-covered
nursing facility services and ICF/IID services be spent on compensation
to direct care workers and support staff. However, we do not have
adequate information at this time to determine a minimum percentage of
the payments for Medicaid-covered nursing facility services and ICF/IID
services that should be spent on compensation for direct care workers
and support staff. In consideration of potential future rulemaking, we
request comment on whether we should require that a minimum percentage
of the payments for Medicaid-covered nursing facility services and ICF/
IID services be spent on compensation for direct care workers and
support staff. We also request comment on whether such a requirement
would be necessary to ensure that payment rates and methodologies are
economic and efficient and consistent with meaningful beneficiary
access to safe, high-quality care, or otherwise necessary for the
proper and efficient operation of the State plan. Additionally, we
request suggestions on the specific minimum percentage of payments for
Medicaid-covered nursing facility services and ICF/IID services that
should be required to be spent on compensation to direct care workers
and support staff. If a minimum percentage is recommended, we request
that commenters provide separate recommendations for nursing facility
services and ICF/IID services and the rationale for each such minimum
percentage that is recommended. We request that commenters provide data
or evidence to support such recommendations, which we will review as
part of our consideration of policy and rulemaking options.
Based on our authority in sections 1902(a)(6) and 1902(a)(30)(A) of
the Act with respect to FFS, and sections 1902(a)(4) and 1932(c) of the
Act with respect to managed care plans, we are proposing new
requirements to promote public transparency related to the
administration of Medicaid-covered institutional services. We believe
that promoting public transparency is an important first step for
holding States accountable for ensuring that Medicaid payments are used
in a way that is efficient and economic, to provide a
[[Page 61389]]
foundation for future analyses of whether the payments are sufficient
to enlist enough providers so that quality LTSS are available to the
beneficiaries who want and require such care. Feedback from interested
parties during various public engagement activities over the past
several years has indicated that States do not routinely make publicly
available information on the percent of payments that are going to the
workforce, specifically. As a result, we believe that the proposal
described immediately below is needed to support the efficient
administration of Medicaid coverage of nursing facility and ICF/IID
services by promoting public transparency and accountability related to
the percent of payments for such services that goes to compensation to
direct care workers and support staff.
Specifically, at Sec. 442.43(d), we propose to require States to
operate a website that meets the availability and accessibility
requirements at Sec. 435.905(b) of this chapter and that provides the
results of the newly proposed reporting requirements in Sec.
442.43(b). We request comment on whether the proposed requirements at
Sec. 435.905(b) are adequate to ensure the availability and the
accessibility of the information for people receiving LTSS and other
interested parties. We note that the accessibility and availability
requirements set forth in Sec. 435.905(b) focus on whether the
language used on a website is accessible to computer users with
disabilities or limited English proficiency. Other accessibility
considerations, including the labelling of website links, ensuring the
website content is up-to-date, or providing specific information about
how users may access assistance are addressed in subsequent proposals
below.
At Sec. 442.43(d)(1), we propose to require that the data and
information that States are required to report in Sec. 442.43(b) be
provided on one website, either directly or by linking to relevant
information on the websites of the managed care plan that is contracted
to cover nursing facility or IFC/IID services. We intend for the States
to be ultimately responsible for ensuring compliance with the proposal,
including to ensure through contractual arrangements with managed care
plans, as applicable, that the proposed requirements are satisfied when
required information is provided on websites maintained by these plans.
Proposed Sec. 442.43(d) contemplates that some States that provide
nursing facility or ICF/IID services through managed care may decide to
work with their managed care plans to make the reporting information
available on the managed care plans' websites, rather than replicating
the information directly on the State's website. We request comment on
whether States should be permitted to link to websites of these managed
care plans, and if so, whether we should limit the number of separate
websites that a State could link to in place of directly reporting the
information on its own website; or whether we should require that all
the required information be posted directly on a website maintained by
the State.
At Sec. 442.43(d)(2), we propose to require that the website
include clear and easy to understand labels on documents and links. At
Sec. 442.43(d)(3), we propose to require that States verify the
accurate function of the website and the timeliness of the information
and links at least quarterly. We note here that the intent of Sec.
442.43(d)(3) is to require that States ensure that the reporting
information on their own website is up to date. We would also expect,
if the State is linking to a managed care plan website, that the State
ensure on at least a quarterly basis that the links are operational and
continue to link to the information States are required to report in
Sec. 442.43(b). We are not proposing to direct that managed care plans
must also review their websites quarterly, but rather we expect that
States would develop a process with their managed care plans to ensure
that any reporting information contained on a managed care plan website
is timely and accurate. If a State obtains information that a managed
care plan website to which the State links as a means of publishing the
required reporting information is not being maintained with timely
updates for ongoing accuracy, we expect that the State would work with
the relevant managed care plan to correct the situation and, if
unsuccessful, would cease linking to that managed care plan's website
and would begin to post the required reporting information on a State-
maintained website. We request comment on this proposal, including
whether this timeframe for website review is sufficient or if we should
require a shorter timeframe (monthly) or a longer timeframe (semi-
annually or annually).
At Sec. 442.43(d)(4), we propose to require that States include
prominent language on the website explaining that assistance in
accessing the required information on the website is available at no
cost to the public and include information on the availability of oral
interpretation in all languages and written translation available in
each non-English language, how to request auxiliary aids and services,
and a toll-free and TTY/TDY telephone number. We request comment on
whether these requirements are sufficient to ensure the accessibility
of the information for people receiving nursing facility or ICF/IID
services and other interested parties.
We are also proposing at Sec. 442.43(e) that we must report on our
website (Medicaid.gov or a successor website) the information reported
by States to us under Sec. 442.43(b). Specifically, we envision that
we would update our website to provide information reported by each
State on the percent of payments for Medicaid-covered services
delivered by nursing facilities and ICF/IIDs that is spent on
compensation to direct care workers and support staff (and, if added to
the provision, information on median hourly wages) which would allow
the information to be compared across States and providers. We also
envision using data from State reporting in future iterations of the
CMS Medicaid and CHIP Scorecard.\151\ We note that if, based on public
comment, we add a requirement that States provide information about
their payment rates for nursing facility and ICF/IID services, we would
provide this information on our website as a way of providing easy-to-
find context for the other payment information reported by States. We
currently do not intend to include the information on payment rates in
the CMS Medicaid and CHIP Scorecard.
---------------------------------------------------------------------------
\151\ CMS's Medicaid and CHIP Scorecard. Accessed at https://www.medicaid.gov/state-overviews/scorecard/index.html.
---------------------------------------------------------------------------
We recognize that many States may need time to implement these
requirements, including to amend provider agreements or managed care
contracts, make State regulatory or policy changes, implement process
or procedural changes, update information systems for data collection
and reporting, or conduct other activities to implement these proposed
payment transparency reporting requirements. We also expect that it
would take a substantial amount of time for managed care plans and
providers to establish the necessary systems, data collection tools,
and processes necessary to collect the required information to report
to States. As a result, we are proposing, at Sec. 442.43(f), to
provide States with 4 years to implement these requirements in FFS
delivery systems following the effective date of the final rule. This
proposed timeline reflects feedback from States and other interested
parties that it could take 3 to 4 years for States to complete any
necessary work to amend State regulations, policies, operational
processes, information
[[Page 61390]]
systems, and contracts to support implementation of the proposals
outlined in this section. We invite comments on whether this timeframe
is sufficient, whether we should require a shorter or longer timeframe
(such as 3 or 5 years) to implement these provisions, and if a shorter
or longer timeframe is recommended, the rationale for that shorter or
longer timeframe.
In the context of Medicaid coverage of nursing facility and ICF/IID
services, we believe that the foregoing reasons for the reporting
requirements proposed in this rule apply to the delivery of these
services regardless of whether they are covered directly by the State
on an FFS basis or by a managed care plan for its enrollees.
Accordingly, we are proposing to apply the requirements at Sec. 442.43
to both FFS and managed care delivery systems through incorporation by
reference in a new regulation in 42 CFR part 438, which generally
governs Medicaid managed care programs. Specifically, we propose to add
a cross-reference to the requirements in proposed Sec. 438.72(a) to be
explicit that States that include nursing facility and/or ICF/IID
services in their MCO or PIHP contracts would have to amend their
contracts to the extent necessary to comply with the requirements at
Sec. 442.43 and propose at Sec. 442.43(b) that payments from MCOs and
PIHPs count as ``Medicaid payments'' for purposes of those
requirements. We believe this would make the obligations of States that
implement LTSS programs through a managed care delivery system clear
and consistent with the State obligations for Medicaid FFS delivery
systems. Additionally, for States with managed care delivery systems
under the authority of sections 1915(a), 1915(b), 1932(a), or 1115(a)
of the Act and that include coverage of nursing facility services and/
or ICF/IID services in the MCO's or PIHP's contract, we are proposing
to provide States until the first managed care plan contract rating
period that begins on or after the date that is 4 years after the
effective date of the final rule to implement these requirements. We
solicit feedback on the proposed application of the reporting
requirement to managed care and the proposed effective date. We also
invite comments on whether the proposed effective date timeframe is
sufficient, whether we should require a longer timeframe (such as 5
years) to implement these provisions, and if a longer timeframe is
recommended, the rationale for that longer timeframe.
We expect that, should we finalize these reporting requirements, we
would establish new processes and forms for States to meet the
reporting requirements, provide additional technical information on how
States can meet the reporting requirements, and establish new templates
consistent with requirements under the Paperwork Reduction Act. We
invite comment on this approach, particularly regarding any additional
guidance we would need to provide or actions we would need to take to
facilitate States' implementation of these proposed provisions.
Finally, in consideration of potential future rulemaking, we
request comment on whether we should propose that States implement an
interested parties' advisory group in parallel with proposed
requirements at Sec. 447.203(b)(6) in the Ensuring Access to Medicaid
Services proposed rule (88 FR 29260). Per the discussion in the
Ensuring Access to Medicaid Services proposed rule at 88 FR 28024, we
are proposing at Sec. 447.203(a)(6) to require States to establish an
interested parties advisory group to advise and consult on the
sufficiency of FFS rates paid to direct care workers providing certain
HCBS. We would be interested in hearing from the public if we should
consider developing requirements for States to establish a similar
group to advise and consult on nursing facility and ICF/IID service
rates.
IV. Collection of Information Requirements
Under the Paperwork Reduction Act of 1995, we are required to
provide 60-day notice in the Federal Register and solicit public
comments before a collection of information requirement is submitted to
the Office of Management and Budget (OMB) for review and approval. In
order to fairly evaluate whether an information collection should be
approved by OMB, section 3506(c)(2)(A) of the Paperwork Reduction Act
of 1995 requires that we solicit comment on the following issues:
The need for the information collection and its usefulness
in carrying out the proper functions of our agency.
The accuracy of our estimate of the information collection
burden.
The quality, utility, and clarity of the information to be
collected.
Recommendations to minimize the information collection
burden on the affected public, including automated collection
techniques.
In analyzing information collection requirements (ICRs), we rely
heavily on wage and salary information. Unless otherwise indicated, we
obtained all salary information from the May 2022 National Occupational
Employment and Wage Estimates, BLS at https://www.bls.gov/oes/current/oes_nat.htm. We have calculated the estimated hourly rates in this
proposed rule based upon the national mean salary for that particular
position increased by 100 percent to account for overhead costs and
fringe benefits. The wage and salary data from the BLS do not include
health, retirement, and other fringe benefits, or the rent, utilities,
information technology, administrative, and other types of overhead
costs supporting each employee. The HHS wide guidance on preparation of
regulatory and paperwork burden estimates states that doubling salary
costs is a good approximation for including these overhead and fringe
benefit costs.
Table 6 presents the BLS occupation code and title, the associated
LTC facility staff position in this regulation, the estimated average
or mean hourly wage, and the adjusted hourly wage (with a 100 percent
markup of the salary to include fringe benefits and overhead costs).
Where available, the mean hourly wage for Nursing Care Facilities
(Skilled Nursing Facilities) \152\ was used.
---------------------------------------------------------------------------
\152\ https://www.bls.gov/oes/current/naics4_623100.htm.
[[Page 61391]]
Table 6--Summary Information of Estimated Hourly Costs
----------------------------------------------------------------------------------------------------------------
Adjusted hourly
wage (with 100%
Associated markup for fringe
Occupation code BLS occupation title position title in Mean hourly benefits &
this regulation wage ($/hour) overhead) ($/
hour) (rounded to
nearest dollar)
----------------------------------------------------------------------------------------------------------------
29-1141......................... Registered Nurses Registered Nurse.. $37.11 $74
(Nursing Care
Facilities (Skilled
Nursing Facilities)).
11-9111......................... Medical and Health Director of 49.91 100
Services Managers Nursing (DON) and
(Nursing Care Administrator.
Facilities (Skilled
Nursing Facilities)).
29-1216......................... General Internal Medical Director.. 93.90 188
Medicine Physicians
(General Medical and
Surgical Hospitals).
43-6013......................... Medical Secretaries and Administrative 20.30 41
Administrative Assistant.
Assistants (General
Medical and Surgical
Hospitals).
29-1229......................... Physician, All Other Medical Director.. 135.86 272
(Specialty (except
Psychiatric and
Substance Abuse)).
29-1031......................... Dieticians and Food and Nutrition 31.63 63
Nutritionists. Manager.
(Nursing Care
Facilities (Skilled
Nursing Facilities)).
11-3013......................... Facilities Manager..... Facilities Manager 50.95 102
29-2061......................... Licensed Practical and Licensed Nurse.... 28.10 56
Licensed Vocational
Nurses (Nursing Care
Facilities (Skilled
Nursing Facilities)).
31-1131......................... Nursing Assistants Certified Nursing 16.90 34
(Nursing Care Assistance (CNA).
Facilities (Skilled
Nursing Facilities)).
----------------------------------------------------------------------------------------------------------------
We are soliciting public comments on each of these issues for the
following sections of this document that contain information collection
requirements (ICRs):
A. ICRs Regarding Sec. 483.35 Nursing Services
At Sec. 483.35(a), we propose that each LTC facility would have to
provide services by sufficient numbers of each of the following types
of personnel identified in this section on a 24-hour basis to provide
nursing care to all residents in accordance with resident care plans.
Except when exempted under paragraph (g) of this section, licensed
nurses, including but not limited to 0.55 hours per resident day of
registered nurses; and other nursing personnel, including but not
limited to 2.45 hours per resident day of NAs or, if necessary, LPNs.
Except when waived under paragraph (e) of this section, each LTC
facility must also have a RN on site 24 hours per day, for 7 days a
week that is available to provide direct resident care.
These proposed requirements would require each LTC facility to
review and modify, as necessary, its policies and procedures regarding
nurse staffing. We believe the review and modifications to the
necessary policies and procedures would require activities by the
director of nursing (DON), an administrator, and an administrative
assistant. The DON and the administrator would need to review the
requirements, as well as the facility assessment, to determine if any
changes are were necessary to the policies and procedures and, if so,
make those necessary changes. The DON would then need to work with a
medical administrative assistant to ensure that those changes were made
to the appropriate documents and ensure that all appropriate
individuals in the facility were made aware of the changes. We estimate
that these activities would require 2 burden hours for an administrator
at a cost of $200 ($100 x 2), 3 hours for the DON at a cost of $300
($100 x 3), and 1 hour for the administrative assistant at a cost of
$41 ($41 x 1). Hence, for each LTC facility the burden estimate would
be 6 hours (2 + 3+1) at a cost of $ 541 ($200 + $300 + $41). There are
currently 14,688 LTC facilities. Thus, the burden for all LTC
facilities would be 88,128 (14,688 x 6) hours at a cost of $7,946,208
($541 x 14,688 LTC facilities).
B. ICRs Regarding Sec. 483.71 Facility Assessment
For the proposed new section, Sec. 483.71 Facility assessment, we
propose to relocate the existing requirements at Sec. 483.70(e)
Facility assessment to the new Sec. 483.71. We also propose to modify
certain specific requirements and add a third section that will set
forth the activities for which we expect LTC facilities to use their
facility assessments.
We are proposing to relocate current Sec. 483.70(e)(1) (i) through
(v) to Sec. 483.71(a)(1)(i) through (v). This section sets forth what
the facility assessment must address or include, but is not limited to,
regarding the facility's resident population. At Sec.
483.71(a)(1)(ii), we propose to add ``using evidence-based, data-driven
methods'' and ``behavioral health issues'' so that the requirement
would now read, ``(ii) The care required by the resident population,
using evidence-based, data driven methods that consider the types of
diseases, conditions, physical and behavioral health issues, cognitive
disabilities, overall acuity, and other pertinent facts that are
present within that population;''. At Sec. 483.71(a)(1)(iii), we
propose to add, ``and skill sets'' so the requirement reads, (iii) The
staff competencies and skill sets that are necessary to provide the
level and types of care needed for the resident population. We believe
these modifications constitute clarifications in the requirements and
are not new requirements for which the LTC facilities must comply.
Hence, we will not be analyzing any new or additional burden related to
these changes.
We propose to relocate the current requirements at Sec.
483.70(e)(2)(i) through (vi) to Sec. 483.71(a)(2)(i) through (vi). At
Sec. 483.71(a)(2)(iii), we propose to add ``behavioral health'' so
that the requirement reads, (iii) Services provided, such as physical
therapy, pharmacy, behavioral health, and specific rehabilitation
therapies. Behavioral health services requirements are set forth at
Sec. 483.40 and are integral to the health of residents. All LTC
facilities should be considering the behavioral health care needs of
their residents. Hence, this change does not constitute a new
requirement but a clarification. Hence, we will not be
[[Page 61392]]
analyzing any new or additional burden related to this change.
We propose to add a new requirement at Sec. 483.71(a)(4) for LTC
facilities to incorporate the input of facility staff and their
representatives into their facility assessment. These staff categories
include, but are not limited to, nursing home leadership, management,
direct care staff and representatives and other service workers. We
believe that LTC facilities already include many of these categories of
individuals when they conduct or update their facility assessments.
Thus, this requirement constitutes a clarification and not a new
requirement. Hence, we will not be analyzing any new or additional
burden related to this change.
We propose to add new requirements at Sec. 483.71(b). These
requirements set forth specific activities for which the LTC facilities
would be expected to use their facility assessments. These assessments
would inform staffing decisions to ensure that a sufficient number of
staff with the appropriate competencies and skill sets necessary to
care for its residents' needs as identified through resident
assessments and plans of care as required in Sec. 483.35(a)(3);
consider specific staffing needs for each resident unit in the
facility, and adjust as necessary based on changes its to resident
population; consider specific staffing needs for each shift, such as
day, evening, night, and adjust as necessary based on any changes to
its resident population; and, develop and maintain a plan to maximize
recruitment and retention of direct care staff.
We believe that LTC facilities are either already using their
facility assessments for these activities or will be based upon the
other requirements in this proposed rule, except for using their
facility assessments to develop and maintain a plan to maximize
recruitment and retention of direct care staff. Based upon our
experience with LTC facilities, these facilities are already working on
recruitment and retention of direct care staff. However, we also
believe these facilities would need to review their current efforts to
determine if there are opportunities to improve their efforts and, if
so, decide how to do so. The LTC facility's facility assessment would
require the development of a plan to maximize recruitment and retention
and accomplish the associated tasks and would also be an invaluable
tool in assessing and maintaining sufficient staff for their facility.
The staff involved in developing this plan would vary by the type
of care and services provided by the individual facilities. Some LTC
facilities might have various therapists on staff, such as physical and
occupational therapists. Others might employ psychologists, social
workers, or complementary medicine or American Indian/Alaska Native
Traditional Healers who provide behavioral health services to
residents. When developing a recruitment and retention plan, we
encourage LTC facilities to include participation, or at least input,
from the various types of direct care staff in their facilities and
representatives of these workers, although the hours worked by those
staff cannot be used as substitutes for the direct care minimums for
RNs and NAs required under this rule. All LTC facilities provide 24-
hour nursing services and the direct care nursing staff would include
RNs, other licensed nurses (LPNs or LVNs), and nursing assistants
(NAs). For the purpose of estimating the burden for developing a
recruitment and retention plan, we estimate the burden for an
administrator, the DON, and one individual from each of the nursing
categories, an RN, LPN/LVN, and NA to develop the plan. These
individuals would have to meet to develop a plan and then the
administrator will need to obtain approval for the plan from the
governing body. During the development process and after approval, an
administrative assistant would need to provide support and ensure the
plan is disseminated and save appropriately in the facility's records.
We estimate that developing a recruitment and retention plan would
require 6 hours for an administrator at a cost of $600 ($100 x 6); 6
hours for the DON at a cost of $600 ($100 x 6); 4 hours for a
registered nurse at a cost of $296 ($74 x 4); 2 hours for a LPN/LVN at
a cost of $112 ($56 x 2); 2 hours for a nursing assistant at a cost of
$68 ($34 x 2); and, 2 hours for an administrative assistant $82 ($41 x
2). Thus, the burden for each LTC facility is 22 (6 + 6 + 4 + 2 + 2 +
2) hours at an estimated cost of $1,758 ($ 600 + $600 + $296 + $112 +
$68 + 82). For all 14,688 LTC facilities the burden would be 323,136
hours (14,688 LTC facilities x 22) at an estimated cost of $25,821,504
($1,758 x 14,688 LTC facilities). We are requesting comment on our
estimated number of burden hours for the proposal for each of the
activities and total annual burden and cost for each facility.
Hence, the total estimated burden for the ICRs in part 483 is
411,264 (88,128 + 323,136) hours at a cost of $33,767,712 ($7,946,208+
$25,821,504). The burden will be included in this revised Information
Collection Request under the OMB control number 0938-1363; Expiration
date: April 30, 2026.
C. ICR Related to Medicaid Institutional Payment Transparency
1. Wage Estimates
To derive average costs, we used data from the U.S. Bureau of Labor
Statistics (BLS) May 2022 National Occupational Employment and Wage
Estimates for all salary estimates (http://www.bls.gov/oes/current/oes_nat.htm). In this regard, Table 7 presents BLS's mean hourly wage,
our estimated cost of fringe benefits and other indirect costs
(calculated at 100 percent of salary), and our adjusted hourly wage.
Table 7--National Occupational Employment and Wage Estimates
----------------------------------------------------------------------------------------------------------------
Fringe
Occupation Mean hourly benefits and Adjusted
Occupation title code wage ($/hr) overhead ($/ hourly wage ($/
hr) hr)
----------------------------------------------------------------------------------------------------------------
Administrative Services Manager................. 11-3012 55.59 55.59 111.18
Chief Executive................................. 11-1011 118.48 118.48 236.96
Compensation, Benefits, and Job Analyst......... 13-1141 36.50 36.50 73.00
Computer Programmer............................. 15-1251 49.42 49.42 98.84
General and Operations Manager.................. 11-1021 59.07 59.07 118.14
Management Analyst.............................. 13-1111 50.32 50.32 100.64
Training and Development Specialist............. 13-1151 33.59 33.59 67.18
----------------------------------------------------------------------------------------------------------------
[[Page 61393]]
For States and the private sector, our employee hourly wage
estimates have been adjusted by a factor of 100 percent. This is
necessarily a rough adjustment, both because fringe benefits and other
indirect costs vary significantly across employers, and because methods
of estimating these costs vary widely across studies. Nonetheless, we
believe that doubling the hourly wage to estimate total cost is a
reasonably accurate estimation method.
To estimate the financial burden on States related to the proposed
Medicaid Institutional Payment Transparency Reporting provisions
(discussed below), it was important to consider the Federal
government's contribution to the cost of administering the Medicaid
program. The Federal government provides funding based on a Federal
medical assistance percentage (FMAP) that is established for each
State, based on the per capita income in the State as compared to the
national average. FMAPs range from a minimum of 50 percent in States
with higher per capita incomes to a maximum of 83 percent in States
with lower per capita incomes. For Medicaid, all States receive a 50
percent FMAP for administration. States also receive higher Federal
matching rates for certain systems improvements, redesign, or
operations. Taking into account the Federal contribution to the costs
of administering the Medicaid programs for purposes of estimating State
burden with respect to collection of information, we elected to use the
higher end estimate that the States would contribute 50 percent of the
costs, even though the burden would likely be much smaller. We are
requesting comment on our estimated number of burden hours for the
proposal for each of the activities and total annual burden and cost
for each facility.
3. Proposed Information Collection Requirements (ICRs)
The following proposed changes will be submitted to OMB for their
approval when our survey instrument has been developed; we are using
feedback from this proposed rule to inform the development of the
survey instrument. The survey instrument and burden will be made
available to the public for their review under the standard non-rule
PRA process which includes the publication of 60- and 30-day Federal
Register notices. In the meantime, we are setting out our preliminary
burden figures (see below) as a means of scoring the impact of this
rule's proposed changes. The availability of the survey instrument and
more definitive burden estimates will be announced in both Federal
Register notices. The CMS ID number for that collection of information
request is CMS-10851 (OMB control number 0938-TBD). Since this would be
a new collection of information request, the OMB control number has yet
to be determined (TBD) but will be issued by OMB upon their approval of
the new collection of information request. Note that we intend that the
following proposed changes associated with Sec. Sec. 442.43(b), (c),
and (d), discussed later in this section, will be submitted to OMB for
review as a single PRA package under control number 0938-TBD (CMS-
10851).
a. State and Provider Burden Under Sec. 442.43(b) and (c)--Payment
Transparency Reporting
As discussed in section III. of this proposed rule, under our
authority at sections 1902(a)(6) and 1902(a)(30)(A) with respect to
FFS, and sections 1902(a)(4) and 1932(c) of the Act with respect to
managed care, we are proposing new reporting requirements at Sec.
