The Centers for Medicare & Medicaid Services (CMS) published final rules setting nurse staffing standards for nursing facilities, 89 Fed. Reg. 40876 (May 10, 2024), as promised by President Biden’s nursing home reform agenda. The final rules establish three separate and independent nurse staffing requirements: (1) a facility assessment process, (2) 3.48 hours per resident day (HPRD) of total nursing care (.55 HPRD registered nurse (RN), 2.45 HPRD nurse aide, and .48 of RN, nurse aide, or licensed practical nurse), and (3) RNs 24 hours per day, seven days per week in every nursing facility. This Alert discusses the facility assessment process, whose revised requirements become effective for all facilities on August 8, 2024. The numerical staffing requirements do not go into effect for two to five years, depending on whether the facility is rural or non-rural.
Facility assessment is not actually a new requirement for nursing facilities. The 2016 revisions to the Requirements of Participation for nursing facilities created the facility assessment process, 42 C.F.R. §483.70(e), explicitly instead of requiring specific staffing ratios. Although the State Operations Manual, Appendix PP, provided additional guidance to surveyors for the process mandated by the 2016 final rule, surveyors rarely cited noncompliance with the requirement and the relatively few citations led to financial penalties for, at most, a handful of facilities.
The 2024 staffing rule moves the facility assessment requirement to its own regulatory provision, §483.71, both to emphasize the importance of the process and to complement the minimum numerical staffing standards (89 Fed. Reg., 40906). The 2024 rule requires each facility to conduct and document a facility-wide assessment to determine the resources (including staff numbers, competencies, and skill sets) that are needed to care for its residents during both day-to-day operations and emergencies. The facility assessment must be reviewed and updated annually, as necessary, and whenever the facility plans for or has any change in its facility or population that would require a substantial change to any part of the assessment (for example, adding dialysis services or bariatric residents). The facility assessment must include nursing home leadership, direct care staff, and, new at §483.71(b)(1)(iii), “must also solicit and consider input received from residents, resident representatives, and family members.”
Other additions to the facility assessment process in 2024 are new requirements that facilities use “evidence-based data-driven methods” to determine the staffing needs of their residents and that the assessment be “consistent with and informed by individual resident assessments as required under §483.20.” New regulatory language also incorporates guidance from Appendix PP.
The preamble to the 2024 final rule includes multiple statements that “many” facilities will find from their facility assessment that they need to staff at higher levels than the numerical standards, which will not go into effect for years. (emphasis added below)
“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. Often, that will require higher staffing than the minimum requirements. The additional requirements 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 (baseline).” 89 Fed. Reg., 48883
“We expect that many facilities will need to staff above the minimum standards to meet the acuity needs of their residents depending on case-mix and as mandated by the facility assessment required at § 483.71.” 89 Fed. Reg., 40891
“We emphasized in the proposed rule and reiterate here that facilities are also required to staff above the minimum standard, as appropriate, to address the specific needs of their resident population (88 FR 61369). We expect that most facilities will do so in line with strengthened facility assessment requirements at § 483.71 (88 FR 61368).” 89 Fed. Reg., 40892
“all LTC facilities must provide adequate staffing to meet their specific population’s needs based on their facility assessments. In many cases, facilities will need higher levels of staffing as a result.” 89 Fed. Reg., 40948.
Higher staffing levels for many facilities will reflect their residents’ acuity:
“if the facility assessment was conducted according to the requirements finalized in this rule, LTC facilities should know the number of staff, the competencies, skills sets they need, and the other resources needed to care for residents in their facilities. This should enable LTC facilities to adjust their staffing and other resources to compensate for resident acuity and changes needed in daily staffing.” 89 Fed. Reg., 40908
“LTC facilities should continue using the facility assessment to determine staffing needs above the finalized minimum standards to provide safe and quality care based on resident acuity.” 89 Fed. Reg., 40912
Many factors in both the regulatory language and preamble indicated that the facility assessment process would be more meaningful in 2024 than it has been since it was first required in the 2016 revision to the Requirements of Participation:
CMS refers to Facility Assessment 172 times in preamble
CMS says it would prepare a “template” for facilities to use
CMS stresses in regulatory language and in the preamble (quoted above) that the facility assessment process will show that “many” facilities need to staff at higher levels than the mandatory minimum levels
CMS increases cost estimates for conducting facility assessment from 22 hours total staff time ($1,758) in the proposed rule to 62 hours ($4,955) (pp. 40938-40939) in the final rule
New references to facility assessment are added to regulatory language on quality assurance and performance improvement (QAPI), infection control, and training requirements
However, CMS’s implementation of the expanded facility assessment requirement remains unclear. CMS has three duties with respect to regulating nursing homes. It must specify (1) requirements that facilities must meet in order to be certified for Medicare or Medicaid, or both, (2) guidance for surveyors in how to conduct surveys to determine compliance, and (3) regulations and guidance to determine how and when to impose penalties for noncompliance. To date, CMS has taken limited action to carry out these duties for the facility assessment process.
CMS declined to prescribe a method for conducting facility assessment. It did not adopt the proposal of some resident advocates to require facilities to choose from among specific “evidence-based, data-driven” methodologies (such as the system devised by Charlene Harrington and colleagues or the Patient-Driven Payment Model (PDPM), the Medicare prospective payment reimbursement system that includes 25 case-mix adjusted nurse staffing groups), just as it identifies a specific methodology that all facilities must use for conducting resident assessments. The concern is that if facilities are permitted to conduct the facility assessment process however they choose, it is difficult, if not impossible, for surveyors to determine compliance.
With respect to surveys, CMS indicates in the preamble that it will provide additional guidance for surveyors on determining compliance of each staffing component before the component’s effective date. The facility assessment’s August 8 effective data gives CMS little time to issue detailed guidance.
CMS writes in the preamble that it intends to rely largely on the standard survey process to determine compliance with staffing requirements, although it also acknowledges some attention to data from the Payroll-Based Journal (PBJ). Many resident advocates supported citing some staffing deficiencies using off-site analysis of PBJ data, as a companion process to on-site surveys.
CMS also indicates that it will continue to use the regular enforcement system, including the substantial compliance standard, informal dispute resolution, and the opportunity for administrative and judicial appeals. CMS declined to require two enforcement mechanisms that some residents’ advocates proposed – automatic civil money penalties when PBJ data submitted by facilities show noncompliance with a numerical staffing requirement and automatic denials of payment for new admissions when facilities do not meet staffing requirements.
Without effective implementation of the facility assessment process, many facilities are likely to focus solely on the numerical requirements in the final rule. Many facilities will seek (and receive) exemptions from these requirements, as permitted by the final rule. The result would be continued understaffing by nursing facilities, undermining the promise of the President’s reform agenda to strengthen staffing.
Effective implementation of the facility assessment process is necessary to ensure that staffing levels, competencies, and skill sets reflect residents’ acuity as well as numerical standards. The challenge and the opportunity for residents and their advocates are fulfilling the language and promise of the expanded facility assessment process to ensure that all residents receive the care and services they need.
May 23, 2024 – T. Edelman