Skilled nursing providers will not have to go through a stand-alone application process to be exempted from provisions of a new federal staffing mandate, an official with the Centers for Medicare & Medicaid Services said Wednesday. 

Instead, exemptions will be granted only when a nursing home shares required hiring and financial information with state surveyors or CMS.

“To be clear, long-term care facilities do not need to apply for an exemption,” CMS Deputy Director for the Center for Clinical Standards and Quality Adam Richards said during a national stakeholder call. 

In the final rule released Monday, CMS retained a policy proposed in September that only allows nursing homes to learn if they qualify for an exemption after they’ve been surveyed. That comes as a major concern to providers at a time when required annual surveys have been shown to be far behind schedule in almost every state.

Adam reinforced that interpretation Wednesday, adding that the survey-first approach allows regulators “to assess the health and safety of residents.”

“The intent of a survey by CMS is to ensure that there are not larger, more serious quality-of-care issues that are stemming from insufficient staffing before granting an exemption,” Richards said. “This type of safeguard is not something we can necessarily do through an application process or through a blanket exception.”

CMS estimates that around 25% of nursing homes could qualify for the nursing hours exemption, a senior policy advisor for the agency told members of the media on Tuesday. But many questions remain about how those exemptions, and others for a 24/7 requirement for an on-site registered nurse, persist among providers.

Exclusions, timelines in play

Richards said Wednesday that surveyors who find facilities non-compliant with the minimum staffing requirements — but also not excluded by being a Special Focus Facility or certain other criteria — would then be asked to document a “good faith effort to hire and retain staff.” That would include financial commitment demonstrating attempts to achieve adequate staffing.

Once that documentation is submitted to either the state or to CMS and transparency requirements are met, a facility can be granted an exception. No timeline for exemption notification was given on Wednesday.

Richards, however, did clarify that the “time-limited” exemptions could be good for as long as it takes for a facility to be re-surveyed.

“Following the initial survey to determine eligibility, a facility will be re-evaluated at every recertification as to whether it is eligible for a renewal of a hardship exception,” Richards said. “Of course, we strongly encourage facilities to conduct a facility assessment and to work expeditiously to meet the minimum staffing requirements.”

That is a change from the proposed rule, LeadingAge Director of Nursing Home Quality and Policy Jodi Eyigor noted during her organization’s own call with members later Wednesday. Initially, Eyigor said, CMS had proposed a 1-year limit on exemptions.

“CMS said, ‘We recognize we don’t always get out there for a standard survey within one year, so your exemption is good until your next standard survey,’” she explained.

For as long as providers are operating under any staffing exemption, they will be required to post signs to that effect and notify all residents and prospective residents about the exemption and how far away they are from meeting a given requirement, Eyigor also said.

She noted that the rule allows an exemption to be revoked should a nursing home violate one of the exclusionary criteria before its next survey. Besides Special Focus selection, failure to submit PBJ data or being cited for inadequate staffing at level H or higher in a 12-month period can disqualify providers.

Deeper concerns

Other questions on the stakeholder call revolved largely around the agency’s willingness to move forward with the staffing rule during an ongoing nursing shortage and broader workforce crisis.

Several CMS officials defended their rule-making process and pointed out the rule’s long walk-up, including a five year period for rural nursing homes to meet the final element. But leaders also said they weighed heavily consumer complaints about quality of care.

“As a part of the public comment period, we received many stories that shared instances of residents waiting and hoping for someone to help in their time of need, many going hours without toileting assistance, days without showers, having medication passes delayed or missed entirely,” said Dora Hughes, MD, acting chief medical officer and acting director of the Center for Clinical Standards and Quality.

“In experiencing preventable safety events such as false and pressure ulcers, many family members within their comments also recounted efforts to help stretched and exhausted nursing staff and care teams provide basic support to their loved ones,” she added. “We also received many comments from labor unions and labor organizations with ideas and feedback on ways to strengthen the rule and how we should enforce the minimum nurse staffing requirements, including by ensuring that direct care staff, the nurses who are intimately familiar with the unique needs of their residents, have a voice in identifying staff and resource needs to deliver safe quality care.”

Hughes asked for continued partnership as implementation begins 90 days from now with resident assessment requirements for every Medicare-certified facility in the US.

Jean Moody-Williams, deputy director of the Center for Clinical Standards and Quality, said implementation dates, exemptions and statutory waivers show CMS’s commitment to giving providers flexibility, as does a new $75 million staffing campaign to increase the number of nursing home nurses and enhance residents’ safety.

Moody-Williams said the campaign would provide financial incentives for nurses, such as tuition reimbursement.

“We will also be making it easier for individuals to become CNAs by streamlining the process for enrolling and training programs and finding placements in nursing homes,” she said. “For example, we’ll be working with states to improve the functionality of their training websites. They make it easier for people to find the locations of state-approved nurse aide training programs.”

CMS also plans to launch a new web page as a hub for information on the campaign and career paths, and the agency is encouraging states to match federal funding with their own initiatives.