The staffing mandate will cost the industry $5.8 billion over ten years, creating the need for an additional 101,500 FTEs nationwide, with significant costs attributed to hiring nurse aides and registered nurses (RNs), according to analysis by CliftonLarsonAllen.

In a recent webinar hosted by CliftonLarsonAllen, Deb Emerson, Principal at CLA, and Jennifer Boese, Director of Health Care Policy & Innovation at CLA, discussed the implications of the proposed and final CMS staffing rules for skilled nursing facilities, and the various details pertaining to facility assessment requirement and exemptions – and how operators can preemptively work to achieve success.

The CLA experts advised that provides review the language of the rule carefully and read the lengthy document as well oppose penalties since acceptance means that these compound over time.

“The industry kind of created a firestorm with what CMS was proposing, resulting in the 45,000 comments that they received,” Emerson said. “As an industry, we were really hoping that there would be some changes to that, which we didn’t see. We saw some minimal changes.”

Since the final rule added a total of 3.48 HPRD, combining the 0.55 HPRD for RNs and 2.45 HPRD for nurse aides, leaving the remaining 0.48 HPRD to be filled by any nursing staff, including LPNs, Emerson said it is important to adjust staffing based on resident needs beyond just meeting the numerical standards.

She added that the total is not case-mix adjusted, meaning it applies regardless of resident acuity.

Hardship exemptions

The rules also include hardship exemptions for facilities unable to meet staffing requirements due to geographic or workforce constraints.

Facilities must be located 20 miles from the nearest nursing home and have demonstrated a good faith effort to hire and retain staff, Emerson said. She noted that failing to submit PBJ data in a timely manner, being on the special focus list, or having widespread staffing deficiencies resulting in harm would disqualify a facility from exemptions.

CMS has provided a phased implementation timeline, acknowledging the different challenges faced by urban and rural providers. Urban areas have two years to meet the 24/7 RN requirement and three years for the 3.48 HPRD. Rural areas have three years for the 24/7 RN requirement and five years for the full staffing requirements.

“CMS does acknowledge that there is a different workforce challenge in rural areas compared to urban or metro areas…When we look at urban or metro areas in the proposed rule, the phase-in period includes three phases,” Emerson said. 

While the proposed rule indicated facilities must be located 20 miles from the nearest nursing home and have demonstrated a good faith effort to hire and retain staff, CMS removed the 20 mile requirement in the final rule. Instead, CMS required that workforce must be unavailable as measured by having a nursing workforce per labor category that is a minimum of 20% below the national average for the applicable nurse staffing type (calculated by CMS using BLS/Census data)

The proposed rule had 60 days for the facility assessment but the final rule changed that to 90 days.

“Phase two is extended to three years for the 24/7 requirement, and phase three is extended to five years for rural providers to implement the 2.5 and 0.55 requirements,” Emerson said. “CMS has really tried to extend this because of Congress’s ability to do a look-back period.”

Next steps: enhanced facility assessments

The final rule also introduces enhancements to facility assessments, requiring facilities to use evidence-based methods to determine staffing needs based on resident acuity.

These assessments must include input from various stakeholders, including leadership, management, direct care staff, and potentially residents and their representatives, Emerson said. The assessments should cover staffing plans, recruitment, retention strategies, and align with the QAPI program.

Enhanced facility assessments are required within 90 days of the final rule’s publication date, which was May 10, setting the due date for August 8. Boese advised operators to review the final regulations and understand their implications thoroughly.

She said it is important for operators to finish enhanced facility assessments within 90 days, and recommended conducting a gap assessment to identify areas needing improvement and integrating these findings into strategic and financial planning to ensure compliance.

Boese also mentioned the potential for legal challenges or changes in administration that might alter the rule’s implementation. However, she urged operators to prepare as if the rule will take effect, given the trend towards increased staffing mandates at both state and federal levels.

Boese urged operators to read the final rule, which is extensive but offers insights into CMS’s thinking. For those who find it too lengthy, she suggested alternative resources like fact sheets, summary blogs, and webinars, and recommended seeking outside help if necessary.

“We encourage everybody to review the final regulation itself,” she said. “You can see where CMS is going and what their thinking is. If you’ve never read a regulation, it’s its own unique type of writing. But CMS does give you some insights into what it’s thinking.”

Boese added that the enhanced facility assessment requirement applies universally, regardless of the facility’s location, and advised facilities to start assessing their current status and identifying gaps to ensure compliance over the next few years, regardless of potential legal challenges or changes in administration. She noted that many states already have similar mandates, suggesting that federal compliance is a logical next step.

“It’s not a big leap to think that at some point, these are going to be in effect at the federal level as well,” she said. “Therefore, it’s really a good exercise to begin putting yourself on that path towards compliance.”

She also advised facilities to integrate these new requirements into their strategic and financial planning, considering the potential need for new operational assessments and creative staffing solutions. Boese warned against the strategy of simply accepting penalties for non-compliance, as CMS tends to increase penalties significantly over time.

“I’ve dealt with hospitals and … where they did that as well,” she said. “They chose to take initial penalties as opposed to posting what they needed to post online because it was so difficult to do initially. But CMS watches that.”