442.43(b) for States to report annually on the percent of payments for
Medicaid-covered services delivered by nursing facilities and ICF/IIDs
that are spent on compensation for direct care workers and support
staff. (Our proposed definitions of who is included in direct care
workers and support staff, at proposed Sec. Sec. 442.43(a)(2) and (3),
respectively, are discussed in the preamble in section III. of this
proposed rule.) The intent of this proposed requirement is for States
to report separately, by delivery system and at the provider level, on
the percent of payments for nursing facility services that are spent on
compensation to direct care workers, the percent of payments for
nursing facility services that are spent on compensation to support
staff, the percent of payments for ICF/IID services that are spent on
compensation to direct care workers, and the percent of payments for
ICF/IID services that are spent on compensation to support staff. We
propose to add a cross-reference to the requirements in proposed Sec.
438.72 to specify that States that include nursing facility and ICF/IID
services in their contracts with managed care organizations (MCOs) or
prepaid inpatient health plans (PIHPs) would have to comply with the
requirements at Sec. 442.43(b). Where they appear, references to the
proposed requirements at Sec. 442.43(b) apply to both FFS and managed
care delivery systems.
We are considering adding to the proposed reporting requirements
additional elements for States to report on median hourly compensation
for direct care workers and median hourly compensation for support
staff, in addition to the percent of Medicaid payments going to overall
compensation for these workers. Although we may not finalize these
additional reporting requirements, we will include them in our cost
estimate to avoid underestimating the costs of this proposal. If
finalized, we expect that these additional reporting requirements would
also apply to both FFS and managed care delivery systems.
We are also considering adding at Sec. 442.43(c) a provision
requiring that States make publicly available information about the
underlying FFS payment rates themselves for nursing facility and ICF/
IID services. If the proposal was finalized, we would require that
States report a single average statewide FFS per diem rate (one
reported rate for nursing facility services and one reported rate for
ICF/IID services) as part of the reporting requirement required at
Sec. 442.43(b). Again, to avoid underestimating, we are including the
estimated cost of this potential additional requirement in our cost
estimates.
(1) State Institutional Payment Transparency Reporting Requirements and
Burden
The burden associated with the proposed reporting requirements
would affect all 51 States (including Washington DC). While not all
States cover ICF/IID services (because it is an optional Medicaid
benefit), all States must offer Medicaid nursing facility services
(because it is a mandatory Medicaid benefit). Thus, we anticipate that
all 51 States (including Washington, DC) would participate in the
reporting requirements proposed at Sec. 442.43(b). Additionally, three
territories (Guam, Puerto Rico, and the U.S. Virgin Islands) are
required to include nursing facility services in their State plans, and
thus will be included in these calculations as well.\153\ While we will
include these territories in our cost estimates, we will continue to
refer to the affected entities collectively as ``States''. We estimate
both a one-time and ongoing burden to States to implement these
requirements at the State level.
---------------------------------------------------------------------------
\153\ Note that due to waiver under section 1902(j) of the
Social Security Act, American Samoa and the Commonwealth of the
Northern Marianas Islands are not required to include nursing
facility services in their State plans and thus are not included in
these estimates. Additionally, no territory currently includes the
optional ICF/IID benefit in their State plan.
---------------------------------------------------------------------------
[[Page 61394]]
One-Time Reporting Requirements and Burden (Sec. 442.43(b)): States
Under proposed Sec. 442.43(b) and (c), we anticipate as one-time
burdens that States, through their designated State Medicaid agency,
would have to: (1) draft new policy describing the State-specific
reporting process (one-time); (2) update any related provider manuals
and other policy guidance (one-time); (3) build, design, and
operationalize an electronic system for data collection and aggregation
(one-time); (4) identify the information that would be needed to report
the State's per diem rates, if that additional proposal is finalized
(one-time); and (5) develop and conduct an initial training for
providers on the reporting requirement and State-developed reporting
system (one-time). We note that we are not proposing to require that
States update their Medicaid State plans as part of this reporting
requirement, and thus we are not estimating a burden associated with
State plan amendments.
With regard to this one-time burden for States, we estimate it
would take: 40 hours at $111.18/hr. for an administrative services
manager to draft new policy describing the State-specific reporting
process; 14 hours at $100.64/hr. for a management analyst to update any
related provider manuals and other policy guidance; an additional 1
hour at $100.64/hr. for a management analyst to identify what
information will be needed to report a FFS per diem rate for nursing
facility and ICF/IID services,\154\ if the additional reporting
requirement is finalized; 25 hours at $98.84/hr. for a computer
programmer to build, design, and operationalize an electronic system
for data collection on the percent of Medicaid payments going to
compensation and (if finalized) median hourly compensation, including
data aggregation and stratification by provider, provider type, and
worker type (direct care worker or support staff); 30 hours at $67.18/
hr. for a training and development specialist to develop and conduct
training for providers on the reporting requirement and system; 3 hours
at $118.14/hr. for a general and operations manager to review and
approve policy updates, provider agreement updates, and training
materials; and 1 hour at $236.96/hr. for a chief executive to review
and approve all operations associated with this requirement.
---------------------------------------------------------------------------
\154\ As discussed in section III. of this proposed rule, if
finalized, the proposal to report per diem rates for nursing
facility and ICF/ID services would only be applied to FFS rates. If
finalized, this proposal would not apply to States that deliver
nursing facility and ICF/IID services solely through managed care.
However, some States with managed care delivery systems still pay
for some LTSS under a FFS delivery system. For the purposes of this
estimate, we are assuming all States will be participating in this
reporting requirement, even though the requirement might apply to
fewer than 54 States upon implementation.
---------------------------------------------------------------------------
In addition to these activities outlined above, States may also
have to update managed care contracts to reflect the new reporting
requirement and provide managed care-specific guidance on the reporting
requirement. Recent data indicates that 24 States provide at least some
long-term services through managed care.\155\ For the managed care-
specific burden, we estimate 10 hours at $111.18/hr. for an
administrative services manager to draft updates to managed care
contracts. (We anticipate that all other State activities associated
with managed care plans would be reflected in the activities described
previously in this section.)
---------------------------------------------------------------------------
\155\ Data taken from Centers for Medicare & Medicaid Services,
``Managed Long Term Services and Supports (MLTSS) Enrollees,''
available at https://data.medicaid.gov/dataset/5394bcab-c748-5e4b-af07-b5bf77ed3aa3.
---------------------------------------------------------------------------
In aggregate, we estimate a one-time burden of 6,396 hours [(114
hr. x 54 States) + (10 x 24 States)]. We estimate a cost of $595,867
(54 States x [(40 hr. x $111.18) + (15 hr. x $100.64) + (25 hr. x
$98.84) + (30 hr. x $67.18) + (3 hr. x $118.14) + (1 hr. x $236.96)]),
with an additional $26,683 for managed care-related costs (24 States x
[10 hr. x $100.64]). The total cost is estimated at $622,551 ($595,867
+ $26,683). Taking into account the Federal contribution to Medicaid
administration, the estimated State share of the cost would be $311,275
($622,551 x 0.50).
Table 8--Summary of One-Time Burden for States for the Medicaid Institutional Payment Transparency Reporting Requirements at Sec. 442.43(b)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Total
Requirement Number Total Frequency response time Wage ($/ Total State
respondents responses (hr.) (hr.) hr.) cost ($) share ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Draft new policy describing the State- 54 54 Once........................ 40 2,160 111.18 240,149 120,074
specific reporting process.
Update any related provider manuals and 54 54 Once........................ 14 756 100.64 76,084 38,042
other policy guidance.
Identify information needed for per diem 54 54 Once........................ 1 54 100.64 5,435 2,717
rate reporting.
Build, design, and operationalize an 54 54 Once........................ 25 1,350 98.84 133,434 66,717
electronic system for data collection,
aggregate, and stratify reporting.
Develop and conduct training for 54 54 Once........................ 30 1,620 67.18 108,832 54,416
providers on the reporting requirement
and system.
Review and approve policy updates and 54 54 Once........................ 3 162 118.14 19,139 9,569
training materials.
Review and approve all operations 54 54 Once........................ 1 54 236.96 12,796 6,398
associated with this requirement.
Draft contract modifications for managed 24 24 Once........................ 10 240 111.18 26,683 13,342
care plans.
--------------------------------------------------------------------------------------------------------------
Total................................ Varies 402 Once........................ Varies 6,396 Varies 622,551 311,275
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ongoing Reporting Requirements and Burden (Sec. 442.43(b)): States
Under proposed Sec. 442.43(b), we estimate as ongoing burdens that
States would: (1) notify and train nursing facility and ICF/IID
providers about the annual reporting requirement, including the State-
level process for collecting data (ongoing); (2) collect information
from providers annually (ongoing); (3) aggregate or stratify data as
needed (ongoing); (4) derive percentages for compensation (ongoing);
and (5) develop a report for CMS on an annual basis (ongoing).
With regard to the ongoing burden, we estimate it would take: 8
hours at $67.18/hr. for a training and development specialist to notify
and train providers about annual reporting requirement; 2 hours at
$100.64 for a management analyst to gather the State's information
needed to include per diem
[[Page 61395]]
rates for the State's FFS nursing facility and ICF/IID services (if
finalized); 6 hours at $98.84/hr. for a computer programmer to collect
information from providers, aggregate data as needed, derive
percentages for compensation, and develop a report for the State; 2
hours at $118.14/hr. by a general and operations manager to review,
verify, and submit the report to CMS; and 1 hour at $236.96/hr. for a
chief executive to review and approve all operations associated with
this requirement.
In aggregate, we estimate an ongoing burden of 1,026 hours (19 hr.
x 54 States) at a cost of $97,470 (54 States x [(8 hr. x $67.18) + (2
hr. x $100.64) + (6 hr. x $98.84) + (2 hr. x $118.14) + (1 hr. x
$236.96)]. Taking into account the Federal contribution to Medicaid
administration, the estimated State share of this cost would be $48,735
($97,470 x 0.50) per year.
Table 9--Summary of Ongoing Burden for States for the Medicaid Institutional Payment Transparency Reporting Requirements at Sec. 442.43(b)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Total
Requirement Number Total Frequency response time Wage ($/ Total State
respondents responses (hr.) (hr.) hr.) cost ($) share ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notify and train providers about annual 54 54 Annually.................... 8 416 67.18 29,022 14,511
reporting requirement.
Gather information needed to report State 54 54 Annually.................... 2 108 100.64 10,869 5,435
FFS per diem rates.
Collect information from providers; 54 54 Annually.................... 6 312 98.84 32,024 16,012
aggregate data as required; derive an
overall percentage for compensation; and
develop report for State.
Review, verify, and submit report to CMS. 54 54 Annually.................... 2 104 118.14 12,759 6,380
Review and approve all operations 54 54 Annually.................... 1 52 236.96 12,796 6,398
associated with this requirement.
--------------------------------------------------------------------------------------------------------------
Total................................ 54 270 Annually.................... Varies 1,026 Varies 97,470 48,735
--------------------------------------------------------------------------------------------------------------------------------------------------------
(2) Nursing Facility and ICF/IID Institutional Payment Transparency
Reporting Requirements and Burden
The burden associated with this proposed rule would affect nursing
facility and ICF/IID providers in both FFS and managed care systems. We
estimate both a one-time and ongoing burden to implement the reporting
requirement proposed at Sec. 442.43(b).
To estimate the number of nursing facility and ICF/IID providers
that would be impacted by this proposed rule, we used data from the CMS
Quality Certification and Oversight Reports (QCOR) system
(qcor.cms.gov) to identify the total number of Medicaid-certified
nursing facilities and ICF/IIDs in all States (including Washington DC)
and the three territories that are required to include nursing facility
services in their State plan. Data from QCOR indicates that in FY 2022,
there were 14,194 freestanding Medicaid-certified nursing facilities
(including facilities dually certified for both Medicare and Medicaid,
and Medicaid-only facilities). Additionally, in FY 2022, there were
5,713 ICF/IIDs. In total, we estimate 19,907 Medicaid-certified nursing
facilities and ICF/IIDs that could be impacted by this proposed
reporting requirement and may need to provide data to the State on what
percentage of their Medicaid reimbursements for nursing facility and
ICF/IID services went to direct care worker and support staff
compensation.
Under proposed Sec. 442.43(b), we anticipate that nursing
facilities and ICF/IIDs would need to: (1) learn the State-specific
reporting policies and process (one-time); (2) calculate compensation
for each direct care worker and support staff if they do not already
have that information readily available (one-time); and (3) build,
design and operationalize an internal system for developing the report
for the State (one-time). We note that we do not anticipate any
additional burden on providers associated with the proposed additional
reporting requirements (to report median hourly wages and the State's
FFS per diem rates). We expect that States would be able to calculate
median hourly wages based on the information collected from providers.
We also believe the State, not, providers, would have the information
needed to report the State's FFS per diem rates for nursing facility
and ICF/IID services.
One-Time Reporting Requirements and Burden (Sec. 442.43(b)): Nursing
Facility and ICF/IID Providers
With regard to the one-time burden for providers, we estimate it
would take: 10 hours at $73.00/hr. for a compensation, benefits, and
job analysis specialist to learn the State-specific reporting policy
and calculate compensation for each direct care worker and support
staff; 10 hours at $98.84/hr. for a computer programmer to build,
design, and operationalize an internal system for developing the report
for the State; and 1 hour at $118.14/hr. for a general and operations
manager to review and approve the reporting system. In aggregate, we
estimate a one-time burden of 418,047 hours (19,907 facilities x 21
hr.) at a cost of $36,560,002 (19,907 providers x [(10 hr. x $73.00) +
(10 hr. x $98.84) + (1 hr. x $118.14)].
Table 10--Summary of One-Time Burden for Nursing Facilities and ICF/IIDs for the Medicaid Institutional Payment Transparency Reporting Requirements at
Sec. 442.43(b)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Total
Requirement Number Total Frequency response time Wage ($/ Total cost State
respondents responses (hr.) (hr.) hr.) ($) share ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Learn State-specific reporting policy; 19,907 19,907 Once....................... 10 199,070 73.00 14,532,110 n/a
calculate compensation for each direct
care worker and support staff.
Build, design, and operationalize an 19,907 19,907 Once....................... 10 199,070 98.84 19,676,079 n/a
internal system for developing the
report for the State.
Review and approve reporting system..... 19,907 19,907 Once....................... 1 19,907 118.14 2,351,813 n/a
---------------------------------------------------------------------------------------------------------------
Total............................... 19,907 59,721 Once....................... Varies 418,047 Varies 36,560,002 n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61396]]
Ongoing Reporting Requirements and Burden (Sec. 442.43(b)): Nursing
Facility and ICF/IID Providers
With regard to the ongoing burden, we anticipate nursing facilities
and ICF/IIDs would have to: (1) update compensation calculations to
account for on-going staffing changes among direct care workers and
support staff (in other words, ensure their system includes newly hired
direct care workers or support staff and takes into account staff
departures); (2) calculate the aggregated compensation of direct care
workers and support staff as a percentage of their annual Medicaid
claims (ongoing); and (3) report the information to the State annually
(ongoing).
We estimate it would take 8 hours at $73.00/hr. for a compensation,
benefits, and job analysis specialist to update compensation
calculations to account for staffing changes; 2 hours at $98.84/hr. for
a computer programmer to calculate compensation, aggregate data, and
report to the State as required; and 1 hour at $118.14/hr. for a
general and operations manager to review, approve, and submit the
report to the State. In aggregate, we estimate an on-going burden of
218,977 hours (19,907 providers x 11 hr.) at a cost of $17,912,717
(19,907 facilities x [(8 hr. x $73.00) + (2 hr. x $98.84) + (1 hr. x
$118.14)].
Table 11--Summary of Ongoing Burden for Nursing Facility and ICF/IIDs for the Medicaid Institutional Payment Transparency Reporting Requirements at Sec.
442.43(b)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Total
Requirement Number Total Frequency response time Wage ($/ Total cost State
respondents responses (hr.) (hr.) hr.) ($) share ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Account for staffing changes among 19,907 19,907 Annually................... 8 159,256 73.00 11,625,688 n/a
employees and contracted employees.
Calculate compensation, aggregate data, 19,907 19,907 Annually................... 2 39,814 98.84 3,935,216 n/a
and report to the State.
Review, approve, submit report to the 19,907 19,907 Annually................... 1 19,907 118.14 2,351,813 n/a
State.
---------------------------------------------------------------------------------------------------------------
Total............................... 19,907 59,721 Annually................... Varies 218,977 Varies 17,912,717 n/a
--------------------------------------------------------------------------------------------------------------------------------------------------------
b. State Website Posting Requirements and Burden (Sec. 442.43(d))
At Sec. 442.43(d), we propose to require States to operate a
website that meets the availability and accessibility requirements at
Sec. 435.905(b) of this chapter and that provides the results of the
newly proposed reporting requirements in Sec. 442.43(b). We also
propose at Sec. 442.43(d) that States must verify, no less than
quarterly, the accurate function of the website and the timeliness of
the information and links.
As noted above, we anticipate that this provision would affect all
51 States (including Washington, DC) and the territories required to
have nursing facility services in their State plans which we refer to
collectively as ``States.''. We estimate both a one-time and ongoing
burden to implement these requirements at the State level, which would
be the same regardless of whether the State offers nursing facility and
ICF/IID services through FFS or managed care systems. In developing our
burden estimate, we assumed that States would provide the data and
information that States are required to report under newly proposed
Sec. 442.43(d) by adding to an existing website, rather than
developing an entirely new website to meet this requirement. We note
that we are not proposing to require that States update their Medicaid
State plans as part of this reporting requirement and are not
estimating a burden associated with State plan amendments. We are also
not anticipating an additional website burden associated with the
possible additional reporting requirements (to report median hourly
wage and to report the State's FFS per diem rates) discussed previously
in this section as this information, if finalized, would be integrated
into the other website posting activities.
One Time Website Posting Requirements and Burden (Sec. 442.43(d)):
States
With regard to the one-time burden, based on the website
requirements, we estimate it would take: 10 hours at $111.18/hr. for an
administrative services manager to determine the content of the
website; 30 hours at $98.84/hr. for a computer programmer to develop
the website; 1 hour at $118.14/hr. for a general and operations manager
to review and approve the website; and 1 hour at $236.96/hr. for a
chief executive to review and approve the website. In aggregate, we
estimate a one-time burden of 2,268 hours (54 States x 42 hr.) at a
cost of $239,333 (54 States x [(10 hr. x $111.18) + (30 hr. x $98.84) +
(1 hr. x $118.14) + (1 hr. x $236.96)]. Taking into account the Federal
contribution to Medicaid administration, the estimated State share of
this cost would be $119,667 ($239,333 x 0.50) per year.
Table 12--Summary of the One-Time Burden for States for the Website Posting Requirements at Sec. 442.43(f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Total State
Requirement Number Total Frequency response time Wage ($/ Total share ($)/
respondents responses (hr.) (hr.) hr.) cost ($) year
--------------------------------------------------------------------------------------------------------------------------------------------------------
Determine content of website............. 54 54 Once........................ 10 540 111.18 60,037 30,019
Develop website.......................... 54 54 Once........................ 30 1,620 98.84 160,121 80,060
Review and approve the website at the 54 54 Once........................ 1 54 118.14 6,380 3,190
management level.
Review and approve the website at the 54 54 Once........................ 1 54 236.96 12,796 6,398
executive level.
--------------------------------------------------------------------------------------------------------------
Total................................ 54 216 Once........................ Varies 2,268 Varies 239,333 119,667
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61397]]
Ongoing Website Posting Requirements and Burden (Sec. 442.43(d)):
States
With regard to the States' ongoing burden related to the website
requirement, per quarter we estimate it would take: 2 hours at $111.18/
hr. for an administrative services manager to provide any updated data
and information for posting and to verify the accuracy of the website;
8 hours at $98.84/hr. for a computer programmer to make any needed
updates to the website; 1 hour at $118.14/hr. for a general and
operations manager to review and approve the website; and 1 hour at
$236.96/hr. for a chief executive to review and approve the website. In
aggregate, we estimate an ongoing annual burden of 2,592 hours (12 hr.
x 54 States x 4 quarters) at a cost of $295,527(54 States x 4 quarters
x [(2 hr. x $111.18) + (8 hr. x $98.84) + (1 hr. x $118.14) + (1 hr. x
$236.96)]. Taking into account the Federal contribution to Medicaid
administration, the estimated State share of this cost would be
$147,763 ($295,527 x 0.50) per year.
Table 13--Summary of the Ongoing Burden for States for the Website Posting Requirements at Sec. 442.43(f)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Time per Total
Requirement Number Total Frequency response time Wage ($/ Total State
respondents responses (hr.) (hr.) hr.) cost ($) share ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Provide updated data and information for 54 216 Quarterly................... 2 432 111.18 48,030 24,015
posting and verify the accuracy of the
website.
Update website........................... 54 216 Quarterly................... 8 1,728 98.84 170,796 85,398
Review and approve website at the 54 216 Quarterly................... 1 216 118.14 25,518 12,759
management level.
Review and approve website at the 54 216 Quarterly................... 1 216 236.96 51,183 25,592
executive level.
--------------------------------------------------------------------------------------------------------------
Total................................ 54 864 Quarterly................... Varies 2,592 Varies 295,527 147,763
--------------------------------------------------------------------------------------------------------------------------------------------------------
4. Burden Estimate Summary
Table 14--Summary of Annual Burden Estimates
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total Hourly Total
Regulation section(s)/ICR provision Number of Number of Time per response (hrs) time labor rate Total labor State beneficiary
respondents responses (hr.) ($/hr.) cost ($) share ($) cost ($)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 442.43(b) One-Time Burden to Varies 402 Varies................. 6,396 Varies 622,251 311,275 0
States (Table 8) (Payment
Transparency Reporting).
Sec. 442.43(b) Ongoing Burden to 54 270 Varies................. 1,026 Varies 97,470 48,735 0
States (Table 9) (Payment
Transparency Reporting--Annual).
Sec. 442.43(b) One-Time Burden to 19,907 59,721 Varies................. 418,047 Varies 36,560,002 n/a 0
Providers (Table 10) (Payment
Transparency Reporting).
Sec. 442.43(b) Ongoing Burden to 19,907 59,721 Varies................. 218,977 Varies 17,912,717 n/a 0
Providers (Table 11) (Payment
Transparency Reporting--Annual).
Sec. 442.43(f) One-Time Burden to 54 216 Varies................. 2,268 Varies 239,333 119,667 0
States (Table 12) (Website Posting).
Sec. 442.43(f) Ongoing Burden to 54 864 Varies................. 2,592 Varies 295,527 147,763 0
States (Table 13) (Website Posting--
Quarterly).
------------------------------------------------------------------------------------------------------------------
Total............................ Varies 121,194 Varies................. 649,306 Varies 55,727,300 627,440 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
Comments must be received on/by October 31, 2023.
V. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, when we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
VI. Regulatory Impact Analysis
A. Statement of Need
1. Minimum Nurse Staffing
With respect to the requirements for minimum nurse staffing in LTC
facilities, sections 1819 and 1919 of the Act, authorize the Secretary
to issue requirements for participation in Medicare and Medicaid,
including such regulations as may be necessary to protect the health
and safety of residents (sections 1819(d)(4)(B) and 1919(d)(4)(B) of
the Act). Such regulations are codified in the implementing regulations
at 42 CFR part 483, subpart B.
Approximately 1.4 million Americans are residents in LTC facilities
with Medicare and Medicaid serving as the payor for most
residents.\156\ As we have discussed in detail in sections II. and III.
of this proposed rule, a large body of quantitative and qualitative
research suggests that adequate nurse staffing is vital for ensuring
residents' health and safety. More specifically, there is a positive
association between the number of hours of care that a resident
receives each day and resident health and safety.157 158 159
Research also suggests that there is a relationship between inadequate
staffing and nursing staff burnout, which can lead to high
[[Page 61398]]
employee turnover.\160\ High employee turnover, in turn, can lead to
lower continuity of resident care.
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\156\ https://data.cms.gov/summary-statistics-on-use-and-payments/medicare-service-type-reports/cms-program-statistics-medicare-skilled-nursing-facility.
