The release of a proposed 2023 pay rule Monday afternoon reiterated the Centers for Medicare & Medicaid Services’ commitment to implementing a minimum staffing rule after more than 20 years of debate on the issue. Staffing-related provisions include a new value-based incentive element for total nurse staffing and an official request for comment on the coming direct care staffing requirements.
CMS, however, has much to consider in a yearlong study leading up to an officials staffing rule set to be proposed early next spring.
The agency Monday asked stakeholders to weigh in on at least 17 related issues. They range from how to calculate the measure to who to include and how to account for labor challenges to how much the requirement will cost — and if better outcomes, such as lower hospitalization rates, might provide an offset.
“It’s obviously very important that we have standards of care and that facilities should be meeting those standards,” Ashvin Gandhi, Ph.D., a UCLA health economist who studies staffing and turnover, told McKnight’s Long-Term Care News. “CMS does have to think really carefully about whether and to what degree facilities are going to be able to financially meet staffing requirements. You could have unintentional consequences.”
But increased labor costs and shortages seem unlikely to slow the CMS effort. If anything, the agency’s efforts were bolstered by the April release of a long-awaited National Academies report on nursing home care, which also called for major workforce changes.
“It seems like now is the moment,” Steven Littlehale, gerontological nurse specialist and data analyst with Zimmet Health Care Services Group, said during a recent McKnight’s podcast. “It seems like the planets are aligning in that we may actually see real, authentic minimum staffing requirements that go beyond the hard-to-define terms such as ‘sufficient’ staffing.”
History at work
The basis for today’s staffing rules date back to the 1987 Nursing Home Reform Act, which called for 24-hour LPN coverage and eight hours of RN coverage each day. The law also triggered the need for “sufficient” staff to meet resident needs, but it set no ratios or hourly minimums for other frontline caregivers.
An often-cited but never mandated benchmark of 4.1 hours of direct care per day, per resident was established in a 2001 study.
“That study showed that for long-stay residents, if they didn’t meet that minimum, there was harm or jeopardy to residents,” Charlene Harrington, R.N, Ph.D., professor emeritus at the University of California San Francisco School of Nursing, told McKnight’s. “For 20 years, we have been arguing that CMS needs to set minimum staffing standards. … Facilities, if they’re trying to make money, they just have too much of an incentive not to meet what we know the standard should be.”
She wants CMS to consider adding 24-hour RN coverage and taking the overall minimum above 4.1 — even though at least 60% of nursing homes operate below that threshold now, according to one March study. Washington, D.C is the only state/area with a 4.1 requirement, and just 20 others require per-day, per-patient care totaling 2.5 hours or more.
CMS referred to the 4.1 figure repeatedly in its 2023 proposed pay rule, but said a new study was necessary given changes in the patient mix since then. It also added that a more stringent RN rule could be “an alternative or supplementary approach.
“Greater RN presence has been associated in research literature with higher quality of care and fewer deficiencies,” the agency wrote in requesting comment. “Increasing the number of hours per day that a LTC facility must have RNs in the nursing home would alleviate concerns about LPNs engaging in activities outside their scope of practice in the face of resident need during times when no RN is on site.”
Today’s nursing homes are different places than they were in 1987, with residents who are sicker and often require much more intensive care than the once-typical, long-stay resident. And they’re often being treated by a broader range of caregiving staff.
Observers believe CMS will take that into account when formulating its minimum. CMS acknowledged as much Monday, noting increases in residents with dementia, psychiatric diagnoses and admissions from hospitals. It also cited Arkansas’ regulations including a wide range of therapists and other non-nursing positions as staff.
In Florida in April, Gov. Ron Desantis (R) signed a provider-backed bill that shifted who counts toward filing overall staffing hours to include those delivering dietary, therapeutic and mental health services. The state still requires a 3.6-hour minimum weekly average of per-resident, per-day care provided by CNAs and licensed nursing staffing and at least one CNA on shift per 20 residents.
Lori Porter, CEO of the National Association of Health Care Assistants said her members support a federal minimum, and she’d like to see CNA coverage expressed in a ratio of staff to patients, ideally at 1:10. No matter how CMS approaches the metric, she wants the emphasis to remain on CNAs.
“People who truly know nursing homes realize that 90% of the care a resident requires is from a CNA,” she said. “In that setting, there are very few skilled needs of a resident that require a nurse.”
But Littlehale said accounting for care provided by non-nursing staff should get serious consideration, given the increasing complexity of nursing home patients and the specialties providers are implementing to care for them.
“We really need to encourage flexibility and creativity,” Littlehale said. “What about the facility that sees the value and has access to, for example, therapy aides or more social workers or rec therapy? These are really important players on the interdisciplinary team. Maybe based on your particular unique case mix, you want to really have more of them at the bedside for completely valid reasons.”
How to make acuity count?
Harrington noted the current rule requires more nursing care when patient needs increase, a provision she said has been largely ignored by regulators.
She said CMS would be wise to move beyond time-study methods and build on existing research using simulation models. That would allow the agency to better understand how long certain care, such as assistance with activities of daily living, takes per patient, and how those numbers might change based on a building’s patient population.
“There’s every evidence that the case-mix has increased over time since 2001, so as the acuity increases, the minimum standard probably needs to be higher than the 4.1,” she said. “You can’t just look at what nursing homes do. You have to look at what nursing homes should do.”
One way to do that would be basing acuity on previous months’ MDS submissions to get a read on a facility’s typical patient acuity level. In 2020, Harrington and Mary Ellen Dellefield of the San Diego VA outlined acuity categories based on the Patient Driven Payment Model, creating a guide for determining if nursing home staffing is adequate.
How to measure success?
Providers likely will have time to work up to new standards, and some observers suspect CMS may create tiered goals rather than a single measure of hours per patient day.
The proposed total staffing hours VBP element wouldn’t be added until 2026. It would draw from auditable Payroll Based Journal data, and CMS expects it will be a key way to move the needle on staffing.
“Given the strong evidence regarding the relationship between sufficient staffing levels
and improved care for patients, inclusion of this measure in the SNF VBP Program adds an important new dimension to provide a more comprehensive assessment of and accountability for the quality of care provided to residents and serves to drive improvements in staffing that are likely to translate into better resident care,” the agency said in proposing the VBP addition.
There is little doubt that CMS will make providers’ ability to meet whatever new staffing standards they settle on easily discernible to the public. Against that backdrop, provider associations remain concerned about the unavailability of workers and how it might hurt both compliance and reputation.
“Anyone who wants to can recommend that there be more staff, better staffing, more RN coverage, and we’re all for it — excepting there’s no people,” Ruth Katz, senior vice president of public policy and advocacy for LeadingAge, said in early April. “There is sort of a fear that new requirements could be put out … and then nursing homes punished for not meeting the requirements when there’s just nobody out there to even apply for jobs.”
A March study found the cost of meeting Harrington’s 2020 acuity-based benchmarks would average more than $500,000 per U.S. facility. CMS has said it will consider adequate funding as part of its rule-making process, though it can’t increase its overall spending without Congressional approval.
Gandhi said CMS should make a serious effort to consider providers’ financial concern, and whether it’s hyperbole or reality. If CMS sets its metrics too high, he cautions, CMS could unintentionally lead some providers to reject more Medicaid patients or cut costs in ways that “adversely affect” resident care.