Background
In direct response to the significant challenges experienced by long term care (LTC) facilities throughout the COVID-19 pandemic, the Biden-Harris Administration announced its commitment to improving safety and quality of care. During the March 1, 2022 State of the Union address, President Biden reaffirmed the Biden-Harris Administration’s commitment to protecting residents and staff of nursing homes. The Biden-Harris Administration has since taken steps to establish new minimum staffing ratios within nursing or skilled nursing facilities (SNFs), increase scrutiny of poorly performing nursing homes, and improve quality care transparency for customers seeking a SNF.
In support of these goals, the Centers for Medicare and Medicaid Services (CMS), acting under the direction of the Department of Health and Human Services, issued a proposed rule in the federal register in April titled Fiscal Year 2023 Skilled Nursing Facility Prospective Payment System Proposed Rule (Proposed Rule). This Proposed Rule contains three provisions likely to impact staffing at LTC facilities in the coming years. The comment period for the Proposed Rule closed on June 10, 2022. More than 6,800 public comments were submitted.
Proposal to Adopt the Total-Nursing-Hours-Per-Resident-Day Staffing Measure for Purposes of the Value Based Purchasing Program Beginning in Fiscal Year 2026
CMS proposed to adopt a Total Nursing Hours per Resident Day Staffing measure beginning Fiscal Year 2026, citing the impact of nurse staffing on patient outcomes and quality of care. The proposal would add this measure for purposes of the SNF Value Based Purchasing (VBP) Program, which currently utilizes only hospital readmission rates as a measure. Thus, by adding Total Nursing Hours per Resident Day, adequate nurse staffing is likely to significantly impact incentive payments available to nursing homes moving forward. The proposal is slated for Fiscal Year 2026 to provide SNFs with sufficient time to prepare and become familiar with the new measure.
The staffing measure proposes to use auditable electronic data reported to CMS’s Payroll Based Journal system to calculate total nursing hours (including registered nurses and licensed practical nurses) per resident day. The measure also uses a count of daily resident census information derived from Minimum Data Set resident assessments. Analyzed together, the quarterly calculation intends to create a simple average that accounts for the variety of staffing and resident-care needs of facilities across the country. A SNF’s staffing performance will then be compared to the average and will factor into its overall VBP incentive payment outcome.
To support this VBP expansion, CMS cited its own Reports to Congress on the Appropriateness of Minimum Nurse Staffing Ratios in Nursing Homes from 2001. CMS’s Report found that the level of nurse staffing is associated with patient safety, patient functional status, and patient experience. Since 2015, SNFs have been required to electronically submit direct care staffing information based on payroll and other auditable data to CMS’s Payroll Based Journal system. The system has gathered staffing information on registered nurses, licensed practical nurses, and other types of medical personnel. CMS has also gathered information on staff turnover, tenure, and hours of care provided by each category of staff per resident day.
CMS’ data indicates a wide variability in staffing levels across SNFs. As recently as 2020’s fourth quarter, SNFs reported a spectrum of 2.81 to 5.93 nurse staffing hours per resident day. However, CMS has observed an overall increase in staffing levels since April 2018, when staffing measures were initially incorporated in the Nursing Home Compare Five-Star Quality Rating System and Medicare users began viewing how a nursing home’s staffing impacts their quality of service.
Request for Information on the Potential Creation of Minimum Staffing Requirements in Long Term Care Facilities
Second, CMS requested information on addressing direct care staffing requirements, especially those for registered nurses and licensed practical nurses. CMS also welcomed comment on any additional direct care staff that should be considered beyond nurses.
Current regulations require a “sufficient number” of licensed nurses and other nursing personnel 24 hours a day to meet residents’ needs. In addition, a registered nursing must be in the facility for eight consecutive hours a day, for seven days a week. Previous CMS research has identified that facilities with staffing levels below 4.1 hours per resident day for long stay residents (i.e., stays of 90 days or more) may provide care that results in harm and jeopardy to residents. While a staffing level of 4.1 hours per resident day continues to be the most common number utilized to assess adequacy of nursing staff at LTC facilities, a recent study reflecting 13,500 nursing homes reported that certified nursing assistants performing activities of daily living ranged from 2.3 to 2.5 hours per resident day. Thus, the potential changes to staffing levels at LTC facilities being considered by CMS is likely to establish a minimum staffing requirement for nurses and other direct care workers that reflects a specific number of direct care hours per resident day. Another approach being considered by CMS may mandate the presence of a registered nurse in a nursing home for more hours per day than is currently required, potentially up to 24 hours a day (from eight hours currently), seven days a week, subject to statutory waiver.
Additional Request for Comment Related to Future Skilled Nursing Facility Value Based Purchasing Program Expansion Polices
Finally, CMS sought stakeholder input on the implementation of a Nursing Home Staff Turnover measure for use in the SNF VBP Program. Staff turnover has been identified as a meaningful factor in nursing home quality of care and quality outcomes. Accordingly, CMS has proposed to adopt a staffing turnover measure in the SNF VBP Program in the FY 2024 SNF Prospective Payment System (PPS) Proposed Rule.
This potential measure would assess the percentage of total nursing staff that have left a SNF over the last year. Developed using data from CMS’s Payroll Based Journal system, the Nursing Home Staff Turnover measure would include annual turnover for total nurses (including registered nurses and licensed practical nurses). Similar to the proposed Total Nursing Hours per Resident Day Staffing measure, high nursing staff turnover may negatively impact nursing homes’ financials through decreased VBP incentive payments.
CMS began publicly reporting on a staffing turnover measure on the Care Compare tool offered by the Department of Health and Human Services in January 2022. The information will additionally be available in the Nursing Home Five-Star Quality Rating System beginning in July 2022.
Conclusion
As the foregoing proposal and request for information suggests, CMS has targeted staffing at nursing and LTC facilities as a key priority area. Though no changes are immediate, nursing home employers should evaluate their current staffing levels and rates of turnover to determine how drastically the proposed regulations may impact supplemental staffing needs in the coming years.
The Healthcare team wishes to gratefully acknowledge the significant contribution of Marina Fleming, a summer associate.
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