\157\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing
Facility Staffing Shortages During the COVID-19 Pandemic. Apr 04,
2022. Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\158\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\159\ Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the US Nursing
Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-165.
doi: 10.1016/j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
\160\ Kelly LA, Gee PM, Butler RJ. Impact of nurse burnout on
organizational and position turnover. Nurs Outlook. 2021 Jan-
Feb;69(1):96-102. doi: 10.1016/j.outlook.2020.06.008. Epub 2020 Oct
4. PMID: 33023759; PMCID: PMC7532952.
---------------------------------------------------------------------------
During our regular interactions with State Medicaid agencies,
provider groups, and beneficiary advocates, we have observed that all
these interested parties routinely express the concern that chronic
understaffing in LTC facilities is making it difficult for residents to
receive high quality care. Low quality care also has a negative impact
on Medicare and Medicaid leading to higher spending due to more
hospitalizations and unplanned Emergency Department
visits.161 162 163 As we have noted throughout this rule,
the available evidence suggests that a wide range of requirements for
LTC facility staff could increase the quality of care in LTC
facilities. We also recognized, however, that staffing in the long-term
care sector is still recovering from the COVID-19 pandemic that saw a
large number of employees leave the sector, leading to concerns about
resident access to care. In response to these concerns, and after
evaluating a wide range of research and stakeholder feedback, we
developed a proposed 24/7 on-site RN requirement and minimum RN and NA
HPRD requirements that aim to increase resident safety and quality of
care while preserving resident access to care.
---------------------------------------------------------------------------
\161\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing
Facility Staffing Shortages During the COVID-19 Pandemic. Apr 04,
2022. Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\162\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\163\ Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the US Nursing
Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-165.
doi: 10.1016/j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
---------------------------------------------------------------------------
Specifically, we are proposing that LTC facilities provide RN
coverage onsite 24 hours per day, 7 days a week (24/7 RN). In addition,
we are proposing that they provide a minimum of 0.55 RN and 2.45 NA
hours of care per resident day (HPRD). We note that, as discussed in
section II above, while the 0.55 and 2.45 HPRD standards were developed
using case-mix adjusted data sources, the standards themselves will be
implemented and enforced independent of a facility's case-mix. In other
words, facilities must meet the 0.55 RN and 2.45 NA HPRD standards,
regardless of the individual facility's patient case-mix. Requiring 24/
7 RN and a minimum number of hours of RN and NA hours of care for each
resident will help protect resident health and safety by ensuring that
all facilities provide a minimal level of staff care to address
residents' health and safety needs. These standards reflect only the
minimum level of staffing required and all LTC facilities must provide
adequate staffing to meet their specific population's needs based on
their facility assessments.
2. Medicaid Institutional Payment Transparency Reporting
Millions of Americans, including children and adults of all ages,
receive Medicaid-covered long-term services and supports (LTSS) because
of disabling conditions, chronic illness, and other factors. Medicaid
is the largest payer nationally of LTSS. In 2019, 1.5 million Medicaid
beneficiaries received nursing facility or intermediate care facility
for individuals with intellectual disability (ICF/IID) services,\164\
which accounted for over $61 billion in Medicaid expenditures, or 13
percent of the $478 billion in total Medicaid expenditures for that
year.\165\
---------------------------------------------------------------------------
\164\ Kim, Min-Young, Edward Weizenegger, and Andrea Wysocki.
Medicaid Beneficiaries Who Use Long-Term Services and Supports:
2019. Chicago, IL: Mathematica, July 22, 2022. Accessed at https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltss-user-brief-2019.pdf. Disclaimer: This document contains links
to non-United States Government websites. We are providing these
links because they contain additional information relevant to the
topic(s) discussed in this document or that otherwise may be useful
to the reader. We cannot attest to the accuracy of information
provided on the cited third-party websites or any other linked
third-party site after the date when we accessed them. We are
providing these links for reference only; linking to a non-United
States Government website does not constitute an endorsement by CMS,
HHS, or any of their employees of any products presented on the
website. Also, please be aware that the privacy protections
generally provided by United States Government websites do not apply
to third-party sites.
\165\ Murray, Caitlin, Alena Tourtellotte, Debra Lipson, and
Andrea Wysocki. Medicaid Long Term Services and Supports Annual
Expenditures Report: Federal Fiscal Year 2019. Chicago, IL:
Mathematica, December 9, 2021. Accessed at https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltssexpenditures2019.pdf.
---------------------------------------------------------------------------
Through our regular interactions with State Medicaid agencies,
provider groups, and beneficiary advocates, we have observed that all
these interested parties routinely express the concern that
understaffing in facilities and high rates of worker turnover of direct
care workers make it difficult to have the sufficient workforce of
well-trained and qualified staff needed to help ensure access to high-
quality institutional services for people with disabilities and older
adults. Further, demand for direct care workers is expected to continue
rising due to the growing needs of the aging
population.166 167
---------------------------------------------------------------------------
\166\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\167\ Centers for Medicare & Medicaid Services. November 2020.
Long-Term Services and Supports Rebalancing Toolkit. Accessed at
https://www.medicaid.gov/medicaid/long-term-services-supports/downloads/ltss-rebalancing-toolkit.pdf.
---------------------------------------------------------------------------
As discussed in sections II. and III. of this proposed rule,
anecdotal, quantitative, and qualitative evidence indicates that
consistent, adequate direct care nurse staffing is vital to residents'
health and safety. Worker turnover or understaffing also can reduce the
efficiency of Medicaid payment for services, most clearly when the
payment methodology is based on the actual cost of delivering services
and such costs are increased due to reliance on overtime and temporary
staff, which can have higher hourly costs than non-overtime wages paid
to permanent staff. Further, understaffing can reduce quality of care,
which can lead to poorer outcomes for people in institutional settings
and result in costly emergency department visits and
hospitalizations.168 169 170 Accordingly, understaffing can
reduce the cost-effectiveness of Medicaid institutional services.
---------------------------------------------------------------------------
\168\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing
Facility Staffing Shortages During the COVID-19 Pandemic. Apr 04,
2022. Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\169\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\170\ Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the US Nursing
Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-165.
doi: 10.1016/j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
---------------------------------------------------------------------------
In response to these concerns about the institutional workforce, we
are proposing new Federal reporting requirements that are intended to
promote public transparency around States' statutory obligation under
section 1902(a)(30)(A) of the Act and around the quality requirements
in section 1932(c) of the Act for services furnished through managed
care
[[Page 61399]]
organizations (MCOs) (as well as for prepaid inpatient health plans
(PIHPs). We do so under our authority at section 1902(a)(4)), to make
Medicaid payments that are sufficient to enlist enough providers so
that high-quality LTSS are available to the beneficiaries who want and
require such care. We are also relying on our authority under section
1902(a)(6) of the Act, which requires State Medicaid agencies to make
such reports, in such form and containing such information, as the
Secretary may from time to time require, and to comply with such
provisions as the Secretary may from time to time find necessary to
assure the correctness and verification of such reports.
Specifically, we are proposing to require that State Medicaid
agencies report annually, at the facility level and by delivery system
(if applicable), on the portion of payments to nursing facility and
ICF/IID services that are spent on compensation for the direct care and
support staff workforce.\171\ We are also proposing that States make
this information available to the public by posting the information on
a website. We are focusing on this compensation proposal because many
direct care workers and support staff earn low wages and receive
limited benefits.\172\ Evidence suggests that there is a connection
between wages and high rates of turnover among some workers in the
institutional workforce.\173\ In order to develop relevant policies to
support high quality care for Medicaid beneficiaries, we first need
clear, consistent data from States and facilities about the current
percent of Medicaid payments going to the compensation of direct care
workers and support staff. Data regarding the percent of Medicaid
payments going to compensation of direct care workers and support staff
is not currently being reported to CMS.
---------------------------------------------------------------------------
\171\ Throughout this discussion, we use the term ``States'' to
include all States, Washington, DC, and any territories that include
nursing facility services or ICF/IID services in their State plan.
\172\ Campbell, S., A. Del Rio Drake, R. Espinoza, K. Scales.
2021. Caring for the future: The power and potential of America's
direct care workforce. Bronx, NY: PHI http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\173\ Sharma, H. and Liu, X. Association between wages and
nursing staff turnover in Iowa. Innov Aging. 2022; 6(4): igac004.
Published online 2022 Feb 5. doi: 10.1093/geroni/igac004.
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B. Overall Impacts
We have examined the impacts of this proposed rule as required by
Executive Order 12866 on Regulatory Planning and Review (September 30,
1993), Executive Order 13563 on Improving Regulation and Regulatory
Review (January 18, 2011), the Regulatory Flexibility Act (RFA,
September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act,
section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA, March
22, 1995; Pub. L. 104-4), and Executive Order 13132 on Federalism
(August 4, 1999).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 14094 entitled ``Modernizing Regulatory Review'' (hereinafter,
the Modernizing E.O.) amends section 3(f)(1) of Executive Order 12866
(Regulatory Planning and Review). The amended section 3(f) of Executive
Order 12866 defines a ``significant regulatory action'' as an action
that is likely to result in a rule: (1) having an annual effect on the
economy of $200 million or more in any 1 year (adjusted every 3 years
by the Administrator of OIRA for changes in gross domestic product), or
adversely affect in a material way the economy, a sector of the
economy, productivity, competition, jobs, the environment, public
health or safety, or State, local, territorial, or tribal governments
or communities; (2) creating a serious inconsistency or otherwise
interfering with an action taken or planned by another agency; (3)
materially altering the budgetary impacts of entitlement grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) raising legal or policy issues for which centralized
review would meaningfully further the President's priorities or the
principles set forth in this Executive order, as specifically
authorized in a timely manner by the Administrator of OIRA in each
case.
A regulatory impact analysis (RIA) must be prepared for regulatory
actions with significant effects as per section 3(f)(1) ($200 million
or more in any 1 year). Accordingly, we have prepared a Regulatory
Impact Analysis that to the best of our ability presents the costs and
benefits of the rulemaking.
For this proposed rule, we have calculated the annual cost of the
proposed minimum staffing requirements in Table 20 hours based on hours
per resident day in CY 2021 dollars, assuming the implementation and
enforcement of these requirements as being applied independent of a
facility's case-mix. We estimate that the aggregate impact of the
staffing-related provisions proposed in this rule, which includes a
phased-in implementation of a requirement for 24 hours per day, 7 days
per week RN onsite coverage, as well as the 0.55 RN and 2.45 NA minimum
HPRD requirements, will result in an estimated cost of approximately
$32 million in year 1, $246 million in year 2, $4.06 billion in year 3,
with costs increasing to $5.7 billion by year 10. We estimate the total
cost over 10 years will be $40.6 billion with an average annual cost of
$4.06 billion.
Additionally, we have estimated in Table 30 the economic impact of
the proposed requirement that States report, by facility and by
delivery system (if applicable), on the percentage of Medicaid payments
being spent on compensation for direct care workers and support staff
delivering Medicaid-covered nursing facility and ICF/IID services. We
are proposing that these requirements would become effective 4 years
after finalization. We estimate an initial implementation cost of
$9,355,472 for years 1 to 4 (resulting in total initial implementation
costs of $37,421,886) and ongoing annual costs of $18,305,713 per year
starting in year 5.
C. Detailed Economic Analysis
1. Impacts for LTC Minimum Staff Requirement
a. Nursing Services (Sec. 483.35)
We are proposing to make two changes to the existing requirements
for Nursing Services for LTC facilities at Sec. 483.35. We are
proposing to require facilities to provide RN coverage onsite 24 hours
per day, 7 days a week and to meet a minimum staffing standard of 0.55
RN and 2.45 NA HPRD. We note that these estimates do not include the
exemption criteria, which could reduce the rule's cost (including cost
associated with potential LTC facility closure or reduction in patient
load capacity per facility) and benefits, based on the use of
exemptions.
(1) RN On Site 24 Hours a Day, 7 Days a Week (24/7 RN)
To estimate the cost to the industry for the RN on site 24 hours a
day, 7 days a week (24/7 RN) requirement we first summed the current
annual RN salary cost for each facility. We then subtracted this amount
from the estimated annual RN salary cost that the facility will incur
to meet the new requirement.
To measure the current RN staff cost to the industry, we estimated
the total number of RNs currently employed in LTC facilities and their
loaded
[[Page 61400]]
respective labor wages using data from the 2022 Nursing Home Staffing
Study, which has information on 14,688 LTC facilities. This study uses
the 2021 SNF--Medicare Cost Report data set to find the total
facilities, the total number of reported LTC specific RNs and their
loaded annual salaries, defined as salary and fringe benefits. Using
this dataset, we were able to estimate the aggregate RN loaded salary
costs and the cost per facility.
To estimate the RN cost per resident census, we used the October
2021 Care Compare data set that calculates average hours per resident
day (HPRD) for RNs using the PBJ System data from 2021 Q2. Hours per
resident day is defined as the average hours of RN care that each
resident in the facility receives per day. For example, a facility that
has an average HPRD of 0.5 for RNs would provide, on average, 0.5 hours
(30 minutes) of RN care for each resident. We linked this dataset using
the facility unique ID variable with the 2021 SNF--Medicare Cost Report
data set to create a complete dataset. Using this combined dataset, we
were also able to view the impact by resident census as well as the
impact by LTC facility characteristics such as facility ownership, bed
size, Five-Star Quality Rating System staffing ratings, payer mix, and
location. This complete dataset helped provide an understanding of
which types of LTC facilities would bear the largest cost burden of a
new Federal 24/7 RN requirement.
For each facility, we first calculated the total number of hours
each day that an RN is on site by multiplying the average RN hours per
resident day by the average number of residents in the facility (daily
hours of RN care = RN HPRD x Residents in Facility). We then estimated
the number of additional hours of RN care that facility would need to
meet the 24/7 RN requirement by subtracting the current daily hours of
RN care from 24 hours (additional daily RN hours needed = 24 - current
daily hours of RN care). We then calculated the total number of
additional RN hours needed per year by multiplying this amount by 365
(additional yearly RN hours needed = additional daily RN hours needed x
365). Finally, we estimated each facility's yearly cost for meeting the
requirement by multiplying the total number of the yearly hours needed
by the loaded hourly wage (yearly 24/7 RN cost = additional yearly RN
hours needed x facility RN wage rate).
For example, if a facility had an average of 0.4 RN HPRD and had 50
residents it would provide 20 hours of total RN hours per day (0.4 HPRD
x 50 residents = 20 total RN hours per day). To meet the 24/7 RN
requirement, this facility would have to increase its total RN hours
per day by 4 hours (24 hours needed - 20 hours current RN care = 4
hours needed) and 1,460 hours (4 hours per day x 365 days/year)
annually. Using the loaded hourly wage cost of $44 per hour, this
facility would spend $64,240 per year ($44 x 4 RN hours per day x 365
day per year = $64,240) to be in compliance with the 24/7 RN
requirement.
After estimating each facility's cost for meeting the 24/7 RN
requirement, the next step was to sum the additional cost for all LTC
facilities to meet the 24/7 RN requirement for an aggregate cost to the
industry of $349 million per year. We also found approximately 78
percent of LTC facilities had 24/7 RN coverage within a 90-day window
based on PBJ System data from 2021 Q2 showing that they provided at
least 24 hours of RN care per day. We assumed this estimate for all
quarters, for an annual estimate of approximately 22 percent (100
percent - 78 percent = 22 percent) or 3,261 LTC facilities (0.222 x
14,688 LTC facilities = 3,261 LTC facilities) that would need to
increase their RN staffing to comply with the 24/7 RN requirement.
Among this 22 percent of facilities needing to increase RN staffing,
there was an average of 0.43 hours of RN care per resident day.
Table 15 summarizes the average annual cost for LTC facilities to
meet the 24/7 RN Staffing Requirement over a 10-year period, which
includes any associated collection of information costs as described in
section IV. In estimating the cost, we take into account expected
growth in wages that will result from greater demand for RNs in LTC
facilities to meet this proposed 24/7 RN requirement, as well as the
0.55 RN hours per resident day requirement that we discuss in more
detail later in the analysis. All costs are reflected in 2021 US
dollars.
There is uncertainty about how much RN wages will change over the
next 10 years due to changes in demand for RNs emerging due to both
this proposed rule, as well as broader patterns of healthcare use in
the United States. A 2009 study \174\ examined minimum licensed nurse
(RN/LPN) staffing standards in California for acute care hospitals that
went into effect in March 2004. The authors found that compared to
metropolitan areas outside of California that did not have the
regulation, RN wage growth in California increased 12.8 percent more
between 2000 and 2006. A more recent study \175\ found that real nurse
wage rates increased by nearly 10 percent between 2001 and 2017, with
changes in rates varying during years of U.S. economic growth and
recession. During its strongest growth between 2001 and 2004, real
wages increased at an average rate of 2.41 percent annually. Given the
uncertainty in growth and increased demands for RNs, we assumed that
real wages each year would increase at 2.31 percent.
---------------------------------------------------------------------------
\174\ Mark B, Harless DW, and Spetz J. Spetz. California's
Minimum-Nurse Staffing Legislation and Nurses' Wages Health Affairs.
2009;28 Supplement 1, w326-w334. doi: 10.1377/hlthaff.28.2.w326.
\175\ Barry J. Real wage growth in the U.S. health workforce and
the narrowing of the gender pay gap. Human Resources for Health.
2021;19: 105. doi: 10.1186/s12960-021-00647-3.
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We provide separate cost estimates for facilities in rural and
urban areas since facilities in rural areas would have to meet the
requirement 3 years after the final rule publication. Facilities in
urban areas, in contrast, would need to meet the requirement 2 years
after the final rule publication. This resulted in an average annual
cost of approximately $347 million in 2021 US dollars without
considering exemptions.
Table 15--Annual Cost for 24/7 RN Requirement
----------------------------------------------------------------------------------------------------------------
Collection of
information costs 24/7 RN 24/7 RN
Year for 24/7 RN (Sec. requirement requirement Total cost
483.35 nursing (urban (rural
services) facilities) facilities)
----------------------------------------------------------------------------------------------------------------
1................................ $7,461,504.00 $0.00 $0.00 $7,461,504.00
2................................ 7,633,864.74 213,764,107.41 0.00 221,397,972.15
3................................ 7,810,207.02 218,702,058.29 146,603,030.04 373,115,295.34
[[Page 61401]]
4................................ 7,990,622.80 223,754,075.83 149,989,560.03 381,734,258.67
5................................ 8,175,206.19 228,922,794.98 153,454,318.87 390,552,320.04
6................................ 8,364,053.45 234,210,911.55 156,999,113.64 399,574,078.64
7................................ 8,557,263.08 239,621,183.61 160,625,793.16 408,804,239.85
8................................ 8,754,935.86 245,156,432.95 164,336,248.98 418,247,617.79
9................................ 8,957,174.88 250,819,546.55 168,132,416.34 427,909,137.76
10............................... 9,164,085.62 256,613,478.07 172,016,275.15 437,793,838.85
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10 Year Total Cost........... 82,868,918 2,111,564,589 1,272,156,756 3,466,590,263.09
----------------------------------------------------------------------------------------------------------------
We are soliciting comments on our assumptions, particularly our
assumption that real wage rates for RNs will increase at annual rate of
2.31 percent, and burden estimates. We are also soliciting comments on
how the available supply of RNs and potential changes in this supply
and demand across different geographical areas over the next 10 years
may influence the rule's cost for LTC facilities and other health care
providers competing for the same supply of RNs.
(2) RN On Site 24 Hours a Day, 7 Days a Week (24/7 RN)--State Level
Analysis
To provide a more in-depth understanding of the financial and
staffing effects of the 24/7 RN proposed requirement, we examined its
impact for different groups of LTC facilities in each State, as well as
Washington DC and Puerto Rico. We first assessed how many full-time RNs
LTC facilities would need to hire to meet the proposed requirement. In
this analysis, we defined a full-time employee as an employee who
worked 1,950 hours per year. This definition was based on a full-time
employee working 5 days per week, 8 hours per day, with a 30-minute
break (37.5 hours/week x 52 weeks/year). To meet the 24/7 RN
requirement, each facility would need to provide a minimum of 8,760
hours (24 hours/day x 365 days) of RN care annually since we did not
include any facility exemptions in these calculations. All calculations
used the October 2021 Care Compare data set that provides each LTC
facility's average daily resident census and HPRD for RNs using the PBJ
System data from 2021 Q2.
For each facility, we first calculated the total number of full-
time RNs in the facility using the following formula: (facility
specific RN HPRD x average daily resident census x 365)/1,950. For
example, if a facility had 100 residents and provided an average of 0.2
RN HPRD, then during the year, it will provide a total of 7,300 hours
of RN care (0.2 RN HPRD x 100 residents x 365 days = 7,300 hours)
yearly and have 3.74 full-time RNs. We then calculated the number of
additional full-time RNs needed by subtracting the total hours of RN
care that the facility currently provides yearly from the 8,760 hours
needed to ensure 24/7 RN coverage and dividing by 1,950, which is the
number of hours of yearly care provided by a full-time RN. Continuing
with our example in this section, the LTC facility would need to
provide 1,460 additional RN hours per year (8,760 hours-7,300 hours =
1,460 hours) and hire 0.75 additional full-time RNs.
Table 16 shows the total number of RNs currently employed by LTC
facilities in each State's urban and rural areas, the number of full-
time RNs and NAs that LTC facilities would need to hire, and the
percent increase in RNs that LTC facilities in each State would need to
meet the proposed minimum staffing standard barring any exemptions.
Oklahoma would need the largest increase in RNs in percentage terms for
rural facilities, needing to increase the size of its RN workforce by
27 percent. Meanwhile, for urban facilities, the largest percentage
increase in RNs would be in Louisiana at 17.6 percent. Facilities in
Texas would need to hire the most overall RNs with the State needing
653 additional full-time RNs. Across the United States, however, the
number of RNs that facilities would need to meet the requirement varies
widely with several States, including Florida and Illinois, needing to
increase the size of their LTC facilities' RN labor force by less than
1 percent.
Table 16--Current and Additional Full-Time RNs Needed per State To Meet the 24/7 RN Requirement
[Absent an exemption]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent Percent
Existing full- Additional RNs increase in Existing full- Additional RNs increase in
State time RNs in needed in RNs needed in time RNs in needed in RNs needed in
rural areas rural areas rural areas urban areas urban areas urban areas
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 721 6 0.8 1,416 12 0.8
Alaska.................................................. 108 2 1.9 108 0 0.0
Arizona................................................. 60 1 1.7 1,247 12 1.0
Arkansas................................................ 487 50 10.3 559 64 11.5
California.............................................. 150 20 13.3 9,461 280 3.0
Colorado................................................ 374 17 4.5 2,026 0 0.0
Connecticut............................................. 118 1 0.8 2,145 2 0.1
Delaware................................................ 0 0 .............. 648 1 0.2
District of Columbia.................................... 0 0 .............. 468 0 0.0
Florida................................................. 286 8 2.8 8,208 21 0.3
Georgia................................................. 732 66 9.0 1,469 58 3.9
Hawaii.................................................. 177 1 0.6 743 0 0.0
Idaho................................................... 163 8 4.9 437 5 1.1
Illinois................................................ 1,049 68 6.5 5,965 55 0.9
Indiana................................................. 1,147 46 4.0 2,611 74 2.8
[[Page 61402]]
Iowa.................................................... 1,458 99 6.8 1,254 37 3.0
Kansas.................................................. 862 71 8.2 1,054 38 3.6
Kentucky................................................ 1,212 8 0.7 1,249 9 0.7
Louisiana............................................... 262 49 18.7 762 134 17.6
Maine................................................... 403 8 2.0 576 4 0.7
Maryland................................................ 125 0 0.0 2,939 9 0.3
Massachusetts........................................... 12 0 0.0 3,973 29 0.7
Michigan................................................ 1,299 12 0.9 3,050 32 1.0
Minnesota............................................... 1,218 19 1.6 2,968 14 0.5
Mississippi............................................. 982 21 2.1 509 16 3.1
Missouri................................................ 823 114 13.9 1,707 114 6.7
Montana................................................. 356 15 4.2 163 6 3.7
Nebraska................................................ 630 58 9.2 743 4 0.5
Nevada.................................................. 61 4 6.6 667 0 0.0
New Hampshire........................................... 349 1 0.3 388 7 1.8
New Jersey.............................................. 0 0 .............. 4,756 22 0.5
New Mexico.............................................. 256 8 3.1 324 4 1.2
New York................................................ 827 5 0.6 10,277 21 0.2
North Carolina.......................................... 800 19 2.4 2,381 46 1.9
North Dakota............................................ 386 9 2.3 313 0 0.0
Ohio.................................................... 1,681 74 4.4 5,169 142 2.7
Oklahoma................................................ 437 118 27.0 568 83 14.6
Oregon.................................................. 158 5 3.2 762 29 3.8
Pennsylvania............................................ 1,026 1 0.1 7,575 9 0.1
Puerto Rico............................................. 0 0 .............. 29 0 0.0
Rhode Island............................................ 0 0 .............. 947 0 0.0
South Carolina.......................................... 279 8 2.9 1,325 26 2.0
South Dakota............................................ 488 19 3.9 240 4 1.7
Tennessee............................................... 683 28 4.1 1,693 25 1.5
Texas................................................... 1,138 250 22.0 4,451 403 9.1
Utah.................................................... 122 2 1.6 926 8 0.9
Vermont................................................. 250 4 1.6 72 1 1.4
Virginia................................................ 574 6 1.0 1,951 22 1.1
Washington.............................................. 193 3 1.6 1,967 5 0.3
West Virginia........................................... 399 10 2.5 682 2 0.3
Wisconsin............................................... 1,142 11 1.0 2,214 20 0.9
Wyoming................................................. 245 5 2.0 85 0 0.0
-----------------------------------------------------------------------------------------------
United States....................................... 26,708 1,358 5.1 108,220 1,909 1.8
--------------------------------------------------------------------------------------------------------------------------------------------------------
We then assessed the financial cost for facilities to implement the
proposed 24/7 RN requirement. To estimate the yearly cost per State, we
used the formulas described in section VI.C.1.a.(1) of this proposed
rule to first estimate each facility's yearly cost to meet the
requirement. We also assumed that LTC facilities exceeding the minimum
requirements for RNs would not reduce RNs to the minimum required level
or lay off other staff to reduce costs. We then calculated the average
cost per resident day by summing the total cost of meeting the
requirement for all facilities in the State and dividing it by the
total number of resident days for all facilities needing additional
RNs. We estimated the average cost per resident day only for facilities
needing staff to provide a more complete picture of the burden that the
rule would impose on these facilities.
