WHCA/WiCAL is committed in our effort along with AHCA/NCAL and state affiliates around the country to educate CMS on why its recently proposed one-size-fits-all minimum staffing rule for nursing homes is unworkable.

AHCA is working with state affiliates and stakeholders across the country to create 10,000 unique comments to CMS by the deadline of November 6, and WHCA/WiCAL’s goal is to help generate 300 comments from providers and LTC stakeholders across our state. We need your help to reach that goal by Nov. 6 – less than 10 days away!

The recording to AHCA/NCAL’s member webinar on how to submit comments in response to CMS’ minimum staffing proposal is available now. Long term care staff, residents, and family members are encouraged to submit a comment to CMS.

Please review the below information on the proposed rule itself and familiarize yourself with the proposal so you can best explain in your CMS Comment why the proposal is unreasonable and impractical.

Most important for your comment is to be personal and concise. CMS is required to reply to each unique comment. Share your story, and explain how this proposed rule would be counterproductive to your efforts to ensure quality care is delivered to nursing facility residents. Providers are not opposed to increasing the workforce, but the fact is, a rigid, one-size-fits-all minimum staffing mandate will not help workers magically materialize.

Considerations for your comment:

1. Make it personal to your own experience, and emphasize how the rule would impact your ability to ensure quality care for residents.
2. The primary ask should be that CMS should reconsider its proposal and not issue a mandate at all.
3. While emphasizing the primary ask, you may also consider including secondary asks, such as:
   1. IF CMS is going to move forward with a mandate, it should be funded.
   2. IF CMS is going to move forward with a mandate, it should not be implemented until workforce levels return to a more sustainable level.
   3. IF CMS is going to move forward with a mandate, CMS should do away with an arbitrary urban/rural designation, and just create an across-the-board five-year phase-in.
   4. IF CMS is going to move forward with a mandate, CMS should work with the provider community to find a workable way to count LPNs either in the RN or Nurse Aide minimum staffing calculation.
   5. IF CMS is going to move forward with a mandate, the rule should include other workers in the Nurse Aide staffing calculations, such as activities directors, social workers, etc.

Helpful info: AHCA/NCAL’s LTC Trend Tracker now includes minimum staffing data, building-by-building, to show whether a facility would currently be in compliance with the proposed rule, with a ballpark of what you would need to add personnel-wise to meet the current proposed rule. Trend Tracker will also inform you whether your facility is considered ‘urban’ or ‘rural’ for purposes of the rule (see the phase-in bullet below for why this is important).

According to an AHCA analysis of PBJ data, 49% of current nursing facilities do not meet the .55 RN HPRD requirement, and 72% do not meet the 2.45 NA HPRD. Only 19% of homes currently meet both of these requirements. AHCA also estimates that less than 20% of homes have 24/7 RN hours.

Please do not hesitate to contact WHCA/WiCAL CEO Rick Abrams or VP of Government Relations and Regulatory Affairs Jim Stoa if we can be of further assistance as you compose your unique comment and submit through AHCA/NCAL’s comment submission portal.

BACKGROUND ON THE PROPOSED MINIMUM STAFFING RULE

On September 1^st, CMS released its long-awaited minimum staffing rule for nursing homes.  The rule contains mandatory minimum daily staffing requirement for RNs and CNAs as well as requiring that an RN be on-site at the facility 24 hours per day/7 days per week. While there is a phase-in period for both of these components, at this time, more than 80% of the nursing facilities across the country would not be in compliance if the rule went into effect today. In addition, at implementation, we estimate that this rule will cost more than $4 billion annually. There is zero funding in the rule to pay for the mandate.

• What is the number of hours required? Two parts of the rule are key here. The first is the hours per resident day (HPRD) requirement. The rule requires 0.55 HPRD of RN time and 2.45 HPRD of nurse aide time. There is no specific requirement for LPN hours, nor are LPNs included in either the RN or Nurse Aide calculations. In addition, the rule requires that an RN be on site 24 hours per day, 7 days a week. Meeting this standard does not guarantee a facility will meet the 0.55 HPRD RN requirement. This will be a major problem for many providers.
• What workers count? This is the most limiting part of the rule. The 0.55 HPRD can only be met by RNs. The 2.45 HPRD can only be met by nurse aides.
• Is there a waiver? Yes, there is a waiver of the minimum staffing standard for facilities that are making a good-faith effort to try to find workers but cannot get them. However, the waiver process is cumbersome and not user friendly.
• Is this paid for? No. There is no funding for the additional expense of these nurses and nurse aides. Obviously, this is a major flaw of the proposal. There is $75 million for some scholarships and tuition reimbursement programs to help grow the workforce, but nothing to fund these new requirements. CMS’s own estimate is that the total cost over 10 years will be $40.6 billion with an average annual cost of $4.06 billion.
• Is there a phase-in? Different parts of the rule are phased in at different times.

1. 1. The HPRD requirement. This portion of the rule has the longest phase in, which begins once the rule is finalized. For urban buildings, this requirement would be effective three (3) years after it becomes final, for rural buildings this requirement would be effective five (5) years after it becomes final.
   2. The 24-hour RN requirement. The proposal to require an RN be on-site 24 hours per day, for 7 days a week would take effect two (2) years after the publication of the final rule for urban facilities, and three (3) years after the publication of the final rule for rural facilities.
   3. The facility assessment requirement. The proposal includes expanded facility assessment requirements, including using evidence-based methods and requiring facilities to develop a staffing plan to maximize recruitment and retention. This goes into effect 60 days after the publication of the final rule for all facilities.

• What is the penalty for non-compliance? Penalties may include actions from termination of the provider agreement to civil money penalties to directed plan of correction or other enforcement actions.
• Are there disclosure requirements? Yes, CMS will require states to be transparent on the percentage of Medicaid payments spent on compensation for direct care workers and support staff for services in nursing and other facilities. This is like the Medicaid institutional payment transparency provision for specific Medicaid home and community-based services in the Ensuring Access to Medicaid Services proposed rule published in May.