09/01/2023

Federal Staffing Rule Released, Ohio Surveys for AL Waiver, Case Mix

Federal Staffing Rule Released, Ohio Surveys for AL Waiver, Case Mix

The world didn’t stop turning while we were at the LeadingAge Ohio Annual Conference & Trade Show this week. Most importantly, a long-awaited draft rule for staffing requirements for nursing facilities was released this morning, following many months’ delay while under review of the Office of Management & Budget (OMB). Other critical updates include more clarity pertaining to how the reimbursement increases set in Ohio’s SFY 2024-2025 budget will be operationalized, particularly relative to assisted living waiver and nursing facilities.

Here are the items our members need to know as they head into the long holiday weekend:

Proposed Staffing Rule

CMS released the proposed rule early this morning with a press release and fact sheet. The rule comes after a leak of an Abt study earlier this week outlining ambiguous results. Early coverage includes:

• WSJ: Nursing Homes Must Boost Staffing Under First-Ever National Standards
• AP: US will regulate nursing home staffing for first time, but proposal lower than many advocates hoped
• McKnight’s: BREAKING: CMS issues first-ever nursing home staffing mandate

The proposed rule establishes a 24 hour/7 day a week requirement for RN coverage, minimum RN and nurse aide hours per resident day, adds language to the facility assessment requirement, and includes enforcement remedies, limited exemptions, and requires states to report the portion of total payment that is attributed to staffing costs. The rule notes that these requirements will be phased in over time.

The following is more detail regarding each of the proposals:

• CMS proposes to revise § 483.35(b) to require an RN to be on site 24 hours per day and 7 days per week.
• CMS proposes to amplify 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 nurse aide (NA) HPRD
• CMS is considering and asking for comments on whether to include a minimum total nurse staffing standard, in addition to the 0.55 RN and 2.45 NA HPRD standards.
• CMS proposes to revise the existing Facility Assessment requirements at § 483.70(e) by moving the provisions to a standalone section and modifying the 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.
• Regarding the effective date, the rule outlines a phased-in approach:
  • The proposal for the Facility assessment requirements would take effect 60-days after the publication date of the final rule. 
  • The proposal that the RN be on site, 24 hours per day, for 7 days a week would take effect 2 years after publication of the final rule;
  • CMS proposes 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.
  • 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
  • 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 for rural areas.
• Exemption from the proposed minimum HPRD standards would be available only in limited circumstances, where all four of the following criteria are met:
  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.
• The rule proposes that enforcement actions / 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 monetary penalties.
• CMS also proposed 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.
•  

LeadingAge is meeting with CMS later today and reviewing the rule, so members are encouraged to tune into their inbox as more updates and information are shared.

LeadingAge has issued an initial statement reacting to the rule:

“To say that we are disappointed that President Biden chose to move forward with the proposed staffing ratios despite clear evidence against them is an understatement. 

We share the Administration’s goal of ensuring access to quality nursing home care. This proposed rule works against that shared goal. One-size-fits-all staffing ratios don’t guarantee quality, as the Administration’s own Abt research findings made clear. That aside, it’s meaningless to mandate staffing levels that cannot be met.

There are simply no people to hire—especially nurses. The proposed rule requires that nursing homes hire additional staff. But where are they coming from? To serve older adults and families, nursing homes must have the resources, including staff, to serve them. Without that, there is no care. 

Funding for training programs – while a huge need, to be sure – is simply not enough at this point. America’s under-funded, long-ignored long-term care sector is in a workforce crisis. The Biden Administration has in this initiative an opportunity to change the narrative surrounding nursing homes. Commit to real solutions: prioritize immigration reform to help build the pipeline, increase reimbursement rates to cover the cost of care and increase wages. 

Nonprofit and mission-driven nursing homes will be forced to reduce admissions or even close if this rule is finalized—a needless outcome that will cause older Americans and families to suffer. The Biden White House in 2022 set out to create policy based on research. If neither study nor practice nor reason guide our federal regulations, how can CMS justify them?” 

LeadingAge is actively reviewing the rule and will share information with membership as it is available. LeadingAge Ohio encourages members to tune into their inbox for the complete summary of the draft rule.

Ohio Departments of Aging, Medicaid survey AL Waiver, Case Mix

Last week the Ohio Department of Aging released a survey to assisted living waiver providers to gather information about the memory care services that are currently provided.  On August 25, 2023, ODA send the online survey via email to every ODA-certified Assisted Living provider.  The survey will close on September 6, 2023. LeadingAge Ohio strongly encourages all waiver-participating members to complete the survey, which the Administration will use to inform the development of rules around a memory care add-on payment that was authorized in HB33.

This morning, the Ohio Department of Medicaid (ODM) distributed a survey to nursing homes asking them to choose between freezing their case mix at the March 2023 rate or moving forward with completing the optional state assessment (OSA) for the remainder of the biennium. LeadingAge Ohio had previously shared information for providers making this decision in last week’s edition of The Source. The notice also included clarifying language pertaining to how providers should track and bill PA1 / PA2 residents: “If a new or existing resident groups into the PDPM PA1 or PA2 group, then the flat rate must be billed for the time that MDS is current, whether or not the facility case mix is frozen. If a new or existing resident groups into a higher acuity category while the facility case mix score is frozen, the rate will be the frozen rate. The freeze relates to the facility case mix score, not the case mix score of the individual residents.” The email notice, including survey links and instructions, came from MDSCaseMix@medicaid.ohio.gov. Providers have until October 1 to complete the survey.

LeadingAge Ohio will continue to monitor late-breaking policy news. Questions regarding any of these issues may be directed to Stephanie DeWees, Quality & Regulatory Specialist for Long-term Care at sdewees@leadingageohio.org or Susan Wallace at swallace@leadingageohio.org.