Table 17 provides the yearly Statewide cost to implement the
requirement, as well as the average cost per resident day for
facilities in rural and urban areas that would need to hire additional
RN to meet the requirement. Delaware would have the highest cost per
resident day with a single facility that is not meeting the 24/7 RN
requirement and would need to spend $87.45 per resident day. The
highest overall cost occurs in Texas where facilities would need to
collectively spend more than $84 million to meet the minimum staffing
requirement. The cost also varied across urban and rural areas. In New
Hampshire, LTC facilities in urban areas that need staff would need to
spend an average of $8.95 per resident day to meet the requirement,
while in Hawaii, Puerto Rico, and Wyoming these facilities would incur
no cost. Nevada would have the highest average cost for rural LTC
facilities at $21.81 per resident day.
Table 17--LTC Facilities in Each State Needing RNs and the Average Cost per Resident Day by Rural and Urban Location To Satisfy 24/7 RN Requirement
[Absent an exemption]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average cost Average cost Average cost
Yearly per resident Urban LTC per resident Rural LTC per resident
State statewide cost day facilities day (urban facilities day (rural
($ million) (statewide) needing RNs areas) needing RNs areas)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 1.1 $3.25 12 $3.86 6 $2.14
Alaska.................................................. 0.2 20.75 0 0.00 2 20.75
Arizona................................................. 1.1 5.09 12 5.80 1 0.28
[[Page 61403]]
Arkansas................................................ 8.8 3.62 64 3.00 50 4.59
California.............................................. 44.5 7.96 280 7.81 20 10.42
Colorado................................................ 1.8 9.13 0 0.00 17 9.13
Connecticut............................................. 0.2 6.24 2 1.22 1 19.09
Delaware................................................ 0.3 87.45 1 87.45 0 0.00
District of Columbia.................................... 0.0 0.00 0 0.00 .............. ..............
Florida................................................. 2.4 5.04 21 4.92 8 5.31
Georgia................................................. 13.0 4.91 58 4.54 66 5.27
Hawaii.................................................. 0.1 10.08 0 0.00 1 10.08
Idaho................................................... 0.9 6.34 5 8.38 8 5.04
Illinois................................................ 14.4 6.95 55 6.15 68 7.86
Indiana................................................. 10.9 5.87 74 5.16 46 7.48
Iowa.................................................... 10.0 6.18 37 5.37 99 6.51
Kansas.................................................. 9.0 7.14 38 6.72 71 7.41
Kentucky................................................ 1.2 4.63 9 3.01 8 7.12
Louisiana............................................... 23.1 4.43 134 4.16 49 5.34
Maine................................................... 0.8 6.55 4 5.55 8 7.19
Maryland................................................ 0.6 6.20 9 6.20 0 0.00
Massachusetts........................................... 3.1 7.23 29 7.23 0 0.00
Michigan................................................ 4.2 5.38 32 5.89 12 3.69
Minnesota............................................... 1.6 5.05 14 5.91 19 4.39
Mississippi............................................. 2.3 3.68 16 3.81 21 3.57
Missouri................................................ 23.5 5.83 114 5.29 114 6.46
Montana................................................. 1.7 6.16 6 4.62 15 6.96
Nebraska................................................ 5.6 8.28 4 5.50 58 8.47
Nevada.................................................. 0.7 21.81 0 0.00 4 21.81
New Hampshire........................................... 0.8 8.54 7 8.95 1 6.61
New Jersey.............................................. 1.7 4.41 22 4.41 0 0.00
New Mexico.............................................. 0.8 5.00 4 4.57 8 5.34
New York................................................ 2.7 5.57 21 5.35 5 6.75
North Carolina.......................................... 5.6 4.63 46 5.15 19 3.51
North Dakota............................................ 0.7 6.94 0 0.00 9 6.94
Ohio.................................................... 17.9 4.94 142 4.83 74 5.23
Oklahoma................................................ 26.2 7.77 83 6.85 118 8.54
Oregon.................................................. 3.7 8.78 29 8.43 5 11.97
Pennsylvania............................................ 0.7 5.75 9 7.44 1 1.65
Puerto Rico............................................. 0.0 0.00 0 0.00 0 0.00
South Carolina.......................................... 2.8 4.77 26 4.73 8 4.93
South Dakota............................................ 1.6 5.62 4 7.36 19 5.23
Tennessee............................................... 4.2 4.13 25 4.32 28 3.94
Texas................................................... 84.6 6.28 403 5.48 250 7.95
Utah.................................................... 0.7 4.98 8 5.79 2 1.83
Vermont................................................. 0.3 5.42 1 0.65 4 5.97
Virginia................................................ 2.1 3.92 22 3.87 6 4.12
Washington.............................................. 0.8 6.76 5 7.00 3 6.41
West Virginia........................................... 1.1 6.52 2 5.81 10 6.62
Wisconsin............................................... 2.6 7.30 20 7.42 11 7.10
Wyoming................................................. 0.4 8.60 0 0.00 5 8.60
-----------------------------------------------------------------------------------------------
United States....................................... 349.0 5.97 1,909 5.55 1,358 6.71
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 18 shows the average cost per resident day to implement the
requirement for facilities in each State that would need additional
RNs, dividing facilities based on their size into three groups: less
than 50 beds, 50 to 100 beds, and more than 100 beds. Within each group
of LTC facilities, the cost varied widely by number of beds and State.
In West Virginia, the average cost per resident day for facilities that
have more than 100 beds and need additional RNs would be $0.72, while
in North Carolina, the average cost per resident day for facilities
with fewer than 50 beds would be $29.19.
Table 18--Number of LTC Facilities In Each State Needing To Hire RNs And Average Cost per Resident Day by Facility Size To Satisfy 24/7 RN Requirement
[Absent an exemption]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average cost
LTC facilities Yearly per resident Cost-50 to 100
State needing RNs statewide cost day Cost-<50 beds beds Cost >100 beds
($ million) (statewide)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 18 $1.10 $3.25 $0.94 $3.59 $2.09
Alaska.................................................. 2 0.20 20.75 20.75 0.00 0.00
Arizona................................................. 13 1.10 5.09 11.17 5.02 4.23
Arkansas................................................ 114 8.80 3.62 0.00 4.63 2.75
California.............................................. 300 44.50 7.96 17.35 6.39 3.33
[[Page 61404]]
Colorado................................................ 17 1.80 9.13 15.46 5.82 5.67
Connecticut............................................. 3 0.20 6.24 14.21 0.00 0.52
District of Columbia.................................... 0 0.00 0.00 0.00 0.00 0.00
Delaware................................................ 1 0.30 87.45 0.00 87.45 0.00
Florida................................................. 29 2.40 5.04 11.73 4.14 2.25
Georgia................................................. 124 13.00 4.91 13.29 5.37 3.42
Hawaii.................................................. 1 0.10 10.08 10.08 0.00 0.00
Idaho................................................... 13 0.90 6.34 7.54 4.57 6.57
Illinois................................................ 123 14.40 6.95 13.93 8.19 4.02
Indiana................................................. 120 10.90 5.87 12.74 5.69 2.33
Iowa.................................................... 136 10.00 6.18 7.92 4.85 2.24
Kansas.................................................. 109 9.00 7.14 8.26 5.75 2.62
Kentucky................................................ 17 1.20 4.63 3.37 5.41 0.16
Louisiana............................................... 183 23.10 4.43 10.25 7.00 3.85
Maine................................................... 12 0.80 6.55 6.55 6.56 0.00
Maryland................................................ 9 0.60 6.20 6.96 2.13 0.00
Massachusetts........................................... 29 3.10 7.23 12.58 7.42 2.06
Michigan................................................ 44 4.20 5.38 11.66 4.50 2.81
Minnesota............................................... 33 1.60 5.05 5.61 3.97 0.00
Mississippi............................................. 37 2.30 3.68 9.72 3.25 1.50
Missouri................................................ 228 23.50 5.83 11.26 7.32 3.61
Montana................................................. 21 1.70 6.16 12.26 3.78 8.19
Nebraska................................................ 62 5.60 8.28 10.60 6.54 4.94
Nevada.................................................. 4 0.70 21.81 24.40 17.35 0.00
New Hampshire........................................... 8 0.80 8.54 12.34 6.50 4.07
New Jersey.............................................. 22 1.70 4.41 16.27 2.60 2.06
New Mexico.............................................. 12 0.80 5.00 7.70 4.13 5.28
New York................................................ 26 2.70 5.57 6.83 7.70 1.77
North Carolina.......................................... 65 5.60 4.63 29.19 3.66 1.52
North Dakota............................................ 9 0.70 6.94 6.42 11.09 0.00
Ohio.................................................... 216 17.90 4.94 9.75 4.33 3.71
Oklahoma................................................ 201 26.20 7.77 18.00 9.45 5.09
Oregon.................................................. 34 3.70 8.78 12.43 7.35 9.33
Pennsylvania............................................ 10 0.70 5.75 9.19 3.19 1.65
Puerto Rico............................................. 0 0.00 0.00 0.00 0.00 0.00
South Carolina.......................................... 34 2.80 4.77 10.48 4.78 1.76
South Dakota............................................ 23 1.60 5.62 7.27 2.54 0.00
Tennessee............................................... 53 4.20 4.13 12.27 4.54 2.01
Texas................................................... 653 84.60 6.28 10.93 8.11 5.01
Utah.................................................... 10 0.70 4.98 3.58 6.01 0.00
Vermont................................................. 5 0.30 5.42 9.82 2.01 0.00
Virginia................................................ 28 2.10 3.92 12.31 3.44 0.73
Washington.............................................. 8 0.80 6.76 14.04 6.41 1.42
West Virginia........................................... 12 1.10 6.52 13.74 3.98 0.72
Wisconsin............................................... 31 2.60 7.30 13.32 5.52 9.19
Wyoming................................................. 5 0.40 8.60 17.49 2.22 0.00
-----------------------------------------------------------------------------------------------
United States....................................... 1,850 349.0 5.97 11.17 6.25 4.07
--------------------------------------------------------------------------------------------------------------------------------------------------------
In Table 19, we calculated the average cost by State for facilities
needing staff to meet the minimum staffing requirement based on whether
the facility accepted patients with Medicare, Medicaid, or both
Medicare and Medicaid. The highest per resident day cost would be for
14 Medicaid-only facilities in Illinois that would need to spend an
average of $29 per resident day to meet the staffing requirement. The
lowest per resident day cost for facilities needing staff would be for
a single Medicaid-only facility in South Dakota that would need to
spend $0.33 per resident day to meet the requirement.
Table 19--Number of LTC Facilities in State Needing To Hire Staff and Average Cost per Resident Day by Medicare, Medicaid, and Dual Acceptance Status To
Satisfy 24/7 RN Requirement
[Absent exemption]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Medicare and
Medicaid only Medicaid only Medicare only Medicare only Medicare and Medicaid
State facilities facilities facilities facilities Medicaid facilities
needing RNs cost per needing RNs cost per facilities cost per
resident day resident day needing RNs resident day
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 2 $5.10 1 $0.94 15 $3.14
Alaska.................................................. 0 0.00 0 0.00 2 20.75
Arizona................................................. 0 0.00 2 34.70 10 3.75
Arkansas................................................ 1 3.76 0 0.00 111 3.61
California.............................................. 11 9.11 13 20.26 273 7.54
Colorado................................................ 3 23.37 0 0.00 13 6.41
[[Page 61405]]
Connecticut............................................. 0 0.00 0 0.00 3 6.24
Delaware................................................ 0 0.00 1 87.45 0 0.00
District of Columbia.................................... 0 0.00 0 0.00 0 0.00
Florida................................................. 0 0.00 2 10.71 24 3.81
Georgia................................................. 1 26.52 2 34.37 121 4.75
Hawaii.................................................. 0 0.00 0 0.00 1 10.08
Idaho................................................... 0 0.00 1 1.86 12 6.68
Illinois................................................ 10 5.35 0 0.00 113 7.10
Indiana................................................. 4 7.88 2 20.15 112 5.50
Iowa.................................................... 2 5.26 1 12.90 129 6.09
Kansas.................................................. 19 10.72 0 0.00 89 6.52
Kentucky................................................ 0 0.00 1 0.68 15 4.78
Louisiana............................................... 0 0.00 6 6.74 170 4.48
Maine................................................... 0 0.00 0 0.00 10 5.38
Maryland................................................ 0 0.00 4 7.68 4 5.23
Massachusetts........................................... 0 0.00 2 10.03 25 6.58
Michigan................................................ 1 14.48 0 0.00 42 5.42
Minnesota............................................... 3 8.26 0 0.00 28 4.75
Mississippi............................................. 5 4.45 1 23.67 31 3.31
Missouri................................................ 6 11.30 2 3.08 219 5.68
Montana................................................. 0 0.00 0 0.00 21 6.16
Nebraska................................................ 5 13.34 0 0.00 53 7.28
Nevada.................................................. 0 0.00 0 0.00 4 21.81
New Hampshire........................................... 0 0.00 0 0.00 8 8.54
New Jersey.............................................. 0 0.00 2 5.28 19 4.38
New Mexico.............................................. 1 5.96 0 0.00 11 4.95
New York................................................ 0 0.00 0 0.00 26 5.57
North Carolina.......................................... 0 0.00 8 70.04 56 3.24
North Dakota............................................ 0 0.00 0 0.00 9 6.94
Ohio.................................................... 0 0.00 4 12.33 208 4.81
Oklahoma................................................ 5 18.96 1 0.01 191 7.58
Oregon.................................................. 3 4.27 2 23.40 29 8.89
Pennsylvania............................................ 0 0.00 2 21.85 8 3.66
Puerto Rico............................................. 0 0.00 0 0.00 0 0.00
Rhode Island............................................ 0 0.00 0 0.00 0 0.00
South Carolina.......................................... 0 0.00 10 12.96 23 3.43
South Dakota............................................ 4 5.18 0 0.00 19 5.70
Tennessee............................................... 4 14.91 2 4.78 47 3.51
Texas................................................... 14 9.00 11 9.40 620 6.18
Utah.................................................... 2 3.04 1 8.08 7 5.34
Vermont................................................. 0 0.00 0 0.00 5 5.42
Virginia................................................ 4 7.68 3 2.82 20 2.88
Washington.............................................. 0 0.00 0 0.00 8 6.76
West Virginia........................................... 3 19.82 0 0.00 7 5.00
Wisconsin............................................... 1 26.97 2 12.89 27 6.73
Wyoming................................................. 0 0.00 0 0.00 5 8.60
-----------------------------------------------------------------------------------------------
United States....................................... 114 9.22 89 13.44 3,003 5.72
--------------------------------------------------------------------------------------------------------------------------------------------------------
(3) Minimum Nurse Staffing Requirement of at Least 0.55 RN and 2.45 NA
HPRD
To estimate the incremental impact of the minimum nurse staffing
requirement of 0.55 RN and 2.45 NA HPRD, we first estimated the
industry's aggregate annual cost for nurse staff (RNs, LPNs/LVNS, and
NAs) at current staffing levels. We then estimated the aggregate annual
cost for nurse staff (RNs, LPNs/LVNs, and NAs) for all facilities to
meet the minimum requirement. As discussed above, we note that the
minimum staffing requirements are applied independent of a facility's
individual case-mix, meaning the expected costs to a facility are based
solely on the cost of facilities adding additional staff to meet the
0.55 RN and 2.45 NA HPRD based on the facility's current staffing data,
regardless of the facility's case-mix. Finally, we calculated the
requirement's expected cost to the industry by subtracting the
industry's current nurse staff cost from the estimated nurse staff cost
for all facilities to meet the minimum requirement (Nurse Staff Cost
for All Facilities to Meet Minimum Requirement--All Facilities' Current
Nurse Staff Cost). To measure the current nurse staffing cost to the
industry, we estimated the total number of nurse staff currently
employed in LTC facilities and their loaded respective labor wages.
This study used the 2021 SNF--Medicare Cost Report dataset to find the
total of facilities, the total number of reported LTC specific nurse-
type staff and their loaded annual salaries, defined as salary and
fringe benefits. Using this dataset, we were able to estimate the
aggregate total nurse staffing salary costs and the cost per facility.
To estimate the nurse staffing cost by staff type, that is, RNs,
LPNs/LVNs, NAs, per resident census we used the October 2021 Care
Compare data set that calculates average hours per resident day (HPRD)
for each nurse type using the PBJ System data from 2021 Q2. Hours per
resident day was defined as the average hours of care that each
resident in the facility receives from that nurse type. For example, a
facility that
[[Page 61406]]
had an average HPRD of 0.5 for RNs would provide, on average, 0.5 hours
(30 minutes) of RN care for each resident. We linked this dataset using
the facility unique ID variable with the 2021 SNF--Medicare Cost Report
data set to create a complete dataset. Using this combined dataset, we
were also able to view the impact by staff type per resident census as
well as the impact by LTC facility characteristics such as facility
ownership, bed size, Five-Star Quality Rating System staffing ratings,
payer mix, and location. This complete dataset helped provide an
understanding of which types of LTC facilities would bear the largest
cost burden of a new Federal minimum staffing requirement.
Using the above dataset, we estimated each facility's current total
annual salary costs for each nurse type (RN, LPN/LVN, NA) as follows:
[facility specific nurse type] loaded hourly wage x [facility specific
nurse type] reported HPRD x facility-level average daily facility
resident census x 365. For example, if a facility reported an average
loaded hourly wage of $44 for its RNs, an average of 0.4 RN HPRD, and
an average daily resident census of 100, its estimated annual salary
costs for RNs would be calculated as: $44 x 0.4 x 100 x 365 = $642,400.
Taking this example further, if this same facility reported a loaded
average hourly wage of $21 for its NAs, an average of 2.1 NA HPRD, and
an average daily resident census of 100, its estimated annual salary
costs for NAs would be calculated as: $21 x 2.1 x 100 x 365 =
$1,609,650. If this facility only employed RNs and NAs as part of its
total nurse staff, then the facility's current total nurse staff cost
would be $2,252,050 ($642,400 + $1,609,650 = $2,252,050). To estimate
the aggregate current nurse staff cost across all facilities, the next
step was to sum all facilities' current total (RN, LPN/LVN, and NA)
nurse staff cost for an overall industry nurse staff cost of $43.4
billion.\176\ To estimate the cost of the minimum nurse staffing
requirement, we subtracted the total current nurse staff cost per
facility from the total nurse staff cost per facility with the minimum
nurse staffing standard. The formula applied to calculate each
facility's cost of meeting the requirement per specific nurse type was:
[facility specific nurse type] hourly wage x [[facility specific nurse
type] required HPRD - [facility specific nurse type] reported HPRD] x
facility level average daily resident census x 365. Using the same LTC
facility example from the paragraph above where the facility had an
average of 0.4 RN HPRD and 2.1 NA HPRD, for this LTC facility to comply
it would need to increase its RN HPRD from 0.4 to 0.55 and NA HPRD from
2.1 to 2.45. The cost for this requirement on this facility would thus
be $509,175 (($44 x (0.55-0.4) x 100 x 365) + ($21 x (2.45-2.1) x 100 x
365) = $509,175).
---------------------------------------------------------------------------
\176\ Calculated as the sum of reported salary costs for total
nurse staff across all LTC facilities in the study sample. More
specifically, Total annual salary costs for all LTC facilities =
[Sgr]\14,668\i=1 Annual salary costs for total nurse staffi.
---------------------------------------------------------------------------
When LTC facilities hire RNs to meet the 24/7 RN requirement, the
hours these RNs work will also count toward the 0.55 RN HPRD
requirement. To avoid overestimating the number of RNs that LTC
facilities will need to hire and the cost to hire them, if a LTC
facility has less than 0.55 RN HPRD, we subtracted any cost that the
facility would incur to meet the 24/7 RN requirement up to the point
where the LTC facility will meet the 0.55 RN HPRD requirement using the
following formula: [facility specific cost to meet 0.55 RN and 2.45 NA
HPRD Requirement]-[Facility Cost to Meet 24/7 RN Requirement].
Once we apply this formula to each facility in our dataset, we
summed each facility's total cost to obtain the requirement cost to the
industry of approximately $4.23 billion.
This $4.23 billion estimate assumed that LTC facilities would
respond to the minimum nurse staffing requirement by increasing their
RN and their NA staffing levels to the minimum necessary levels,
without reducing other staff, such as administrative staff. We also
assumed that LTC facilities would not obtain exemptions from the
minimum staffing requirement. Finally, we assumed LTC facilities that
were above the minimum staffing requirements for RNs and NAs would not
decrease their current staffing levels and that owners of LTC chain
facilities would not shift staff from facilities above the minimum
proposed requirement to facilities below the minimum proposed
requirement.\177\
---------------------------------------------------------------------------
\177\ Appropriate accounting of costs depends on consistency
with the benefits to which they are compared. The overall change in
staffing cost (increasing nursing staff cost, net of housekeeping,
food service and activities-staff costs--which are potentially
decreasing) would appropriately be compared with a benefits estimate
that also reflects net staffing changes; a quantitative approach to
such benefits might extrapolate from reduced-form estimates of the
effects on patients of other jurisdictions' nursing staffing
requirements. By contrast, if benefits assessment reflects an
explicit or implicit assumption that new nursing staff spend all
their time on nursing activities--not newly covering any of the
duties that would have been performed by lost housekeeping, food
service or activities staff--then costs from a society-wide
perspective are approximated by the (gross) new nursing staffing
costs. In other words, in the latter case, a focus only on payroll
effects would omit the harms to consumer satisfaction and conditions
for remaining staff due to reductions in housekeeping, food service
and activities.
---------------------------------------------------------------------------
If LTC facilities covered under this proposed rule reduced other
staff not covered by the rule, owners of LTC chain facilities shifted
RN and NAs to other facilities below the requirements, or if LTC
facilities obtained exemptions from the minimum staffing requirements
the $4.23 billion estimate may decline significantly. Any reduction in
other staff, however, could also impose costs on residents due to
reductions in support activities, such as housekeeping and food
service, that contribute to quality of life in the LTC facility. As
such, we seek comments on all the assumptions used in these cost
models.
Table 20 summarizes the estimated total cost for the comprehensive
minimum nurse staffing requirement which includes any associated
collection of information costs as described in section IV. Collection
of Information Requirements, but not the regulatory review costs which
we discuss in more detail later in this section. To account for real
growth in RN and NA wages over time, we used the same assumption that
we used to estimate the cost of the 24/7 RN requirement. More
specifically, we assumed that real wages for RNs and NAs needed to meet
the proposed 0.55 RN and 2.45 HPRD requirement, as well as collection
of information costs, would increase at 2.31 percent annually. Since
rural and urban LTC facilities have different phase-in periods to meet
the 24/7 RN (2 years for facilities in urban areas and 3 years for
facilities in rural areas) and the 0.55 RN and 2.45 NA HPRD
requirements (3 years for facilities in urban areas and 5 years for
facilities in rural areas) we provided separate cost estimates for
facilities located in each area. Over a 10-year period, we anticipate
an average annual cost of approximately $4.06 billion.
[[Page 61407]]
Table 20--Annual Cost for the Comprehensive Minimum Nurse Staffing Requirement
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Collection of
Collection of information costs 24/7 RN 24/7 RN 0.55 RN and 2.45 0.55 RN and 2.45
information costs for facility requirement requirement NA HPRD NA HPRD
Year for 24/7 RN (Sec. assessment (Sec. (urban (rural requirement requirement Total cost
483.35 nursing 483.71 facility facilities) facilities) (urban (rural
services) assessment) facilities) facilities)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................................... $7,461,504.00 $24,176,448.00 $0.00 $0.00 $0 $0 $31,637,952
2.......................................................... 7,633,864.74 24,734,923.95 213,764,107.41 0.00 0 0 246,132,896
3.......................................................... 7,810,207.02 25,306,300.69 218,702,058.29 146,603,030.04 3,662,915,945 0 4,061,337,541
4.......................................................... 7,990,622.80 25,890,876.24 223,754,075.83 149,989,560.03 3,747,529,303 0 4,155,154,438
5.......................................................... 8,175,206.19 26,488,955.48 228,922,794.98 153,454,318.87 3,834,097,230 803,377,179 5,054,515,685
6.......................................................... 8,364,053.45 27,100,850.35 234,210,911.55 156,999,113.64 3,922,664,876 821,935,192 5,171,274,997
7.......................................................... 8,557,263.08 27,726,879.99 239,621,183.61 160,625,793.16 4,013,278,435 840,921,895 5,290,731,450
8.......................................................... 8,754,935.86 28,367,370.92 245,156,432.95 164,336,248.98 4,105,985,167 860,347,191 5,412,947,346
9.......................................................... 8,957,174.88 29,022,657.19 250,819,546.55 168,132,416.34 4,200,833,424 880,221,211 5,537,986,430
10......................................................... 9,164,085.62 29,693,080.57 256,613,478.07 172,016,275.15 4,297,872,676 900,554,321 5,665,913,916
------------------------------------------------------------------------------------------------------------------------------------
10 Year Total Cost..................................... 82,868,918 268,508,343 2,111,564,589 1,272,156,756 31,785,177,057 5,107,356,989 40,627,632,652
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
This proposed rule does not include any provisions requiring
Medicare, Medicaid or other non-Medicare/Medicaid payors to increase
payment rates to providers to meet any or all the expected costs of the
proposed requirements. Below, however, we provide estimates of how much
of this estimated cost would be due to residents whose care is covered
by three payor groups: Medicaid, Medicare, and other non-Medicare/
Medicaid payors.
