The Centers for Medicare & Medicaid Services’ (CMS) officials said Tuesday that they are confident that facilities will be able to meet the newly finalized staffing mandate’s requirements given the plan to implement it in three phases.

“As the rule’s provisions are carefully calibrated and carefully phased in, we believe that with time, with the careful phase in, facilities can meet the requirements,” officials said during a call with media. “And while some facilities will certainly have to add staff because they have very low staff ratios today … these changes are very much affordable.”

CMS officials acknowledged that some facilities will end up closing, but said that the current situation with inadequate staffing had resulted in poor quality of care being rendered and a change was necessary.

“We cannot accept the status quo,” officials said.

The implementation of the staffing mandate will be staggered, with the first phase beginning within 90 days of the final rule’s official publication, whereby facilities will be required to meet the facility assessment requirements.

The rule is expected to be published on May 10, and the new facility assessment standards will go into effect on August 9, experts told Skilled Nursing News.

The rule mandates a minimum of 3.48 hours per resident per day (HPRD) of total staffing, with specific allocations for registered nurses (RN) and nurse aides.

This standard encompasses 0.55 HPRD of direct RN care and 2.45 HPRD of direct nurse aide care. CMS said that facilities can use a mix of nurse staff, including RNs, LPNs/LVNs, or nurse aides, to meet the additional 0.48 HPRD. 

For exemptions, CMS will monitor quarterly wage reports

The rule does make clear that facilities can seek waivers and be granted exemptions to the 24/7 Registered Nurse (RN) requirement. For instance, if facilities are located in an area where the RN to population ratio is a minimum of 20% below the national average, they may receive an exemption from the 0.55 RN HPRD and an exemption of up to eight hours per day for the 24/7 on-site RN requirement.

About 25% of the facilities would be eligible for such exemptions, officials noted during the call, citing the Impact Assessment section of the rule.

And as for the workforce shortage criteria, facilities would also have to demonstrate “good faith efforts” to hire and retain staff as well as document financial commitment to staffing, officials said. Facilities will need to convey this intent hire by sharing the amount of income they spent on wages as well as by showing that the hiring attempts included paying workers competitive wages.

“The core principle here is that we want every facility across the country to make strong efforts to improve their staffing ratios, to improve the quality of care. And so, while we expect some facilities to qualify for exemptions, we also expect every facility to make a positive step forward to improve their staff,” officials said.

CMS officials emphasized that the exceptions are limited in scope and temporary. Also, providers will have to report information to CMS quarterly if they are availing the exemptions.

Moreover, the exemption and waiver information will be publicly accessible.

“It will be on our nursing home Care Compare website to alert any current or prospective residents that that nursing home is availing that exception,” officials said.

All said, there are financial and logistical hurdles to successfully enforcing the staffing mandate, according to nursing home advocates.

For starters, federal government’s plan to provide $75 million in funds for nurse training is an amount deemed woefully inadequate by advocacy groups. Meanwhile, a KFF Health News analysis reveals that nearly 80% of nursing homes aren’t in compliance with the staffing mandate.

Role of states in funding, enforcement

Officials seem to indicate that the staffing program – and perhaps the exact funding amount – is yet to be fully finalized, with financial assistance expected to be augmented by states.

“One of the key design attributes will be that it just won’t be CMS that will be funding this program,” officials said. “We expect other states to join too. So that’s still being developed,” they said, noting that the funding will likely be more than the amount previously shared. “We’re still finalizing the program.”

Officials also offered some clarity on the enforcement of the requirements, underlining that these will be built into the existing survey process.

“A surveyor would be able to determine as part of the annual recertification process or through a complaint survey [if the requirements are met],” officials said. “And because we now have this Payroll Based Journal [PBJ] data written into the rule, it actually should be pretty straightforward for surveyors to see whether or not a facility meets the standards, especially in comparison to the current standards which can sometimes be difficult to determine objectively.”

As for the self-assessments conducted by facilities to determine their clinical staff needs, state surveys will be used to check whether the self-assessments are in fact accurate.

“That is part of the survey process … making sure that the facilities are doing those thoroughly and doing them using the requirements that we set out in the bolster portion of this rule, which includes the kinds of input that the facilities have to get on those assessments,” officials said.

In the finalized rule, CMS said that it plans to partner with states to bolster nurse recruitment.

“States will be able to invest funds to improve their nurse aide training information and increase the number of financial incentives available. CMS will also work with other partners to amplify impact,” the federal agency shared on Monday.

“We partner with state survey agencies for that process and expect them to use that facility assessment really robustly,” officials said during the call.