Table 21 provides annual estimates and a 10-year total estimate for
the share of facilities' increased staffing costs that would be due to
residents utilizing Medicaid. These estimates excluded all collection
of information costs. Over a 10-year period, the average annual cost
for facilities' due to residents whose stay is paid for by Medicaid
would be approximately $2.69 billion. If Medicaid were to fully cover
these costs (although there is no expectation that it will), then
States would pay $1.1 billion and the Federal government would pay
$1.57 billion.
To build these estimates, we used a scenario where facilities'
increased cost to meet the new minimum staffing and 24/7 RN requirement
for residents utilizing Medicaid was equal to share of residents in the
facility using Medicaid. More formally, we first calculated each
facility's increased cost for these residents using the following
formula: Increased Facility Cost for Medicaid Residents = (minimum
staffing requirement cost + 24/7 RN staffing requirement cost) x (%
facility residents covered by Medicaid). We then summed all facilities'
share of increased costs that was due to residents utilizing Medicaid
to the obtain a total estimated cost of $26.9 billion over 10 years.
To provide further details about the facilities' share of the total
minimum staffing and 24/7 RN requirements' cost that is due to resident
utilizing Medicaid, we broke down the Medicaid costs into how the costs
would typically be divided between the Federal and State Medicaid
programs. For these estimates, we assumed that the Federal Medicaid
share would be equal to the State's FMAP (Federal Medical Assistance
Percentage), while each State's share would be equal to the remaining
amount (1-FMAP). Using this strategy, we estimated that States' portion
of the Medicaid cost would be approximately $11.1 billion over 10
years, while the Federal government's portion of the Medicaid cost
would be $15.7 billion.
Table 22 provides annual estimates and a 10-year estimate for the
share of facilities' increased labor costs that would be due to
residents whose care was covered by Medicare and other non-Medicare/
Medicaid payors. These estimates continue to exclude all collection of
information costs. Over a 10-year period, facilities' annual cost to
meet the proposed requirements would be approximately $454 million for
residents utilizing Medicare and $886 million for residents utilizing
other non-Medicare/Medicaid payors.
To obtain these estimates, we used a scenario where the cost
facilities would incur to meet the new minimum staffing and 24/7 RN
requirements for residents utilizing Medicare and other non-Medicare/
Medicaid payors would be equal to the share of residents covered by
Medicare and non-Medicare/Medicaid payors in each facility.
To obtain the total cost due to residents utilizing Medicare, we
first calculated each facility's increased staffing cost for residents
utilizing Medicare using the following formula: Increased Facility Cost
for Medicare Residents = (minimum staffing requirement cost + 24/7 RN
staffing requirement cost) x (% facility residents covered by
Medicare). We then summed all facilities' increased costs that was due
to residents utilizing Medicare to the obtain a total estimated cost
for Medicare of $4.54 billion over 10 years. To obtain the total cost
due to residents utilizing other non-Medicare/Medicaid payors, we first
calculated each facility's increased cost for residents using a non-
Medicare/Medicaid payor using the following formula: Increased Facility
Cost for Non-Medicare/Medicaid Payors = (minimum staffing requirement
cost + 24/7 RN staffing requirement cost) x (% facility residents
covered by non-Medicare/Medicaid Payors). We then summed all
facilities' increased costs that were due to residents utilizing other
Non-Medicare/Medicaid payors to obtain a total estimated cost of $8.86
billion over 10 years.
[[Page 61408]]
[GRAPHIC] [TIFF OMITTED] TP06SE23.001
[[Page 61409]]
[GRAPHIC] [TIFF OMITTED] TP06SE23.002
As previously stated, this rule does not include any provisions
requiring Medicare to increase payment rates to providers to meet any
or all the expected costs of the proposed requirements. With specific
regards to
[[Page 61410]]
the SNF PPS, we do not believe this rule will have meaningful impacts
on SNF PPS payment rates. Under section 1888(e)(4) of the Act, the SNF
PPS uses per diem Federal payment rates based on mean SNF costs in a
base year (FY 1995) updated for inflation to the first effective period
of the PPS. Section 1888(e)(5)(A) of the Act requires us to establish a
SNF market basket that reflects changes over time in the prices of an
appropriate mix of goods and services included in covered SNF services.
The SNF market basket is used to compute the market basket percentage
increase that is used to update the SNF Federal rates on an annual
basis, as required by section 1888(e)(4)(ii)(IV) of the Act. While this
rule may have minimal impacts on the calculation of the SNF market
basket percentage, which could impact annual updates to the SNF PPS
rates, we believe that these impacts would be limited.
Additionally, under section 1888(e)(4)(G)(i) of the Act, the
Federal rate also incorporates an adjustment to account for facility
case-mix, using a classification system that accounts for the relative
resource utilization of different patient types. The statute specifies
that the adjustment is to reflect both a resident classification system
that the Secretary establishes to account for the relative resource use
of different patient types, as well as resident assessment data and
other data that the Secretary considers appropriate. While we
understand that increased staffing will have an impact on facility
costs, we do not believe that these additional costs fall within the
scope of relative resource utilization of different patient types.
Since this rule impacts the facility as a whole, rather than individual
patient types, we do not believe that the rule would impact adjustments
made under the SNF PPS to account for facility case-mix.
Finally, section 1888(e)(4)(G)(ii) of the Act requires that we
adjust the Federal rates to account for differences in area wage
levels, using a wage index that the Secretary determines appropriate.
Since the inception of the SNF PPS, we have used hospital inpatient
wage data in developing a wage index to be applied to SNFs. As noted
most recently in the FY 2024 SNF PPS final rule (88 FR 53211), we
continue to use this practice in FY 2024. Given that the wage index
used under the SNF PPS is based on analysis of hospital wages and
staffing hours and because this rule will impact only on SNF wages and
staffing hours, we do not anticipate that the impacts of this rule will
be reflected in the SNF PPS wage index. We understand that, as
discussed in the FY 2024 SNF PPS final rule (88 FR 53212), there have
been comments encouraging CMS to develop a wage index adjustment under
the SNF PPS that uses SNF wages and staffing hours as the basis for
calculating the adjustment. However, as we state in that rule,
We note that section 315 of the Medicare, Medicaid, and SCHIP
Benefits Improvement and Protection Act of 2000 (BIPA) (Pub. L. 106-
554, enacted December 21, 2000) gave the Secretary the discretion to
establish a geographic reclassification procedure specific to SNFs,
but only after collecting the data necessary to establish a SNF PPS
wage index that is based on wage data from nursing homes. To date,
this has proven to be unfeasible due to the volatility of existing
SNF wage data and the significant amount of resources that would be
required to improve the quality of the data. More specifically,
auditing all SNF cost reports, similar to the process used to audit
inpatient hospital cost reports for purposes of the IPPS wage index,
would place a burden on providers in terms of recordkeeping and
completion of the cost report worksheet. Adopting such an approach
would require a significant commitment of resources by CMS and the
Medicare Administrative Contractors (MACs), potentially far in
excess of those required under the IPPS, given that there are nearly
five times as many SNFs as there are inpatient hospitals. While we
continue to believe that the development of such an audit process
could improve SNF cost reports, which is determined to be adequately
accurate for cost development purposes, in such a manner as to
permit us to establish a SNF-specific wage index, we do not believe
this undertaking is feasible. (88 FR 53212).
We solicit comment on these assumptions regarding the impact of
this rule on the rates paid under the SNF PPS.
Sources of uncertainty about the cost estimate for the 24/7 RN and
0.55 RN and 2.45 NA HPRD requirement include:
The cost estimate assumed that LTC facilities needing RNs and/or
NAs to meet these requirements will hire them without laying off other
direct care or support staff. Some research,178 179 however,
has found that when States implemented minimum hour per day
requirements for direct care staff (RNs, LPNs, and NAs), LTC facilities
responded by reducing indirect care staff, such as housekeeping, food
service, and activities staff. If LTC facilities responded to the 24/7
RN and 0.55 and 2.45 NA requirement in similar ways, then a facility's
total cost for the requirements could decline significantly relative to
what was presented above (see earlier discussion about appropriate
accounting of costs depending on consistency between benefit and cost
analytic approaches).
---------------------------------------------------------------------------
\178\ Thomas, Kali S., Kathryn Hyer, Ross Andel, and Robert
Weech-Maldonado. The Unintended Consequences of Staffing Mandates in
Florida Nursing Homes: Impacts on Indirect-Care Staff, 2010,
Medicare Care Research and Review, Volume 67, Issue 5, Page 555-573.
\179\ Bowblis, John R., and Kathryn Hyer. Nursing Home Staffing
Requirements and Input Substitution: Effects on Housekeeping, Food
Service, and Activities Staff, 2013, Health Services Reseach, Volume
48, Issue 4, Pages: 1539-1550.
---------------------------------------------------------------------------
The cost estimate assumed that real wages for RNs and NAs would
grow at an annual rate of 2.31 percent due to increasing demand for
these direct care staff. Differences in demand for RNs and NAs across
geographical areas, however, could lead to wages in different areas to
increase at different rates, altering the cost for LTC facilities.
The 24/7 cost estimate assumed that RNs would make the average
hourly rate for RNs in the facility. If, however, LTC facilities needed
to hire RNs to work overnight shifts, which typically command a higher
hourly rate, the costs for LTC facilities to meet this requirement
could increase.
The cost estimate assumed that no LTC facilities would obtain
exemptions from the 0.55 RN and 2.45 NA HPRD requirements, although
some facilities could obtain an exemption. Our analysis suggests that
using the criteria of being located in an area with a medium staffing
shortage, which is defined as the area having an RN and/or NA to
population ratio that is 20 percent below the national average, or
being located 20-miles from the nearest LTC facility, up to 24 percent
of LTC facilities would meet the initial criteria for an exemption from
the 2.45 NA HPRD requirement while 28 percent would be eligible for an
exemption from the 0.55 RN HPRD requirement. Depending on the number of
facilities that obtained an exemption and their expected cost to meet
the HPRD requirement, the total cost of the rule for LTC facilities
could decline significantly.
In addition to uncertainty about the magnitude of costs, there is
uncertainty about whether LTC facilities or other entities in society
would bear the cost of meeting the minimum staffing and 24/7 RN
requirements. Payors might increase payment rates to meet some or all
the rule's cost, which could reduce the cost for LTC facilities
relative to what is estimated above.
We welcome any comments regarding the methodology that resulted in
an estimated cost of approximately $40.63 billion over a 10-year period
for the Comprehensive Minimum Nurse Staffing Requirement and on the
potential State and Federal Medicaid impact, as well as the potential
impact
[[Page 61411]]
on Medicare and other non-Medicare/Medicaid payors. We are also
soliciting comments on all the assumptions we used in our estimate,
especially how the available supply of RNs and NAs in different areas
nationwide may influence the proposed rule's cost for LTC facilities
and other health care providers competing for the same supply of RNs
and NAs. Finally, we are seeking comments on how LTC chain ownership
may lead to a shifting of employees across facilities from those
facilities that are exceeding the proposed minimum staffing
requirements to those that are below it.
(4) Impact of 0.55 RN and 2.45 NA HPRD Requirement on States
To provide a more in-depth understanding of the financial and
staffing effects of the 0.55 RN HPRD and 2.45 NA HPRD proposed minimum
requirement, we examined its impact for different groups of LTC
facilities in each State, as well as Washington, DC and Puerto Rico. We
first assessed how many full-time employees LTC facilities would need
to hire to meet the proposed requirement. In this analysis, we defined
a full-time employee as an employee who worked 1,950 hours per year.
This definition was based on a full-time employee working 5 days per
week, 8 hours per day, with a 30-minute break (37.5 hours/week x 52
weeks/year). We continued to assume that no facilities would obtain
exemptions from the minimum staffing requirement. We also continued to
subtract any cost that facilities incur or employees they would need to
hire to meet the 24/7 RN requirements up to 0.55 RN HPRD. All
calculations used the October 2021 Care Compare data set that provided
each LTC facility's average daily resident census and HPRD for RNs,
LPNs/LVNs and NAs using the PBJ System data from 2021 Q2.
For each facility, we first calculated the total number of full-
time RNs, LPN/LVNs, and NAs working in a facility using the following
formula: (facility specific care type HPRD x Average daily resident
census x 365)/1,950. For example, if a facility has 10 residents and
provides an average of 0.1 RN HPRD, then during the year, it will
provide a total of 365 hours of RN care (0.1 RN HPRD x 10 residents x
365 days) yearly and have 0.187 full-time RNs. We then calculated the
number of additional RNs needed by subtracting the current average
hours per resident day for RNs from the minimum required hours per
resident day. Continuing with our example in this section, the LTC
facility would need to provide 1,642.5 additional RN hours per year
([0.55 RN HPRD-0.1 HPRD] x 10 residents x 365 days = 1642.5 hours) and
hire 0.84 additional full-time RNs.
To calculate the total number of additional NAs needed we
subtracted the current average hours per resident day for NAs from the
minimum required hours per resident day. For example, if the same
facility as previously mentioned with 10 residents provided an average
of 2.2 NA HPRD, then to meet the 2.45 HPRD requirement it would need to
provide 912.5 additional NA hours per year ([2.45 NA HPRD-2.2 NA HPRD]
x 10 residents x 365 days = 912.5 hours) and hire 0.47 (912.5 hours
needed/1,950 hours yearly per full-time employee) full-time NAs.
Table 23 shows the total number of RNs and NAs employed by LTC
facilities in each State's urban areas, the number of full-time RNs and
NAs that LTC facilities would need to hire, and the percent increase in
RNs and NAs that LTC facilities in each State would need to meet the
proposed minimum staffing standard. Table 24 provides the same
information for LTC facilities located in each State's rural areas.
Louisiana would need the largest increase in RNs in percentage
terms. The number of full-time RNs in urban LTC facilities would need
to increase by nearly 96 percent, while rural LTCs would need to
increase the number of RNs by more than 73 percent to meet minimum
standard. Facilities in Texas would need to hire the most overall RNs
with the State needing 1,615 additional full-time RNs in urban areas
and more than 311 RNs in rural areas. Across the United States,
however, the number of RNs that facilities would need to hire varies
widely, with several States, including Delaware and Hawaii, not needing
to hire any RNs to meet the requirement.
Illinois would need the largest percentage increase for NAs in
urban areas. The State would need to add nearly 6,000 full-time NAs and
increase the overall number of NAs working in LTC facilities by more
than 42 percent. Similar to RNs, however, there would be wide variation
in the percentage increase in NAs across States. Florida, for example,
would need to increase the size of its NA labor force in LTC facilities
by less than 2 percent to meet the requirement.
Table 23--Current and Additional Full-Time RNs and NAs Needed per State To Meet 0.55 RN and 2.45 NA HPRD Staffing Requirement for Urban LTC Facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Percent Percent
State Existing full- Additional RNs increase in Existing full- Additional NAs increase in
time RNs needed RNs needed time NAs needed NAs needed
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 1,416 129 9.1 5,011 922 18.4
Alaska.................................................. 108 0 0 216 3 1.2
Arizona................................................. 1,247 101 8.1 4,036 651 16.1
Arkansas................................................ 559 220 39.3 3,775 199 5.3
California.............................................. 9,461 1,390 14.7 40,659 1,734 4.3
Colorado................................................ 2,026 9 0.5 4,687 718 15.3
Connecticut............................................. 2,145 122 5.7 6,735 1,136 16.9
Delaware................................................ 648 0 0 1,376 259 18.8
District of Columbia.................................... 468 0 0 923 45 4.9
Florida................................................. 8,208 390 4.8 29,310 414 1.4
Georgia................................................. 1,469 443 30.1 6,446 1,996 31
Hawaii.................................................. 743 0 0 1,289 28 2.2
Idaho................................................... 437 1 0.2 1,176 105 8.9
Illinois................................................ 5,965 551 9.2 13,944 5,985 42.9
Indiana................................................. 2,611 261 10 8,917 2,087 23.4
Iowa.................................................... 1,254 28 2.2 4,010 367 9.2
Kansas.................................................. 1,054 51 4.8 3,652 369 10.1
Kentucky................................................ 1,249 100 8 3,997 787 19.7
Louisiana............................................... 762 730 95.9 6,306 1,225 19.4
Maine................................................... 576 3 0.5 1,499 36 2.4
Maryland................................................ 2,939 47 1.6 7,572 1,588 21
Massachusetts........................................... 3,973 191 4.8 12,156 2,184 18
Michigan................................................ 3,050 235 7.7 8,862 2,268 25.6
[[Page 61412]]
Minnesota............................................... 2,968 3 0.1 6,267 573 9.1
Mississippi............................................. 509 68 13.3 1,955 319 16.3
Missouri................................................ 1,707 442 25.9 7,786 1,504 19.3
Montana................................................. 163 4 2.2 487 88 18.1
Nebraska................................................ 743 17 2.3 2,313 139 6
Nevada.................................................. 667 45 6.7 1,796 328 18.3
New Hampshire........................................... 388 13 3.4 1,256 168 13.3
New Jersey.............................................. 4,756 335 7 13,412 2,856 21.3
New Mexico.............................................. 324 27 8.2 1,184 194 16.4
New York................................................ 10,277 745 7.2 32,047 5,904 18.4
North Carolina.......................................... 2,381 376 15.8 9,175 1,774 19.3
North Dakota............................................ 313 1 0.4 1,176 12 1
Ohio.................................................... 5,169 521 10.1 16,844 4,552 27
Oklahoma................................................ 568 203 35.7 3,725 333 8.9
Oregon.................................................. 762 17 2.3 3,170 14 0.4
Pennsylvania............................................ 7,575 242 3.2 20,086 4,917 24.5
Puerto Rico............................................. 29 0 0 0 26 ..............
Rhode Island............................................ 947 14 1.5 2,752 284 10.3
South Carolina.......................................... 1,325 163 12.3 4,793 794 16.6
South Dakota............................................ 240 0 0 618 88 14.2
Tennessee............................................... 1,693 230 13.6 6,047 1,495 24.7
Texas................................................... 4,451 1,615 36.3 21,663 6,101 28.2
Utah.................................................... 926 2 0.2 2,012 197 9.8
Vermont................................................. 72 4 5 239 24 10.1
Virginia................................................ 1,951 344 17.6 6,838 2,148 31.4
Washington.............................................. 1,967 22 1.1 5,257 311 5.9
West Virginia........................................... 682 22 3.2 1,987 431 21.7
Wisconsin............................................... 2,214 16 0.7 5,220 619 11.9
Wyoming................................................. 85 3 3.4 212 51 23.9
-----------------------------------------------------------------------------------------------
United States....................................... 108,220 10,495 9.7 356,871 61,348 17.2
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 24--Current and Additional Full-Time RNs and NAs Needed per State To Meet 0.55 RN and 2.45 NA HPRD Staffing Requirement for Rural LTC Facilities
--------------------------------------------------------------------------------------------------------------------------------------------------------
Existing full- Additional RNs % Increase in Existing full- Additional NAs % Increase in
State time RNs needed RNs needed time NAs needed NAs needed
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 721 69 9.5 2,884 280 9.7
Alaska.................................................. 108 0 0 256 0 0
Arizona................................................. 60 4 6.4 169 60 35.2
Arkansas................................................ 487 115 23.6 2,930 159 5.4
California.............................................. 150 37 24.5 847 32 3.8
Colorado................................................ 374 6 1.5 1,080 89 8.3
Connecticut............................................. 118 6 4.6 379 68 18.1
Delaware................................................ 0 0 .............. 0 0 ..............
District of Columbia.................................... 0 0 .............. 0 0 ..............
Florida................................................. 286 51 17.9 1,501 23 1.5
Georgia................................................. 732 177 24.2 3,147 954 30.3
Hawaii.................................................. 177 0 0 393 33 8.5
Idaho................................................... 163 1 0.6 542 21 3.8
Illinois................................................ 1,049 85 8.1 3,519 961 27.3
Indiana................................................. 1,147 51 4.5 3,510 740 21.1
Iowa.................................................... 1,458 29 2 4,789 534 11.1
Kansas.................................................. 862 10 1.1 3,224 130 4
Kentucky................................................ 1,212 70 5.8 4,011 543 13.5
Louisiana............................................... 262 192 73.4 2,166 284 13.1
Maine................................................... 403 0 0 1,151 5 0.4
Maryland................................................ 125 0 0 353 44 12.5
Massachusetts........................................... 12 0 0 40 0 0
Michigan................................................ 1,299 19 1.5 3,624 273 7.5
Minnesota............................................... 1,218 1 0.1 3,417 113 3.3
Mississippi............................................. 982 70 7.1 3,544 515 14.5
Missouri................................................ 823 133 16.2 3,959 639 16.1
Montana................................................. 356 5 1.5 996 125 12.6
Nebraska................................................ 630 13 2.1 2,380 129 5.4
Nevada.................................................. 61 0 0 189 23 12.1
New Hampshire........................................... 349 8 2.4 1,206 132 10.9
New Jersey.............................................. 0 0 .............. 0 0 ..............
New Mexico.............................................. 256 7 2.5 796 93 11.7
New York................................................ 827 37 4.5 2,609 824 31.6
North Carolina.......................................... 800 92 11.5 2,945 562 19.1
North Dakota............................................ 386 6 1.7 1,331 53 4
Ohio.................................................... 1,681 109 6.5 5,264 1,395 26.5
Oklahoma................................................ 437 94 21.4 3,040 196 6.4
Oregon.................................................. 158 2 1.1 528 0 0
Pennsylvania............................................ 1,026 50 4.9 3,152 757 24
[[Page 61413]]
Puerto Rico............................................. 0 0 .............. 0 0 ..............
Rhode Island............................................ 0 0 .............. 0 0 ..............
South Carolina.......................................... 279 62 22.4 1,121 250 22.3
South Dakota............................................ 488 2 0.5 1,382 146 10.6
Tennessee............................................... 683 78 11.4 2,515 603 24
Texas................................................... 1,138 311 27.3 6,143 1,763 28.7
Utah.................................................... 122 0 0 269 30 11.3
Vermont................................................. 250 2 0.8 734 90 12.3
Virginia................................................ 574 99 17.3 1,990 651 32.7
Washington.............................................. 193 5 2.5 535 84 15.6
West Virginia........................................... 399 32 8 1,464 223 15.2
Wisconsin............................................... 1,142 4 0.3 2,835 335 11.8
Wyoming................................................. 245 0 0 626 64 10.2
-----------------------------------------------------------------------------------------------
United States....................................... 26,708 2,144 8.0 95,485 15,028 15.7
--------------------------------------------------------------------------------------------------------------------------------------------------------
We then assessed the financial cost for facilities to implement the
proposed 0.55 RN and 2.45 NA HPRD minimum staffing requirement. To
estimate the yearly cost per State, we used the formulas described in
section VI.C.1.(a) to first estimate each facility's yearly cost to
meet the requirement. We also assumed that LTC facilities exceeding the
minimum requirements for either RNs and/or NAs would not reduce staff
to the minimum required level or lay off other staff to reduce costs.
We then calculated the average cost per resident day by summing the
total cost of meeting the requirement for all facilities in the State
and dividing it by the total number of resident days for all facilities
needing additional RNs or NAs. We estimated the average cost per
resident day only for facilities needing staff to provide a more
complete picture of the burden that the rule would impose on these
facilities.
Table 25 provides the yearly Statewide cost to implement the
requirement, as well as the average cost per resident day for
facilities in rural and urban areas that will need to hire staff to
meet the requirement. Facilities in Illinois that were not meeting the
minimum staffing standard would need to spend the most with an average
cost of $20.41 per resident day. The highest overall cost occurs in New
York where facilities would need to collectively spend nearly $409
million to meet the minimum staffing requirement. The cost also varied
across urban and rural areas. In Illinois, LTC facilities in urban
areas that need staff would need to spend an average of $21.70 per
resident day to meet the requirement, while in Florida, they would need
to spend less than $5.25 per resident day. Virginia had the highest
average cost for rural LTC facilities at $17.63 per resident day.
Table 25--LTC Facilities in Each State Needing RNs and/or NAs and Average Cost per Resident Day by Rural and Urban Location
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average cost Urban LTC Average cost Rural LTC Average cost
Yearly per resident facilities per resident facilities per resident
State statewide cost day needing RNs day (urban needing RNs day (rural
($ million) (statewide) and/or NAs areas) and/or NAs areas)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 57.5 $10.03 120 $10.59 57 $8.76
Alaska.................................................. 0.1 7.50 1 7.50 0 0.00
Arizona................................................. 35.8 12.07 99 12.06 8 12.17
Arkansas................................................ 33.9 7.40 103 7.96 80 6.58
California.............................................. 222.7 9.55 725 9.57 26 8.48
Colorado................................................ 37.4 10.18 122 10.29 26 9.37
Connecticut............................................. 63.4 12.04 140 12.25 12 9.14
Delaware................................................ 12.0 11.18 36 11.18 0 0.00
District of Columbia.................................... 1.9 6.33 7 6.33 0 0.00
Florida................................................. 54.3 5.32 271 5.23 22 6.46
Georgia................................................. 154.1 16.26 201 17.05 125 14.69
Hawaii.................................................. 2.6 9.41 5 7.97 3 10.84
Idaho................................................... 5.3 6.95 29 7.38 11 5.32
Illinois................................................ 353.5 20.41 412 21.70 155 14.49
Indiana................................................. 150.1 13.95 307 14.66 151 12.06
Iowa.................................................... 40.8 8.94 97 9.16 174 8.78
Kansas.................................................. 24.9 8.79 90 10.23 63 5.86
Kentucky................................................ 67.5 11.11 111 13.21 109 8.72
Louisiana............................................... 117.9 15.57 175 16.71 70 12.10
Maine................................................... 2.4 5.89 12 7.17 4 2.02
Maryland................................................ 77.5 12.00 168 12.14 10 8.64
Massachusetts........................................... 125.4 12.58 306 12.58 0 0.00
Michigan................................................ 128.6 14.78 250 15.77 68 9.49
Minnesota............................................... 33.6 10.09 109 10.81 49 7.58
Mississippi............................................. 38.3 9.46 54 10.89 103 8.62
Missouri................................................ 117.3 12.75 233 14.21 147 9.61
Montana................................................. 10.4 13.81 13 14.08 27 13.61
Nebraska................................................ 13.0 8.54 26 9.77 58 7.61
Nevada.................................................. 18.3 13.90 34 13.80 4 15.92
New Hampshire........................................... 18.4 13.58 27 12.88 19 14.60
New Jersey.............................................. 163.2 14.74 285 14.74 0 0.00
New Mexico.............................................. 15.3 10.87 29 11.33 22 9.87
[[Page 61414]]
New York................................................ 408.9 14.66 430 14.56 72 15.63
North Carolina.......................................... 126.9 13.01 256 13.33 87 11.99
North Dakota............................................ 3.9 10.81 5 7.81 15 11.84
Ohio.................................................... 287.6 14.68 577 15.19 227 13.06
Oklahoma................................................ 40.6 9.15 108 10.62 96 7.03
Oregon.................................................. 2.8 4.91 26 4.75 1 8.28
Pennsylvania............................................ 297.8 14.96 470 15.19 101 13.56
Puerto Rico............................................. 0.0 0.00 3 0.00 0 0.00
Rhode Island............................................ 16.1 9.87 53 9.87 0 0.00
South Carolina.......................................... 59.4 12.63 113 12.40 35 13.39
South Dakota............................................ 10.4 9.53 21 9.84 43 9.34
Tennessee............................................... 101.8 13.10 181 13.68 100 11.77
Texas................................................... 408.0 15.35 773 15.93 305 13.36
Utah.................................................... 7.5 6.40 49 6.38 8 6.52
Vermont................................................. 6.3 10.75 4 12.28 16 10.28
Virginia................................................ 156.1 19.18 180 19.65 63 17.63
Washington.............................................. 23.4 10.27 78 9.40 15 15.54
West Virginia........................................... 30.1 10.88 59 11.00 44 10.68
Wisconsin............................................... 40.9 11.15 114 11.79 75 10.06
Wyoming................................................. 6.2 13.03 6 14.37 13 11.97
-----------------------------------------------------------------------------------------------
United States....................................... 4,232.6 13.24 7,613 13.69 2,685 11.43
--------------------------------------------------------------------------------------------------------------------------------------------------------
Table 26 shows the average cost per resident day for facilities in
each State that need additional staff, dividing facilities based on
their size into three groups: less than 50 beds, 50 to 100 beds, and
more than 100 beds. Within each group of LTC facilities, the cost
varied widely by the number of beds and State. In Oklahoma, the average
cost per resident day for facilities that have fewer than 50 beds and
need additional RNs or NAs would be $1.84, while in Illinois, the
average cost per resident day for facilities with more than 100 beds
would be $22.10.
TABLE 26--Number of LTC Facilities in Each State Needed To Hire RNs and/or NAs and Average Cost per Resident Day by Facility Size
--------------------------------------------------------------------------------------------------------------------------------------------------------
Average cost
LTC facilities Statewide per resident Cost-- <50 Cost-- 50 to Cost-- >100
State needing RNs hiring cost day beds 100 beds beds
and/or NA ($ million) (statewide)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 177 57.5 10.03 $5.60 $8.61 $10.51
Alaska.................................................. 1 0.1 7.50 .............. 7.50 ..............
Arizona................................................. 107 35.8 12.07 11.89 7.44 13.24
Arkansas................................................ 183 33.9 7.40 .............. 7.39 7.40
California.............................................. 751 222.7 9.55 5.33 9.16 10.06
Colorado................................................ 148 37.4 10.18 10.94 9.33 10.65
Connecticut............................................. 152 63.4 12.04 19.07 10.35 12.34
Delaware................................................ 36 12.0 11.18 7.15 7.38 11.94
District of Columbia.................................... 7 1.9 6.33 3.88 18.10 4.45
Florida................................................. 293 54.3 5.32 7.69 5.67 5.24
Georgia................................................. 326 154.1 16.26 10.12 14.71 17.21
Hawaii.................................................. 8 2.6 9.41 3.82 14.83 8.42
Idaho................................................... 40 5.3 6.95 5.52 7.80 6.43
Illinois................................................ 567 353.5 20.41 8.51 14.51 22.10
Indiana................................................. 458 150.1 13.95 14.24 12.79 14.77
Iowa.................................................... 271 40.8 8.94 8.82 8.71 9.73
Kansas.................................................. 153 24.9 8.79 8.05 8.08 10.69
Kentucky................................................ 220 67.5 11.11 9.16 11.17 11.13
Louisiana............................................... 245 117.9 15.57 4.91 10.11 16.50
Maine................................................... 16 2.4 5.89 .............. 6.38 4.78
Maryland................................................ 178 77.5 12.00 6.36 9.83 12.44
Massachusetts........................................... 306 125.4 12.58 11.71 11.40 12.83
Michigan................................................ 318 128.6 14.78 12.36 12.49 15.97
Minnesota............................................... 158 33.6 10.09 10.30 10.13 9.96
Mississippi............................................. 157 38.3 9.46 12.76 7.93 10.45
Missouri................................................ 380 117.3 12.75 6.62 9.44 14.63
Montana................................................. 40 10.4 13.81 16.03 16.75 10.77
Nebraska................................................ 84 13.0 8.54 8.13 7.37 10.67
Nevada.................................................. 38 18.3 13.90 6.79 9.47 15.14
New Hampshire........................................... 46 18.4 13.58 4.31 13.58 13.86
New Jersey.............................................. 285 163.2 14.74 10.34 11.22 15.00
New Mexico.............................................. 51 15.3 10.87 10.24 10.86 10.90
New York................................................ 502 408.9 14.66 9.47 17.38 14.48
North Carolina.......................................... 343 126.9 13.01 11.27 11.71 13.77
North Dakota............................................ 20 3.9 10.81 9.93 5.47 15.42
Ohio.................................................... 804 287.6 14.68 11.28 13.76 16.15
Oklahoma................................................ 204 40.6 9.15 1.84 5.51 11.08
[[Page 61415]]
Oregon.................................................. 27 2.8 4.91 8.60 3.79 5.94
Pennsylvania............................................ 571 297.8 14.96 12.90 12.73 15.45
Puerto Rico............................................. 3 .............. .............. .............. .............. ..............
Rhode Island............................................ 53 16.1 9.87 9.19 9.16 10.21
South Carolina.......................................... 148 59.4 12.63 8.79 12.48 12.82
South Dakota............................................ 64 10.4 9.53 9.14 9.37 10.87
Tennessee............................................... 281 101.8 13.10 7.40 11.86 13.66
Texas................................................... 1,078 408.0 15.35 10.03 12.69 16.39
Utah.................................................... 57 7.5 6.40 9.69 6.84 5.62
Vermont................................................. 20 6.3 10.75 5.46 15.05 9.59
Virginia................................................ 243 156.1 19.18 5.92 16.13 20.25
Washington.............................................. 93 23.4 10.27 10.68 8.44 11.48
West Virginia........................................... 103 30.1 10.88 9.03 9.86 11.90
Wisconsin............................................... 189 40.9 11.15 7.93 10.40 12.47
Wyoming................................................. 19 6.2 13.03 .............. 8.27 14.84
-----------------------------------------------------------------------------------------------
United States....................................... 11,022 4,232.6 13.24 9.25 14.25 11.37
--------------------------------------------------------------------------------------------------------------------------------------------------------
In Table 27, we calculated the average cost by State for facilities
needing staff to meet the minimum staffing requirement based on whether
the facility accepted patients with Medicare, Medicaid, or both
Medicare and Medicaid. The highest per resident day cost would be for a
single Medicaid-only facility in North Dakota that would need to spend
an average of $31.33 per resident day to meet the staffing requirement.
The lowest per resident day cost for facilities needing staff would be
for two Medicare-only facilities in West Virginia that would need to
spend $0.59 per resident day to meet the requirement.
TABLE 27--Number of LTC Facilities in State Needing To Hire RNs and/or NAs and Average Cost per Resident Day by Medicare, Medicaid and Dual Acceptance
Status
--------------------------------------------------------------------------------------------------------------------------------------------------------
Medicare and
Medicare only Medicaid only Medicare and Medicaid
State Medicare only facilities Medicaid only facilities Medicaid facilities
facilities cost per facilities cost per facilities cost per
resident day resident day resident day
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. 4 $5.87 1 $12.92 171 $10.06
Alaska.................................................. 0 0.00 0 0.00 1 7.50
Arizona................................................. 13 7.84 0 0.00 92 12.54
Arkansas................................................ 0 0.00 2 2.18 180 7.50
California.............................................. 7 3.51 19 26.77 722 9.02
Colorado................................................ 9 5.85 3 26.07 135 10.15
Connecticut............................................. 0 0.00 0 0.00 151 12.02
Delaware................................................ 3 6.47 2 10.37 31 11.36
District of Columbia.................................... 0 0.00 0 0.00 7 6.33
Florida................................................. 6 9.96 0 0.00 285 5.31
Georgia................................................. 4 5.94 0 0.00 322 16.36
Hawaii.................................................. 0 0.00 0 0.00 8 9.41
Idaho................................................... 0 0.00 0 0.00 40 6.95
Illinois................................................ 9 5.58 14 37.51 542 20.11
Indiana................................................. 7 17.82 5 11.21 444 13.96
Iowa.................................................... 2 3.09 5 11.49 261 8.93
Kansas.................................................. 1 12.98 9 20.62 142 8.31
Kentucky................................................ 5 9.72 0 0.00 213 11.13
Louisiana............................................... 6 4.27 0 0.00 232 15.30
Maine................................................... 0 0.00 0 0.00 16 5.89
Maryland................................................ 2 10.02 0 0.00 175 12.05
Massachusetts........................................... 4 14.14 0 0.00 296 12.58
Michigan................................................ 1 6.28 1 2.71 314 14.72
Minnesota............................................... 4 5.84 6 27.71 146 9.19
Mississippi............................................. 3 19.62 12 9.42 142 9.41
Missouri................................................ 5 9.63 6 15.99 368 12.74
Montana................................................. 0 0.00 0 0.00 40 13.81
Nebraska................................................ 0 0.00 3 7.04 77 8.59
Nevada.................................................. 3 6.74 1 24.55 34 13.70
New Hampshire........................................... 0 0.00 1 6.60 45 13.78
New Jersey.............................................. 5 8.83 0 0.00 278 14.66
New Mexico.............................................. 0 0.00 1 8.08 50 10.89
New York................................................ 0 0.00 0 0.00 500 14.69
North Carolina.......................................... 7 11.76 1 11.94 332 13.05
North Dakota............................................ 1 31.33 0 0.00 18 10.98
Ohio.................................................... 5 8.84 0 0.00 792 14.70
Oklahoma................................................ 2 6.39 2 6.86 200 9.20
Oregon.................................................. 0 0.00 2 7.52 23 4.60
Pennsylvania............................................ 33 9.70 1 3.98 535 15.12
Puerto Rico............................................. 3 0.00 0 0.00 0 0.00
[[Page 61416]]
Rhode Island............................................ 0 0.00 0 0.00 53 9.87
South Carolina.......................................... 10 6.87 0 0.00 137 12.82
South Dakota............................................ 0 0.00 6 5.67 57 9.90
Tennessee............................................... 18 9.05 4 8.30 259 13.34
Texas................................................... 23 8.53 6 10.40 1,041 15.51
Utah.................................................... 4 9.15 4 12.85 49 6.00
Vermont................................................. 0 0.00 0 0.00 20 10.75
Virginia................................................ 9 3.26 5 15.09 227 19.55
Washington.............................................. 0 0.00 0 0.00 93 10.27
West Virginia........................................... 2 0.59 1 8.01 98 10.81
Wisconsin............................................... 2 1.40 1 5.13 184 11.24
Wyoming................................................. 0 0.00 0 0.00 19 13.03
-----------------------------------------------------------------------------------------------
United States....................................... 222 8.39 124 19.33 10,597 13.96
--------------------------------------------------------------------------------------------------------------------------------------------------------
b. Benefits of LTC Minimum Staff Requirement
Literature evidence suggests that higher staffing is associated
with better quality of patient care and patient health
outcomes.180 181 182 While many of these benefits are
difficult to quantify, research suggests a positive correlation between
higher RN HPRD and more community discharges, as well as fewer
hospitalizations and emergency department visits that result in
significant savings for Medicare. The strongest comes from the 2022
Nursing Home Staffing Study that analyzes the Medicare savings that are
likely to result from different case-mix adjusted RN hours per resident
day (HPRD) requirements.
---------------------------------------------------------------------------
\180\ Cai, S., Yan, D., & Intrator, O. (2021). COVID-19 cases
and death in nursing homes: The role of racial and ethnic
composition of facilities and their communities. Journal of the
American Medical Directors Association, 22(7), 1345-1351.
\181\ Harris, J.A., Engberg, J., & Castle, N.G. (2020).
Organizational and geographic nursing home characteristics
associated with increasing prevalence of resident obesity in the
United States. Journal of Applied Gerontology, 39(9), 991-999.
https://doi.org/10.1177/07 464819843045 https://doi.org/10.1177/07
464819843045 https://doi.org/10.1177/07 464819843045 https://doi.org/10.1177/07 464819843045.
\182\ Min, A., & Hong, H.C. (2019). Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A cross-sectional study using the US Nursing
Home Compare database. Geriatric Nursing, 40(2), 160-165. https://
doi.org/10.1016/j.ghttps://doi.org/10.1016/j.gerinurse.2018.09.010https://doi.org/10.1016/j.ghttps://doi.org/10.1016/j.gerinurse.2018.09.010.
---------------------------------------------------------------------------
The study first used the PBJ system, which contains data on daily
hours worked by RNs, and data from the Minimum Data Set (MDS) on
resident acuity and the number of residents in the facility, to
calculate the acuity-adjusted RN HPRD for 14,140 LTC facilities based
on data from 2022 Q2.\183\ We would note, as discussed above, that
while the benefits described in this section were calculated on the
basis of acuity-adjusted data, the minimum staffing requirements being
proposed in this rule will be applied independent of an individual
facility's case-mix. We understand that this may impact the
comparability of the benefits described in this section to those which
may occur if these requirements are finalized, but we also believe that
the acuity adjusted data more accurately reflect that which is publicly
reported through Care Compare and the PBJ System. Registered nurses
included RNs, RNs with administrative duties, and RN directors of
nursing. It then used Nurse Home Compare Data from 2021Q2 to 2022Q1 to
examine the impact of different RN staffing levels on five claims-based
measures: short-stay hospital readmission, short-stay emergency
department (ED) visits, long-stay hospitalizations per 1,000 long-stay
resident days, long-stay ED visits per 1,000 long-stay resident days,
and the rate of successful return to home or community. More
specifically, the study ran a multivariate regression model that used
the 1st and 2nd RN staffing decile as the reference group and included
the 3rd through the 10th deciles of RN staffing as covariates in the
model. The model also includes several additional covariates that take
into account LTC facility specific characteristics that include: (1)
facility size (number of certified beds), (2) ownership type (for-
profit, non-profit or government owned), (3) whether the facility is
located in a rural area, (4) the facility's Medicaid population
quartile, (5) whether the facility is hospital-based, (6) the
facility's status in the Special Focus Facility Program, and (7)
whether the facility is part of a continuing care retirement community.
They then used the model coefficients to identify the mean outcomes
that were associated with each staffing level above the 1st and 2nd RN
staffing deciles.
---------------------------------------------------------------------------
\183\ In the study, Appendix E, Section E.1.1 provides details
on the criteria used for the acuity adjustment.
---------------------------------------------------------------------------
After identifying the mean outcome rate for each of the five
measures that was associated with each staffing level, they compared it
to the adjusted mean outcome rate for each facility to the rate the
facility would have if it met the minimum required RN staffing level.
For those facilities above the minimum RN staffing level, they assumed
that they would maintain their current RN staffing level. Based on the
facility's number of short-stay residents, as well as long-stay
resident days, they then estimated the total savings at the facility
level. To measure costs savings for Medicare, the used an average
estimated cost of $20,400 per hospitalization, $2,500 per ED visit, and
for community and home discharge, the reduction in the number of
Medicare-covered SNF days multiplied by the average daily payment
amount. Using these criteria, the study estimates that a minimum RN
requirement of between 0.52 and 0.60 HPRD would result in $318,259,715
in annual Medicare savings.\184\
---------------------------------------------------------------------------
\184\ Abt Associates. (2022). Nursing Home Staffing Study
Comprehensive report. Page 110. Report prepared for the Centers for
Medicare & Medicaid Services. https://edit.cms.gov/files/document/nursing-home-staffing-study-final-report-appendix-june-2023.pdf.
---------------------------------------------------------------------------
Given that our proposed RN HPRD level is 0.55 we consider this
amount to be our best estimate of the rule's financial benefits. There
are also likely to be cost savings for Medicaid due to fewer
hospitalizations and emergency department visits, although the 2022
[[Page 61417]]
Nursing Home Staffing Study did not quantify them. Higher RN and NA
staffing levels may also lead to lower employee burnout and turnover,
reducing LTC facilities' costs to recruit new staff and lowering
dependence on temporary employees, who often command higher hourly
rates. Additionally, while the savings estimate above reflects an
acuity-adjusted standard, given variability in acuity across
facilities, we believe that these savings estimates provide guidance on
the potential impact of applying the minimum staffing requirements
independent of a facility's case-mix. We invite comments on this
assumption and to what extent the benefits described in this section
should be calculated using unadjusted data from PBJ and Care Compare.
Table 28 provides the estimated quantifiable benefits annually and
over 10 years. Since the 0.55 RN HPRD requirement will not go into
effect until Year 3, we estimate no reduction in Emergency Department
visits and hospitalizations, as well as increase in discharges to home
or the community for the first 2 years. Over 10 years, we estimate a
total of approximately $2.55 billion in Medicare cost savings. We are
soliciting comments on additional benefits from increased RN and NA
staffing and note that the table below does not reflect the
unquantifiable benefits of this rule.
Table 28--Minimum Staffing Requirement and Medicare Cost Savings
------------------------------------------------------------------------
Medicare cost
Year savings
------------------------------------------------------------------------
1.................................................... $0
2.................................................... 0
3.................................................... 318,259,715
4.................................................... 318,259,715
5.................................................... 318,259,715
6.................................................... 318,259,715
7.................................................... 318,259,715
8.................................................... 318,259,715
9.................................................... 318,259,715
10................................................... 318,259,715
------------------
Total 10 Year Savings............................ 2,546,077,720
------------------------------------------------------------------------
Sources of uncertainty about the benefits of the 24/7 RN and 0.55
RN and 2.45 NA HPRD requirement parallel the cost uncertainty discussed
earlier but with some differences:
The benefits estimate assumed that LTC facilities needing RNs and/
or NAs to meet these requirements will hire the necessary staff. It
does not, however, take into account how changes in the number of hours
per resident day of other direct care or support staff might affect the
impact that increasing the RN HPRD will have on Medicare cost savings.
Some research, however, has found that when States implemented minimum
hour per day requirements for direct care staff (RNs, LPNs, and NAs),
LTC facilities responded by reducing indirect care staff, such as
housekeeping, food service, and activities staff. 185 186 If
LTC facilities respond to the newly proposed 24/7 RN and 0.55 and 2.45
NA requirement in similar ways, then benefits of the requirements would
be lower than what is presented above (see earlier discussion about
appropriate accounting depending on the consistency between benefit and
cost analytic approaches).
---------------------------------------------------------------------------
\185\ Thomas, Kali S., Kathryn Hyer, Ross Andel, and Robert
Weech-Maldonado. The Unintended Consequences of Staffing Mandates in
Florida Nursing Homes: Impacts on Indirect-Care Staff, 2010,
Medicare Care Research and Review, Volume 67, Issue 5, Pages 555-
573.
\186\ Bowblis, John R., and Kathryn Hyer. Nursing Home Staffing
Requirements and Input Substitution: Effects on Housekeeping, Food
Service, and Activities Staff, 2013, Health Services Research,
Volume 48, Issue 4, Pages: 1539-1550.
---------------------------------------------------------------------------
The benefits estimate assumed that LTC facilities that exceed the
24/7 RN and 0.55 RN and 2.45 NA HPRD requirements would maintain RN and
NA staffing at their current levels. Research examining how LTC
facilities have responded to State level staffing mandates provides
mixed evidence for this assumption, with some research finding no
evidence that LTC facilities exceeding minimum requirements reduce
staffing, while other research suggests that they do.\187\ If LTC
facilities reduced RN and NA staffing levels to a level that is closer
to the minimum requirement, then benefits would be lower than what is
estimated above.
---------------------------------------------------------------------------
\187\ Chen, Min M., and David C. Grabowski. Intended and
Unintended Consequences of Minimum Staffing Standards for Nursing
Homes, 2015, Volume 24, Pages 822-839.
---------------------------------------------------------------------------
The benefits estimate assumed that no LTC facilities would obtain
exemptions from the 0.55 RN and 2.45 NA HPRD requirements, although
some facilities could obtain such an exemption. Our analysis suggests
that, using the criteria of being located in an area with a medium
staffing shortage or being located 20 miles from the nearest LTC
facility, up to 24 percent of LTC facilities would meet the initial
criteria for an exemption from the 2.45 NA HPRD requirement while 28
percent would be eligible for an exemption from the 0.55 RN HPRD
requirement. Depending on the number of facilities that obtain an
exemption, the total benefits of the rule could be lower than what is
presented above.
States could vary in how they respond to the increased staffing
requirement, including whether they pay at least some of the additional
nursing staffing costs with Medicaid funds. Benefits consequences are
contingent upon such choices. For example, if overall Medicaid spending
does not increase, but funds are shifted from other uses to increased
LTC facility staffing, there would be negative health benefits for the
patients experiencing reduced Medicaid coverage.
c. Transfers Associated With the 24/7 RN and 0.55 RN and 2.45 NA HPRD
Minimum Staffing Requirements
We do not estimate transfers associated with the 24/7 RN and 0.55
RN and 2.45 NA HPRD minimum staffing portion of this rule since there
are no requirements that Medicare, Medicaid and other non-Medicare/
Medicaid payors increase payment rates in response to these
requirements. In Tables 21 and 22, however, we do provide a breakdown
of how much of the estimated cost from the proposed rule is due to LTC
residents whose stay is covered by each payor type
[[Page 61418]]
(Medicare, Medicaid, and other non-Medicare/Medicaid payors).
(5) Medicaid Institutional Payment Transparency Reporting Provision
Impacts
Under our authority at sections 1902(a)(6) and (a)(30) of the Act
with regard to fee-for-service delivery systems, and sections
1902(a)(4) and 1932(c) of the Act with regard to managed care, we are
proposing new reporting requirements at Sec. Sec. 442.43(b) and
442.43(c) for States to report annually, by facility and by delivery
system, on the percent of payments for Medicaid-covered services
delivered by nursing facilities and ICF/IIDs that are spent on
compensation for direct care workers and support staff.
Under this proposal, States would be required to report annually to
us on the percent of payments for nursing facility and ICF/IID services
that are spent on compensation for direct care workers and support
staff. We are considering additional requirements that States report on
median hourly wages for direct care workers and support staff in these
facilities, and the State's FFS per diem rates for nursing facility and
ICF/IID services. (The estimated costs of these additional proposals
have been factored into our overall cost estimates.) We are proposing
that States would be required to post all reported data on a State-
maintained website, which States would review quarterly to ensure the
information remains accurate and up-to-date. We believe that gathering
and sharing data about the amount of Medicaid dollars that are going to
the compensation of workers is a critical step in the larger effort to
understand the ways we can enact policies that support the
institutional care workforce and thereby help advance access to high
quality care for Medicaid beneficiaries.
a. Costs of Medicaid Institutional Payment Transparency Reporting
As outlined in the Collection of Information (section IV. of this
proposed rule), we estimate implementation costs to States of $622,551
to come into compliance with the reporting requirements proposed at
Sec. Sec. 442.43(b) and 442.43(c); we estimate an annual total cost of
$97,470 once the reporting requirement went into effect. Additionally,
under our proposal at Sec. 442.43(d), States would be required to make
this information available on a public website; as outlined in the
Collection of Information (section IV. of this proposed rule) we
estimate an implementation cost to States of $239,333 and an ongoing
annual cost of $295,527 once reporting starts. The total State costs
for both the proposed reporting and website requirements are thus
estimated at $861,884 for implementation costs ($622,551 + $239,333)
and $392,997 ongoing annual costs once the reporting starts ($97,470 +
$295,527).
However, as discussed in the Collection of Information (section IV.
of this proposed rule) the Federal Government, through Federal
Financial Participation, has a share in State Medicaid expenditures.
For the purposes of this proposal, we have estimated that the Federal
share of States' Medicaid expenditures is 50 percent. This means that
the States and the Federal Government will each have a 50 percent share
in the costs estimated in the prior paragraph. Therefore, we estimate
that the States' and Federal Government's shares of the implementation
costs for the proposals would be $430,942 ($861,864 x 0.5) and ongoing
annual costs once the requirements took effect of $196,498 ($392,997 x
0.5).
As discussed in the Collection of Information (section IV. of this
proposed rule) we estimate that the total cost to providers to prepare
for compliance with the reporting requirement proposed at Sec.
442.43(b) and (c) would be $36,560,002, and an annual total cost to
providers of $17,912,717.
We do not estimate a cost to providers for the website posting
requirement proposed at Sec. 442.43(d). We also do not anticipate
costs to beneficiaries associated with either the proposed reporting
requirement or the proposed website posting requirement.
Table 29 provides a detailed summary of the estimated costs of each
of the provisions for States, the Federal Government, and providers.
Table 30 summarizes the estimated costs of the provisions in Sec.
442.43 for States, the Federal Government, and providers (Nursing Care
Facilities (NAICS 623110) and Residential Intellectual and
Developmental Disabilities Facilities (NAICS 623210)), over 10 years.
Aside from regulatory review costs (discussed in the next section) this
comprises the entirety of anticipated quantifiable costs associated
with proposed changes to part 442, subpart B. The implementation costs
associated with the proposed reporting and website posting requirements
are split evenly over the years leading up to the proposed effective
date, which is 4 years from the final rule's publication. For States
and the Federal Government, this means that the implementation costs
are represented as $107,736 per year for 4 years ($430,942 estimated
implementation costs/4 years). For providers, the implementation costs
are represented as $9,140,000 per year for 4 years ($36,560,002
estimated implementation costs/4 years). We also anticipate that once
the rule goes into effect in Year 5, the ongoing annual costs will be
relatively stable. We have shown the recurring annual estimate for
Years 5-10 in Table 30. The estimates below do not account for higher
costs associated with medical care; the costs calculated here are
related exclusively to reporting and website posting costs. Per OMB
guidelines, the projected estimates for future years are reported in
real (non-inflation-indexed) dollars.
As discussed in the Collection of Information (section IV. of this
proposed rule), costs were based on: (1) the number of States
(including Washington, DC and certain territories) that currently
operate Medicaid programs that cover nursing facility or ICF/IID
services; (2) the number of States that deliver long-term services and
supports through managed care; and (3) the total number of freestanding
Medicaid-certified nursing facility and ICF/IID facilities in all
States. We do not anticipate the number of entities changing
significantly over the 10 years included in the cost calculations.
Table 29--Implementation and Annual Costs Detailed
----------------------------------------------------------------------------------------------------------------
Implementation Ongoing annual
Cost to Cost to Costs to burden overall burden overall
states ($) federal ($) providers ($) total ($) total ($)
----------------------------------------------------------------------------------------------------------------
Reporting--Implementation....... 311,275 311,275 36,560,002 37,182,552 ................
Reporting--Recurring annual 48,735 48,735 17,912,717 ................ 18,010,187
starting Year 5................
Website--Implementation......... 119,667 1196,667 0 239,333 ................
Website--Recurring annual 147,763 147,763 0 ................ 295,526
starting Year 5................
-------------------------------------------------------------------------------
[[Page 61419]]
Total....................... 627,440 627,440 54,472,719 37,421,886 18,305,713
----------------------------------------------------------------------------------------------------------------
Table 30--Projected Distribution of Costs for Proposed Updates to 42 CFR 442 Subpart B
----------------------------------------------------------------------------------------------------------------
Total costs
Federal associated
Year State costs costs Provider costs with Sec.
442.43
----------------------------------------------------------------------------------------------------------------
1..................................................... 107,736 107,736 9,140,000 9,355,472
2..................................................... 107,736 107,736 9,140,000 9,355,472
3..................................................... 107,736 107,736 9,140,000 9,355,472
4..................................................... 107,736 107,736 9,140,000 9,355,472
5..................................................... 196,498 196,498 17,912,717 18,305,713
6..................................................... 196,498 196,498 17,912,717 18,305,713
7..................................................... 196,498 196,498 17,912,717 18,305,713
8..................................................... 196,498 196,498 17,912,717 18,305,713
9..................................................... 196,498 196,498 17,912,717 18,305,713
10.................................................... 196,498 196,498 17,912,717 18,305,713
---------------------------------------------------------
10 Year Total Cost................................ 1,609,930 1,609,930 144,036,304 147,256,164
----------------------------------------------------------------------------------------------------------------
b. Benefits of Medicaid Institutional Payment Transparency Reporting
Our proposal is intended to support the sufficiency of the direct
care and support staff workforce through public reporting of the direct
payments to these workers. The immediate benefits (and the intermediate
costs in the cause-and-effect chain connecting reporting to long-term
benefits) are difficult to quantify. However, we believe that these
provisions, if finalized, will pave the way for long-term benefits to
Medicaid beneficiaries and help hold States accountable for ensuring
that Medicaid payments are sufficient to enlist enough workers so that
high quality LTSS are available to the beneficiaries who want and
require such care.
We believe that compensation levels are a factor in the creation of
a stable workforce, and that a stable workforce will result in better
qualified employees, lower turnover, and a higher quality of
care.188 189 If individuals are attracted to the
institutional LTSS workforce and incentivized to remain employed in it,
the workforce is more likely to be comprised of workers with the
training, expertise, and experience to meet the diverse and often
complex needs of individuals with disabilities and older adults
residing in institutions. As discussed above, a consistent, adequate
direct care workforce can reduce reliance on overtime and costlier
temporary staff and reduce the incidence of emergency department visits
and hospitalizations.190 191 192
---------------------------------------------------------------------------
\188\ See, for example, the discussion of low wages among direct
care workers in Campbell, S., A. Del Rio Drake, R. Espinoza, K.
Scales. 2021. Caring for the future: The power and potential of
America's direct care workforce. Bronx, NY: PHI http://phinational.org/wp-content/uploads/2021/01/Caring-for-the-Future-2021-PHI.pdf.
\189\ See, for example, the discussion of the relationship
between staff turnover and nursing home quality in Zheng Q, Williams
CS, Shulman ET, White AJ. Association between staff turnover and
nursing home quality--evidence from payroll-based journal data. J Am
Geriatr Soc. 2022 Sep;70(9):2508-2516. doi: 10.1111/jgs.17843. Epub
2022 May 7. PMID: 35524769.
\190\ Ochieng, N., Chidambaram, P., Musumeci, M. Nursing
Facility Staffing Shortages During the COVID-19 Pandemic. Apr 04,
2022. Kaiser Family Foundation. Accessed at https://www.kff.org/coronavirus-covid-19/issue-brief/nursing-facility-staffing-shortages-during-the-covid-19-pandemic/.
\191\ Harrington, C., Carrillo, H., Garfield, R., Squires, E.
Nursing Facilities, Staffing, Residents and Facility Deficiencies,
2009 Through 2016. Apr 03, 2018. Kaiser Family Foundation. Accessed
at https://www.kff.org/report-section/nursing-facilities-staffing-residents-and-facility-deficiencies-2009-through-2016-staffing-levels/.
\192\ Min A, Hong HC. Effect of nurse staffing on
rehospitalizations and emergency department visits among short-stay
nursing home residents: A Cross-sectional study using the US Nursing
Home Compare database. Geriatr Nurs. 2019 Mar-Apr;40(2):160-165.
doi: 10.1016/j.gerinurse.2018.09.010. Epub 2018 Oct 4. PMID:
30292528.
---------------------------------------------------------------------------
There are many factors that contribute to understaffing in
institutional settings. We are constantly seeking opportunities to
address these challenges through guidance, policies, and rulemaking.
These provisions in this proposed rule are intended to promote
transparency around compensation for direct care workers and support
staff. We believe that gathering and sharing data about the amount of
Medicaid payments going to the compensation of workers is a critical
step in the larger effort to understand the ways we can enact future
policies that support the institutional care workforce.
c. Transfers Associated With Medicaid Institutional Payment
Transparency Reporting
We do not estimate transfers associated with these proposed
provisions.
D. Alternative Direct Care Staff HPRD Requirement Considered
As detailed in this proposed rule, despite the existing
requirements and the efforts to improve safety, as well as residents'
quality of care and quality of life through the revisions in the 2016
final rule, understaffing in LTC facilities continues to be a concern.
We believe the changes we have proposed are consistent with current
standards of practice and necessary to increase resident safety and
quality of care. We acknowledge, however, there are multiple avenues
for establishing a minimum nurse staffing requirement and solicit
comments on alternative policy options, including a specific comment
solicitation in the ``Provisions of the Proposed Regulation'' section.
In developing the proposed rule, we considered varying staffing
models that are available and different approaches we could have
adopted for the proposed minimum nurse staffing requirement. We could
have adopted multiple different types of combinations of a
[[Page 61420]]
staffing requirement such as separate requirements for RNs, LVNs/LPNs,
and NAs or defining requirements for licensed nurse staffing, that is,
combining RNs and LVNs/LPNs or creating standards for NAs only.
Alternatively, we could have adopted non-nurse staffing requirements
such as social workers, therapists, feeding assistants and other non-
nurse staffing types in the minimum staffing requirement. Alternative
minimum staffing policy options could also focus on the need to
increase or decrease the number of HPRD or FTEs by nurse staff and/or
type or on specifying the number by shift (including day, evening,
night, or weekends or over a 24-hour period).
Ultimately, we chose the comprehensive 24/7 RN and 0.55 RN and 2.45
NA HPRD requirements in this proposed rule to strike a balance between
ensuring resident health and safety, while preserving access to care,
including discharge to community-based services. We considered a
staffing standard that would maintain the 24/7 and 2.45 NA HPRD
requirements but would have a lower RN HPRD requirement. We found,
however, that even a small reduction in the RN HPRD requirement would
lead to a large decline in quality of care. For example, the 2022
Nursing Home Staffing Study \193\ found that reducing the case-mix
adjusted RN HPRD requirement to between 0.45 and 0.52 hours per
resident day would lead the staffing standard to have a smaller impact
on Medicare savings, reduced hospitalizations and ED visits, and fewer
community discharges. More specifically, the number of reduced
hospitalizations would decline from 10,445 to 5,781, the number of
reduced ED visits would decline from 7,525 to 4,466, increased
community discharges would decline from 5,798 to 3,930, and Medicare
savings would decline by more than $130 million annually.
---------------------------------------------------------------------------
\193\ Please see Exhibit 4.50. Predicted Medicare Savings and
Changes in Utilization for Potential Minimum RN Staffing Options.
---------------------------------------------------------------------------
We seek comments on choosing a lower HPRD minimum staffing
requirement. In particular, how a lower minimum staffing requirement
may influence quality of care and resident safety, as well as access to
care.
We also considered alternative minimum staffing requirements at
higher levels than the one we proposed. To illustrate this approach, we
considered an alternative minimum staffing requirement that would
retain the 24/7 RN requirement but would increase the minimum HPRD
requirement. More specifically, this alternative minimum requirement
would include a minimum staffing level of 0.55 RN HPRD, 2.45 NA HPRD,
and 3.48 total nurse staff (RN, LPN/LVN, NA) HPRD. It is important to
note that these estimates do not include the exemption criteria, which
could significantly reduce the rule's cost.
To estimate the incremental impact of the Minimum Nurse Staffing
Requirement of 0.55 RN HPRD, 2.45 NA HPRD, and 3.48 total nurse staff
HPRD, we used the same methodology described in section VI.C.1 to first
estimate the cost of facilities meeting the 0.55 RN and 2.45 NA hours
per resident day, minimum staffing requirement. After accounting for
any increase in RN and NA hours per resident day needed to meet the
0.55 RN and 2.45 NA requirements, we then calculated the total number
of additional hours per resident day of nurse care that LTC facilities
would need to provide to meet the 3.48 HPRD total nurse staff
requirement. We did this calculation by subtracting the total nurse
staff hours (RN, LVN/LPN, and NA) provided from 3.48 using the
following formula: [3.48-(RN HPRD +LVN/LPN HPRD + NA HPRD)]. For any
facilities that were below the 3.48 total nurse staff requirement, we
assumed that they would hire NAs to fulfill any remaining hours. Using
this strategy, we estimate that this alternative HPRD option would have
an annual cost of approximately $4.25 billion for all facilities.
This $4.25 billion estimate assumed that LTC facilities would
respond to the minimum staffing requirement by increasing their RN and
NA staffing levels to the level necessary to meet the requirements,
without reducing other staff such as administrative staff. We also
assumed LTC facilities that were above the minimum staffing
requirements for RNs or total nurse staff hours per resident day would
not decrease their staffing levels to the mandated minimum. Finally, we
assumed that LTC facilities would not lay off LVNs/LPNs and replace
them with NAs, who are less costly. If facilities covered under this
proposed rule reduced other staff not covered by the rule, reduced
nurse staff levels to the mandate minimum, or they obtained exemptions
from the minimum staffing requirements, the requirement's cost and
benefits could decline significantly relative to what is presented
above. Non-quantified effects, such as costs associated with LTC
closure or reduction in patient load per facility, would also be
reduced).
Table 31 summarizes the 10-year total cost for this alternative
minimum nurse staffing proposal in 2021 US dollars. The total cost for
this alternative proposal included the 24/7 RN requirement, the 3.48
HPRD requirement, and any associated collection of information costs as
described in section IV. Collection of Information Requirement. To
account for changes in real nurse staff wages over time, we assumed
that real wages would rise at a rate of 2.31 percent annually. Since
this estimate continued to assume that the rule would have different
phase-in periods for rural and urban LTC facilities to meet the 24/7 RN
(2 years for facilities in urban areas and 3 years for facilities in
rural areas) and the 0.55 RN HPRD, 2.45 NA HPRD, and 3.48 total nurse
staff (RN, LPN/LVN, NA) HPRD (3 years for facilities in urban areas and
5 years for facilities in rural areas) requirements, we provided
separate estimates for facilities located in each area. Over a 10-year
period, we anticipated an average annual cost of approximately $4.08
billion.
Table 31--Cost for Alternative Minimum Nurse Staffing Requirement of 3.48 Total Hours per Resident Day
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Collection of Collection of 0.55 RN, 2.45 NA, 0.55 RN, 2.45 NA,
information information costs 24/7 RN 24/7 RN and 3.48 total and 3.48 total
costs for 24/7 for facility Requirement Requirement nurse HPRD nurse HPRD
Year RN (Sec. assessment (Sec. (urban (rural Requirement requirement Total cost
483.35 nursing 483.71 facility facilities) facilities) (urban (rural
services) assessment) facilities) facilities)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
1............................................................. $7,461,504 $24,176,448 $0 $0 $0 $0 $31,637,952
2............................................................. 7,633,865 24,734,924 213,764,107 0 0 0 246,132,896
[[Page 61421]]
3............................................................. 7,810,207 25,306,301 218,702,058 146,603,030 3,675,431,549 0 4,073,853,145
4............................................................. 7,990,623 25,890,876 223,754,076 149,989,560 3,760,334,018 0 4,167,959,153
5............................................................. 8,175,206 26,488,955 228,922,795 153,454,319 3,847,197,733 808,635,699 5,072,874,708
6............................................................. 8,364,053 27,100,850 234,210,912 156,999,114 3,936,068,001 827,315,184 5,190,058,114
7............................................................. 8,557,263 27,726,880 239,621,184 160,625,793 4,026,991,172 846,426,164 5,309,948,456
8............................................................. 8,754,936 28,367,371 245,156,433 164,336,249 4,120,014,668 865,978,609 5,432,608,265
9............................................................. 8,957,175 29,022,657 250,819,547 168,132,416 4,215,187,007 885,982,714 5,558,101,516
10............................................................ 9,164,086 29,693,081 256,613,478 172,016,275 4,312,557,827 906,448,915 5,686,493,661
---------------------------------------------------------------------------------------------------------------------------------
10 Year Total Cost........................................ 82,868,918 268,508,343 2,111,564,589 1,272,156,756 31,893,781,974 5,140,787,285 40,769,667,866
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
As we have previously noted, this rule does not require payors to
increase payment rates to providers to meet the expected costs of the
minimum staffing and 24/7 RN requirements. Below, however, we provide
estimates of how much of facilities' costs to meet the minimum staffing
and 24/7 RN requirements are due to residents whose stays are covered
by Medicaid, Medicare, and other non-Medicare/Medicaid payors.
Table 32 lays out the share of the facility's cost to meet the
requirement that is due to residents utilizing Medicaid, with an
average annual cost of approximately $2.68 billion in 2021 US dollars
over a 10-year period. Table 33 lays out the share of the facility's
cost that is due to residents utilizing Medicare and other non-
Medicare/Medicaid payors, with an average annual cost of approximately
$453 million for Medicare and $884 million for other payors in 2021 US
dollars over a 10-year period. These estimates were based on the
assumptions listed in section VI.C.1.a.(3) of this proposed rule.
We seek comments on choosing a higher HPRD minimum staffing
requirement. In particular, we welcome comments regarding how a higher
minimum staffing requirement may influence quality of care and resident
safety, as well as access to care.
BILLING CODE 4120-01-P
[[Page 61422]]
[GRAPHIC] [TIFF OMITTED] TP06SE23.003
[[Page 61423]]
[GRAPHIC] [TIFF OMITTED] TP06SE23.004
BILLING CODE 4120-01-C
[[Page 61424]]
2. Medicaid Institutional Payment Transparency Reporting
We considered proposing to require in Sec. 442.43(b) that States
report at the beneficiary level or other more granular levels but did
not include such requirements because we expected that this would
increase reporting burden for States and providers without giving us
additional information necessary for determining the percent of
payments that are going to the workforce.
We also considered whether to allow States, at their option, to
exclude from their reporting to CMS payments to providers that have low
Medicaid revenues or serve a small number of Medicaid beneficiaries,
based on Medicaid revenues for the service, or the number of Medicaid
beneficiaries receiving the service. We considered this option as a way
to reduce State and provider data collection and reporting burden based
on the experience of States that have implemented similar reporting
requirements. However, we are concerned that such an option could
discourage providers from serving Medicaid beneficiaries or increasing
the number of Medicaid beneficiaries served.
E. Regulatory Review Costs
1. Regulatory Review Costs of 24/7 RN and 0.55 RN and 2.45 NA HPRD
Minimum Nurse Staffing
If the 24/7 RN and the Minimum Nurse staffing proposals impose
administrative costs on private entities, such as the time needed to
read and interpret this proposed rule, we should estimate the cost
associated with regulatory review. As discussed in the Collection of
Information (section III. of this proposed rule), 14,688 LTC facilities
would be impacted by the proposed requirements. We assume that seventy-
five percent (75 percent) of LTC facilities will proactively review
this proposed rule, or 11,016. (We note that the FY 2023 SNF PPS
proposed rule, 87 FR 22720, had around 18,000 views, as shown at
https://www.federalregister.gov/documents/2022/04/15/2022-07906/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities. Some of these views were likely
multiple views by the same reader.) We acknowledge that this assumption
may understate or overstate the costs of reviewing this rule. It is
possible that not all of the affected LTC facilities will read this
proposed rule, or that there may be more than one individual reviewing
the rule for some LTC facilities. It is also possible that entities
other than LTC facilities, such as beneficiary advocacy groups, may
review this rule. We welcome any comments on the approach in estimating
the number of LTC facilities which will review this proposed rule.
We also recognize that different types of entities are in many
cases affected by mutually exclusive sections of some proposed rules,
or that some entities may not find it necessary to fully read each
rule, and therefore for the purposes of our estimate we assume that
each reviewer will read approximately 50 percent of the section of the
rule discussing the 24/7 RN requirement and the 0.55 RN and 2.45 NA
HPRD requirement.
We seek comments on this assumption.
Using the wage information from the Bureau of Labor Statistics, May
2022 National Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/oes_nat.htm, for medical and health service
managers (Code 11-9111), we estimate that the cost of reviewing this
rule is $123.06 per hour, including overhead and fringe benefits.
Assuming an average reading speed of 250 words per minute, and assuming
that two-thirds (67 percent) of this proposed rule pertains to the 24/7
RN and 0.55 RN and 2.45 NA HPRD requirement, with approximately 40,000
words (of which we estimate 20,000 words will be read by reviewers), we
estimate that it would take 80 minutes or 1.33 hours for the staff to
review all the sections of the proposed rule pertaining to the 24/7 RN
and 0.55 RN and 2.45 NA HPRD requirements. For each employee that
reviews the rule, the estimated cost is $163.67 (1.33 hours x $123.06).
Therefore, we estimate that the total one-time cost of reviewing this
regulation is $1,802,989 (163.67 x 11,016).
2. Regulatory Review Costs of Medicaid Institutional Payment
Transparency Reporting
As discussed in the Collection of Information (section III. of this
proposed rule), 52 State Medicaid agencies and approximately 19,907
nursing facilities and ICF/IIDs would be impacted by the proposed
requirements (totaling 19,959 interested parties). Due to the
uncertainty involved with accurately quantifying the number of entities
that will review the rule, we assume that seventy-five percent (75
percent) of these affected entities will proactively review this
proposed rule, or 14,969. (We note that the FY 2023 SNF PPS proposed
rule, 87 FR 22720, had around 18,000 views, as shown at https://www.federalregister.gov/documents/2022/04/15/2022-07906/medicare-program-prospective-payment-system-and-consolidated-billing-for-skilled-nursing-facilities. Some of these views were likely multiple
views by the same reader.) We acknowledge that this assumption may
understate or overstate the costs of reviewing this rule. It is
possible that not all those affected entities will read this proposed
rule, or that there may be more than one individual reviewing the rule
for some of the affected entities. It is also possible that entities
other than State Medicaid agencies or institutional facilities, such as
beneficiary advocacy groups, may review this rule. We welcome any
comments on the approach in estimating the number of entities which
will review this proposed rule. We also recognize that different types
of entities are in many cases affected by mutually exclusive sections
of some proposed rules, or that some entities may not find it necessary
to fully read each rule, and therefore for the purposes of our estimate
we assume that each reviewer will read half of the sections of the rule
discussing Medicaid institutional payment adequacy. We seek comments on
this assumption.
Using the wage information from the Bureau of Labor Statistics, May
2022 National Occupational Employment and Wage Estimates, https://www.bls.gov/oes/current/oes_nat.htm, for medical and health service
managers (Code 11-9111), we estimate that the cost of reviewing this
rule is $123.06 per hour, including overhead and fringe benefits.
Assuming an average reading speed of 250 words per minute, and assuming
that one-third of this rule pertains to Medicaid Institutional Payment
Transparency Reporting, with approximately 20,000 words (of which we
estimate 10,000 words will be read by reviewers), we estimate that it
would take 40 minutes or 0.67 hours for the staff to review portions of
the sections of the proposed rule pertaining to the Medicaid
Institutional Payment Transparency Reporting. For each employee that
reviews the rule, the estimated cost is $82.45 (0.67 hours x $123.06).
Therefore, we estimate that the total one-time cost of reviewing this
regulation is $1,234,194 ($82.45 x 14,969).
Table 34 provides the total estimated regulatory review costs for
the rule, which is $3,037,183.
[[Page 61425]]
Table 34--Regulatory Review Cost
----------------------------------------------------------------------------------------------------------------
24/7 RN and 0.55 RN
and 2.45 NA HPRD
Medicaid institutional payment transparency reporting minimum nurse Total cost
staffing
----------------------------------------------------------------------------------------------------------------
$1,234,194........................................................ $1,802,989 $3,037,183
----------------------------------------------------------------------------------------------------------------
F. Accounting Statement
As required by OMB Circular A-4 (available online at https://obamawhitehouse.archives.gov/omb/circulars_a004_a-4/), we have prepared
an accounting statement in Table 34 showing classification of the costs
and benefits associated with the provisions of this proposed rule. This
includes the total cost for the 24/7 RN and the 0.55 RN and 2.45 NA
HPRD requirements as provided in Table 20, the total cost for the
Medicaid Institutional Transparency Reporting as provided in Table 30,
the total cost for the regulatory review as provided in Table 34, and
Medicare savings due to fewer hospitalizations and emergency department
visits, as well as greater return to home and community, as provided in
Table 28. There are $0 in transfer estimates in the statement. This
statement provides our best estimate for the Medicare and Medicaid
provisions of this rule.
TABLE 35--Accounting Statement: 24/7 RN Requirement, 0.55 RN and 2.45 NA HPRD Requirement, and Medicaid
Institutional Payment Transparency Reporting Requirement
----------------------------------------------------------------------------------------------------------------
Units
Category Estimates --------------------------------------------------------
Year dollar Discount rate Period covered
----------------------------------------------------------------------------------------------------------------
Benefits
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($million/year) 236 2021 7% 2024-2033
247 2021 3 2024-2033
----------------------------------------------------------------------------------------------------------------
Costs
----------------------------------------------------------------------------------------------------------------
Annualized Monetized ($million/year) 3,733 2021 7% 2024-2033
3,930 2021 3 2024-2033
----------------------------------------------------------------------------------------------------------------
G. Regulatory Flexibility Act Analysis (RFA)
The RFA requires agencies to analyze options for regulatory relief
of small entities, if a rule has a significant impact on a substantial
number of small entities. For purposes of the RFA, we estimate that
almost all Skilled Nursing Facilities (NAICS 6231) and Intellectual and
Developmental Disabilities Facilities (NAICS 6232) are small entities,
as that term is used in the RFA (including small businesses, nonprofit
organizations, and small governmental jurisdictions). The great
majority of hospitals and most other health care providers and
suppliers are small entities, either by being nonprofit organizations
or by meeting the Small Business Administration (SBA) definition of a
small business (that is, having revenues of less than $8.0 million to
$41.5 million in any 1 year).
We utilized the revenues of individual SNF providers (from recent
Medicare Cost Reports) to classify a small business, and not the
revenue of a larger firm with which they may be affiliated. As a
result, for the purposes of the RFA, we estimate that almost all SNFs
are small entities as that term is used in the RFA, according to the
Small Business Administration's latest size standards, with total
revenues of $34 million or less in any 1 year. In addition,
approximately 20 percent of SNFs classified as small entities are non-
profit organizations. Therefore, approximately 95 percent of the health
care industries impacted are considered small businesses according to
the Small Business Administration's size standards with total revenues
of $41 million or less in any 1 year. Individuals and States are not
included in the definition of a small entity. According to the 2017
Economic Census, Skilled Nursing Facilities (NAICS 6231) and
Intellectual and Development Disabilities Facilities (NAICS 6232)
together earned approximately $162 billion annually with Skilled
Nursing Facilities earning nearly $119 billion and Intellectual and
Development Disabilities Facilities earning approximately $44 billion.
Overall, the cost is estimated to be between 2.30 and 2.42 percent of
revenues.
Table 36--Regulatory Flexibility Act Analysis
--------------------------------------------------------------------------------------------------------------------------------------------------------
Cost as % Cost as %
Estimated average Estimated average of revenue of revenue
Annual revenue annual cost for annual cost for with 3% with 7%
providers with 3% providers with 7% discount discount
discount rate discount rate rate rate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Skilled Nursing Facilities and Intellectual and $162,451,136,000 $3,733,000,000 $3,930,000,000 2.30 2.42
Developmental Disabilities Facilities.....................
--------------------------------------------------------------------------------------------------------------------------------------------------------
[[Page 61426]]
Individuals and States are not included in the definition of a
small entity. This rule will not have a significant impact measured
change in revenue of 3 to 5 percent on a substantial number of small
businesses or other small entities. As its measure of significant
economic impact on a substantial number of small entities, HHS uses a
change in revenue of more than 3 to 5 percent. At this time, we do not
believe that this threshold will be reached by the requirements in this
proposed rule. Therefore, the Secretary has certified that this
proposed rule will not have a significant economic impact on a
substantial number of small entities.
In addition, section 1102(b) of the Act requires us to prepare a
regulatory impact analysis if a rule may have a significant impact on
the operations of a substantial number of small rural hospitals. This
analysis must conform to the provisions of section 603 of the RFA. For
purposes of section 1102(b) of the Act, we define a small rural
hospital as a hospital that is located outside of an MSA and has fewer
than 100 beds. These proposals pertain solely to SNFs and NFs.
Therefore, the Secretary has determined that these proposals will not
have a significant impact on the operations of a substantial number of
small rural hospitals.
H. Unfunded Mandates Reform Act Analysis
Section 202 of the Unfunded Mandates Reform Act (UMRA) of 1995 also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2023, that
threshold is approximately $177 million. Based on the cost estimates
discussed in this section, we have assessed the various costs and
benefits of the proposed updates to the requirements for participation
for LTC facilities. These proposed updates will not impose new
requirements for State, local, or tribal governments. For the private
sector facilities, the regulatory impact section, together with the
remainder of the preamble, constitutes the analysis required under
UMRA.
I. Federalism Analysis
Executive Order 13132 establishes certain requirements that an
agency must meet when it issues a proposed rule that imposes
substantial direct requirement costs on State and local governments,
preempts State law, or otherwise has Federalism implications. With
regard to the updates to the requirements for participation for LTC
facilities, the provisions in this proposed rule are not intended to,
and would not preempt the applicability of any State or local law
providing a higher standard (in this case, a higher HPRD requirement
for RNs and/or NAs or an RN coverage requirement in excess of at least
one RN on site 24-hours per day, 7 days a week) than would be required
by this proposed rule. To the extent Federal standards exceed State and
local law minimum staffing standards, no Federal pre-emption is
implicated because facilities complying with Federal law would also be
in compliance with State law. We are not aware of any State or local
law providing for a maximum staffing level. This proposed rule,
however, is intended to and would preempt the applicability of any
State or local law providing for a maximum staffing level, to the
extent that such a State or local maximum staffing level would prohibit
a Medicare, Medicaid, or dually certified LTC facility from meeting the
minimum HPRD requirements and RN coverage levels proposed in this rule
or from meeting higher staffing levels required based on the facility
assessment proposed in this rule.
In accordance with the provisions of Executive Order 12866, this
proposed rule was reviewed by the Office of Management and Budget.
Chiquita Brooks-LaSure, Administrator of the Centers for Medicare &
Medicaid Services, approved this document on August 15, 2023.
List of Subjects
42 CFR Part 438
Administrative practice and procedure, Grant programs--health,
Health professions, Medicaid, Older adults, People with Disabilities,
Reporting and recordkeeping requirements.
42 CFR Part 442
Administrative practice and procedure, Grant programs--health,
Health professions, Medicaid, Older adults, People with Disabilities,
Reporting and recordkeeping requirements.
42 CFR Part 483
Grant programs--health, Health facilities, Health professions,
Health records, Medicaid, Medicare, Nursing homes, Nutrition, Reporting
and recordkeeping requirements, Safety.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services proposes to amend 42 CFR chapter IV as set forth
below:
PART 438--MANAGED CARE
0
1. The authority citation for part 438 continues to read as follows:
Authority: 42 U.S.C. 1302.
0
2. Section 438.72 is added to subpart B to read as follows:
Sec. 438.72 Additional requirements for long-term services and
supports.
(a) Nursing facilities services and services delivered in
Intermediate Care Facilities for Individuals with Intellectual
Disabilities. If the State includes nursing facility and/or ICF/IID
services in their MCO or PIHP contracts, the State must include
requirements in these contracts imposing obligations on the MCO or PIHP
to the extent necessary to comply with the reporting requirements in
Sec. 442.43 of this subchapter, and must comply by the first rating
period for contracts with MCOs or PIHPs beginning on or after the
effective date specified in Sec. 442.43(f) of this subchapter.
(b) [Reserved]
PART 442--STANDARDS FOR PAYMENT TO NURSING FACILITIES AND
INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH INTELLECTUAL
DISABILITIES
0
3. The authority citation for part 442 continues to read as follows:
Authority: Sec. 1102 of the Social Security Act (42 U.S.C.
1302), unless otherwise noted.
0
4. Section 442.43 is added to subpart B to read as follows:
Sec. 442.43 Payment Transparency Reporting.
(a) Definitions. (1) Compensation means, with respect to direct
care workers and support staff delivering services authorized under
this part:
(i) Salary, wages, and other remuneration as defined by the Fair
Labor Standards Act and implementing regulations (29 U.S.C. 201 et
seq., 29 CFR parts 531 and 778);
(ii) Benefits (such as health and dental benefits, sick leave, and
tuition reimbursement); and
(iii) The employer share of payroll taxes.
(2) Direct Care Worker means one of the following individuals who
provides services to Medicaid-eligible individuals receiving services
under this part, who may be employed by or contracted or subcontracted
with a Medicaid provider or State or local government agency:
[[Page 61427]]
(i) A registered nurse, licensed practical nurse, nurse
practitioner, or clinical nurse specialist;
(ii) A certified nurse aide who provides services under the
supervision of a registered nurse, licensed practical nurse, nurse
practitioner, or clinical nurse specialist;
(iii) A licensed physical therapist, occupational therapist,
speech-language pathologist, or respiratory therapist;
(iv) A certified physical therapy assistant, occupational therapy
assistant, speech-language therapy assistant, or respiratory therapy
assistant or technician;
(v) A social worker;
(vi) A personal care aide;
(vii) A medication assistant, aide, or technician;
(viii) A feeding assistant;
(ix) Activities staff; or
(x) Any other individual who is paid to provide clinical services,
behavioral supports, active treatment (as defined at Sec. 483.440) or
address activities of daily living (such as those described in Sec.
483.24(b)) for Medicaid-eligible individuals receiving Medicaid
services under this part.
(3) Support Staff means an individual who is not a direct care
worker and who maintains the physical environment of the care facility
or supports other services for residents. Support staff may be employed
by or contracted or subcontracted with a Medicaid provider or State or
local government agency. They include any of the following individuals:
(i) A housekeeper;
(ii) A janitor or environmental services worker;
(iii) A groundskeeper;
(iv) A food service or dietary worker;
(v) A driver responsible for transporting residents; or
(vi) Any other individual who is not a direct care worker and who
maintains the physical environment of the care facility or supports
other services for Medicaid-eligible individuals receiving Medicaid
services under this part.
(b) Reporting requirements. The State must report to CMS annually,
by delivery system and by facility, the percent of Medicaid payments
(which for fee-for-service includes base and supplemental payments as
defined by section 1903(bb)(2) of the Social Security Act, and for
payments from a managed care organization or prepaid inpatient health
plan (as these entities are defined in Sec. 438.2 of this chapter)
includes the managed care organization's or prepaid inpatient health
plan's contractually negotiated rate, State directed payments as
defined in Sec. 438.6(c) of this chapter, pass-through payments as
defined in Sec. 438.6(a) of this chapter for nursing facilities, and
any other payments from the managed care organization or prepaid
inpatient health plan) for services specified in paragraph (b)(1) of
this section, that is spent on compensation for direct care workers and
on compensation for support staff, at the time and in the form and
manner specified by CMS.
(1) Services. Except as provided in paragraph (b)(2) of this
section, reporting must be based on all Medicaid payments (including
but not limited to FFS base and supplemental payments, and payments
from an MCO or PIHP, as applicable) made to nursing facility and ICF/
IID providers for Medicaid-covered services, with the exception of
services provided in swing bed hospitals as defined in Sec.
440.40(a)(1)(ii)(B) of this chapter.
(2) Exclusion of specified payments. The State must exclude from
its reporting to CMS payments claimed by the State for Federal
financial participation under this part for which Medicaid is not the
primary payer.
(c) Report contents and methodology. (1) Contents. Reporting must
provide information necessary to identify, at the facility level, the
percent of Medicaid payments spent on compensation to:
(i) Direct care workers at each nursing facility;
(ii) Support staff at each nursing facility;
(iii) Direct care workers at each ICF/IID, and
(iv) Support staff at each ICF/IID.
(2) Methodology. The State must provide information according to
the methodology, form, and manner of reporting stipulated by CMS.
(d) Availability and accessibility requirements. The State must
operate a website consistent with Sec. 435.905(b) of this chapter that
provides the results of the reporting requirements specified in
paragraphs (b) and (c) of this section. In the case of the State that
implements a managed care delivery system under the authority of
sections 1915(a), 1915(b), 1932(a), and/or 1115(a) of the Act and that
includes nursing facility and/or ICF/IID services in their managed care
organization or prepaid inpatient health plan contracts, the State may
meet this requirement by linking to individual managed care
organization or prepaid inpatient health plan websites. The State must:
(1) Include clear and easy to understand labels on documents and
links;
(2) Verify no less than quarterly, the accurate function of the
website and the current accuracy of the information and links; and
(3) Include prominent language on the website explaining that
assistance in accessing the required information on the website is
available at no cost and include information on the availability of
oral interpretation in all languages and written translation available
in each non-English language, how to request auxiliary aids and
services, and a toll-free and TTY/TDY telephone number.
(e) Information reported by States. CMS must report on its website
the results of the reporting requirements specified in paragraphs (b)
and (c) of this section that the State reports to CMS.
(f) Effective Date. The requirements in this section are effective
[4 YEARS AFTER THE EFFECTIVE DATE OF THE FINAL RULE].
PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES
0
5. The authority citation for part 483 continues to read as follows:
Authority: 42 U.S.C. 1302, 1320a-7, 1395i, 1395hh and 1396r.
0
6. Amend Sec. 483.5 by adding the definitions of ``Hours per resident
day'' and ``Representative of direct care employees'' in alphabetical
order to read as follows:
Sec. 483.5 Definitions.
* * * * *
Hours per resident day. Staffing hours per resident per day is the
total number of hours worked by each type of staff divided by the total
number of residents as calculated by CMS.
* * * * *
Representative of direct care employees. A representative of direct
care employees is an employee of the facility or a third party
authorized by direct care employees at the facility to provide
expertise and input on behalf of the employees for the purposes of
informing a facility assessment.
* * * * *
Sec. 483.10 [Amended]
0
7. Amend paragraph (h)(3)(i) by removing the reference ``Sec.
483.70(i)(2)'' and adding in its place the reference ``Sec.
483.70(h)(2)''.
Sec. 483.15 [Amended]
0
8. Amend paragraph (c)(8) by removing the reference ``Sec. 483.70(l)''
and adding in its place the reference ``Sec. 483.70(k)''.
Sec. 483.35 [Amended]
0
9. Amend Sec. 483.35 by:
[[Page 61428]]
0
a. In the introductory text removing the reference ``Sec. 483.70(e)''
and adding in its place the reference ``Sec. 483.71'';
0
b. Revising paragraphs (a)(1)(i), (ii);
0
c. Adding paragraphs (a)(1)(iii) through (v);
0
d. In paragraph (a)(2) removing the phrase ``paragraph (c)'' and adding
in its place the phrase ``paragraph (e)'';
0
e. Revising paragraph (b)(1);
0
f. . In paragraph (e)(4) removing the phrase ``paragraph (c)'' and
adding in its place the phrase ``paragraph (e)'';
0
g. In paragraph (f)(2) removing the phrase ``paragraph (d)(1)'' and
adding in its place the phrase ``paragraph (f)(1)'';
0
h. Redesignating paragraph (g) as (h);
0
i. Adding a new paragraph (g); and
0
j. In newly redesignated paragraph (h)(2)(i) removing the phrase
``paragraph (e)(1)'' and adding in its place the phrase ``paragraph
(h)(1)''.
The revision and additions read as follows:
Sec. 483.35 Nursing services.
* * * * *
(a) * * *
(1) * * *
(i) Licensed nurses, including but not limited to a minimum 0.55
hours per resident day for registered nurses (RN); and
(ii) Other nursing personnel, in accordance with Sec. 483.71,
including but not limited to a minimum total of 2.45 hours per resident
day for nurse aides (NA).
(iii) The 0.55 hours per resident day for RN and 2.45 hours per
resident day for NA requirement may be exempted under paragraph (g) of
this section for facilities that are found non-compliant and meet the
eligibility criteria as determined by the Secretary.
(iv) Determinations of compliance with hours per resident day
requirements will be made based on the most recent available quarter of
Payroll Based Journal System data submitted in accordance with Sec.
483.70(p) of this part.
(v) Compliance with minimum hours per resident day for RN and NA
should not be construed as approval for a facility to staff only to
these numerical standards. Facilities must ensure there are adequate
staff with the appropriate competencies and skills sets necessary to
assure resident safety and to attain or maintain the highest
practicable physical, mental, and psychosocial well-being of each
resident, as determined by resident assessments, acuity and diagnoses
of the facility's resident population in accordance with the facility
assessment at Sec. 483.71 of this part.
* * * * *
(b) * * *
(1) Except when waived under paragraph (e) or (f) of this section,
the facility must have a registered nurse on site 24 hours per day, for
7 days a week that is available to provide direct resident care.
* * * * *
(g) Hardship Exemption from the Minimum Hours Per Resident Day
Requirements. A facility may be exempted by the Secretary from the
requirements of paragraphs (a)(1)(i) and (ii) of this section if a
verifiable hardship exists that prohibits the facility from achieving
or maintaining compliance. The facility must meet the four following
criteria to qualify for a hardship exemption:
(1) Location. The facility is located in an area where:
(i) The supply of applicable healthcare staff (either RN, or NA, or
both) is not sufficient to meet area needs as evidenced by a medium (20
percent below the national average) or low (40 percent below the
national average) provider-population ratio for nursing workforce; or
(ii) The facility is at least 20 miles from another long-term care
facility, as determined by CMS; and
(2) Good Faith Efforts to Hire. The facility demonstrates that it
has been unable, despite diligent efforts, including offering at least
prevailing wages, to recruit and retain appropriate personnel. The
information is verified through:
(i) Job listings in commonly used recruitment forums found online
at American Job Centers (coordinated by the U.S. Department of Labor's
Employment and Training Administration), and other forums as
appropriate;
(ii) Documented job vacancies including the number and duration of
the vacancies and documentation of offers made, including that they
were made at least at prevailing wages;
(iii) Data on the average wages in the Metropolitan Statistical
Area in which the facility is located and vacancies by industry as
reported by the Bureau of Labor Statistics or by the State's Department
of Labor; and
(iv) The facility's staffing plan in accordance with Sec.
483.71(b)(4) of this subpart; and
(3) Demonstrated Financial Commitment. The facility demonstrates
through documentation the amount of financial resources that the
facility expends on nurse staffing relative to revenue.
(4) Exclusions. Facilities must not:
(i) Be a Special Focus Facility, pursuant to the Special Focus
Facility Program established under sections 1819(f)(8) and 1919(f)(10)
of the Act; or
(ii) Have been cited for having widespread insufficient staffing
with resultant resident actual harm or a pattern of insufficient
staffing with resultant resident actual harm, or cited at the immediate
jeopardy level of severity with respect to insufficient staffing as
determined by CMS, within the 12 months preceding the survey during
which the facility's non-compliance is identified, or
(iii) Have failed to submit Payroll Based Journal data in
accordance with Sec. 483.70(p).
(iv) An exemption under this paragraph does not constitute a waiver
of paragraph (b) of this section. Such a waiver must be granted in
accordance with paragraph (e) or (f) of this section.
(5) Determination of Eligibility. The Secretary will determine
eligibility for an exemption based on the criteria in paragraphs (g)(1)
through (4) of this section. The facility must provide supporting
documentation when requested.
(6) Timeframe. The term for a hardship exemption is 1-year, unless
the facility becomes an SFF facility or is cited for widespread
insufficient staffing with resultant resident actual harm or a pattern
of insufficient staffing with resultant resident actual harm. A
hardship exemption may be extended on a yearly basis, after the initial
1-year period, if the facility continues to meet the exemption criteria
in paragraphs (g)(1) through (4) of this section, as determined by the
Secretary. There are no limits on the number of exemptions that an
eligible facility can be granted.
* * * * *
Sec. 483.40 [Amended]
0
10. Amend Sec. 483.40 by:
0
a. In paragraphs (a) introductory text and (a)(1) removing the
reference ``Sec. 483.70(e)'' and adding in its place the reference
``Sec. 483.71''; and
0
b. In paragraph (c)(2) by removing the reference ``Sec. 483.70(g)''
and adding in its place the reference ``Sec. 483.70(f)''.
Sec. 483.45 [Amended]
0
11. Amend Sec. 483.45 in the introductory text by removing the
reference ``Sec. 483.70(g)'' and adding in its place the reference
``Sec. 483.70(f)''.
Sec. 483.55 [Amended]
0
12. In Sec. 483.55 amend paragraphs (a)(1) and (b)(1) by removing the
reference ``Sec. 483.70(g)'' and adding in its place the reference
``Sec. 483.70(f)''.
Sec. 483.60 [Amended]
0
13. In Sec. 483.60 amend paragraph (a) introductory text by removing
the
[[Page 61429]]
reference ``Sec. 483.70(e)'' and adding in its place the reference
``Sec. 483.71''.
Sec. 483.65 [Amended]
0
14. In Sec. 483.65 amend paragraph (a)(2) by removing the reference
``Sec. 483.70(g)'' and adding in its place the reference ``Sec.
483.70(f)''.
Sec. 483.70 [Amended]
0
15. Amend Sec. 483.70 by--
0
a. Removing paragraph (e); and
0
b. Redesignating paragraphs (f) through (q) as paragraphs (e) through
(p), respectively.
0
16. Section Sec. 483.71 is added to subpart B to read as follows:
Sec. 483.71 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 (including nights and
weekends) 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.
(a) The facility assessment must address or include the following:
(1) The facility's resident population, including, but not limited
to:
(i) Both the number of residents and the facility's resident
capacity;
(ii) The care required by the resident population, using evidence-
based, data-driven methods that consider the types of diseases,
conditions, physical and behavioral health issues, cognitive
disabilities, overall acuity, and other pertinent facts that are
present within that population, consistent with and informed by
individual resident assessments as required under Sec. 483.20 of this
part;
(iii) The staff competencies and skill sets that are necessary to
provide the level and types of care needed for the resident population;
(iv) The physical environment, equipment, services, and other
physical plant considerations that are necessary to care for this
population; and
(v) Any ethnic, cultural, or religious factors that may potentially
affect the care provided by the facility, including, but not limited
to, activities and food and nutrition services.
(2) The facility's resources, including but not limited to the
following:
(i) All buildings and/or other physical structures and vehicles;
(ii) Equipment (medical and non-medical);
(iii) Services provided, such as physical therapy, pharmacy,
behavioral health, and specific rehabilitation therapies;
(iv) All personnel, including managers, nursing and other direct
care staff (both employees and those who provide services under
contract), and volunteers, as well as their education and/or training
and any competencies related to resident care;
(v) Contracts, memorandums of understanding, or other agreements
with third parties to provide services or equipment to the facility
during both normal operations and emergencies; and
(vi) Health information technology resources, such as systems for
electronically managing patient records and electronically sharing
information with other organizations.
(3) A facility-based and community-based risk assessment, utilizing
an all-hazards approach as required in Sec. 483.73(a)(1).
(4) The input of facility staff, including, but not limited to
nursing home leadership, management, direct care staff, the
representatives of direct care employees, and staff providing other
services.
(b) The facility must use this facility assessment to:
(1) Inform staffing decisions to ensure that there are a sufficient
number of staff with the appropriate competencies and skill sets
necessary to care for its residents' needs as identified through
resident assessments and plans of care as required in Sec.
483.35(a)(3).
(2) Consider specific staffing needs for each resident unit in the
facility, and adjust as necessary based on changes to its resident
population.
(3) Consider specific staffing needs for each shift, such as day,
evening, night, and adjust as necessary based on any changes to its
resident population.
(4) Develop and maintain a plan to maximize recruitment and
retention of direct care staff.
(5) Inform contingency planning for events that do not require
activation of the facility's emergency plan, but do have the potential
to affect resident care, such as, but not limited to, the availability
of direct care nurse staffing or other resources needed for resident
care.
Sec. 483.75 [Amended]
0
17. Amend Sec. 483.75 by:
0
a. In paragraph (c)(2) removing the reference ``Sec. 483.70(e)'' and
adding in its place the reference ``Sec. 483.71''; and
0
b. In paragraph (e)(3) removing the reference ``Sec. 483.70(e)'' and
adding in its place the reference ``Sec. 483.71''.
Sec. 483.80 [Amended]
0
18. In Sec. 483.80 amend paragraph (a)(1) by removing the reference
``Sec. 483.70(e)'' and adding in its place the reference ``Sec.
483.71''.
Sec. 483.95 [Amended]
0
19. In Sec. 483.95 amend the introductory text by removing the
reference ``Sec. 483.70(e)'' and adding in its place the reference
``Sec. 483.71''.
Xavier Becerra,
Secretary, Department of Health and Human Services.
[FR Doc. 2023-18781 Filed 9-1-23; 8:45 am]
BILLING CODE 4120-01-P